State v. Lull

Cutting, J. — First. —- It is contended, that the witness, the owner of .the goods alleged to have been stolen, should first have stated what kind of goods were taken, or given some description tending to identify the same, before the goods were exhibited to him. This proposition assumes, that every merchant or trader must necessarily know, and be able to state from memory, the amount and description of every article kept in his store, and in default thereof, to be the proper victim Of plunder and robbery. We think that few merchants would subscribe to such a doctriue, or if they did so, that the principal item in their balance sheets might be that of profit and loss; whereas we can readily perceive, and daily experience proves, that a person may identify property as belonging to himself from inspection, which otherwise might have escaped his recollection. Second. — -Because the witness was permitted to refresh his recollection by, and to read a list of articles from a schedule made by his .clerk in his presence, and under his direction and inspection. “It does not seem to be necessary, that the writing should have been so made by the witness himself, nor that it should be an original writing, ■provided, after inspecting it, he can speak to the facts from his own recollection.” 1 G-reenl. Ev. § 436. So the witness in this case read a description of the prices of the goods named in the schedule, made under his direction and [249] Inspection, and testified to tbeir correctness; thus both the paper and its use comes within the rule. Third. —- Objection is made to the exhibition of the goods to the witness in the presence of the jury, before any evidence was offered to prove that the goods were taken from the store, &c. Wo can perceive no foundation for the exception; if there be any, it may be classed with the first objection and overruled for the same cause. Fourth. — This is similar to the second, with the additional objection, that the question is leading and irrelevant. As to the former, the Court have had that subject under consideration in other cases and have come to the conclusion that as to the admissibility of such questions, it is a matter within the discretion of the presiding Judge. As to the latter, its relevancy becomes apparent upon the supposition that the witness had identified the goods in the bill with those that had been stolen. Fifth. — The envelopes and paper purporting to be a pardon, under the instructions were properly submitted to the jury, as evidence tending to show the defendant’s connection with the goods which were found in his trunk. Evidence had previously been introduced tending to show that the trunk, in which the goods had been found, belonged to the defendant; the envelopes and pardon were not only cumulative testimony on that point, but also proved the defendant’s knowledge of its contents. It may be argued, it is true, that the pardon might prejudice the minds of the jury, by showing that the defendant' had previously been convicted of a felony, and thereby impeach his character, which is presumed to be good until implicated by testimony introduced by the government, which could not be done if the defendant relied solely upon the legal presumption. But it is not unusual for evidence to be introduced, de bene esse, and afterwards to be wholly discarded; or for documents to be introduced which might establish two facts, one admissible and the other not. From necessity, then, such documents may be read to the jury, under proper in [250] structions by the Court for them wholly,to disregard every other consideration than the one for which the paper was admitted, which appears to have been done in this case. Exceptions overruled. Shepley, C. J., and Rice and Hathaway, J. J., concurred.