Opinion of the Court.

they are surprised by the way a witness recollects a thing it is within the discretion of the court to allow counsel to direct the attention of the witness to something which may refresh his recollection.

"By the Court:

"Q. Do you recollect this conversation in view of your attention being now called to it?

"A. I do not recall distinctly where I had that interview, but I think it must have been at the station at Exeter.

"Q. It is not a question of where it must have been, but whether you recall it now.

"Q. Let me refresh your recollection a little further. Did you testify before the grand jury that you said to him something about the bond, and he said, Mr. Dorr, I will state to you I am not going away?'

"A. Yes, sir; I did.

"Mr. Streeter: I object to the reading here before this tribunal of the records taken before the grand jury — records of the grand jury room and I renew the objection I took when my brother first put it in, two or three minutes ago. I renew the objection I then took to the production of grand jury records before this court.

"Mr. Branch: I am not.

"The Court: It is competent.

"Mr. Streeter: I except.

"Q. And did he not say, 'I will get the bonds for you as soon as I can?'

"A. Yes; I can assent to that.

"The Court: It must be understood that the putting into the question a conversation is merely done for the purpose of directing the witness's attention to the matter, and that it is not in, unless the witness remembers the conversation and states it here.

"Mr. Streeter: If your honor will pardon me, my exception to its being read is in the record, and I do not want to be deprived of that.

"The Court: That is all right."

Opinion of the Court.

Many objections are pressed upon our attention which are alleged properly to arise from the exceptions which were taken during the proceedings just quoted, but which we deem either unfounded or not reserved by the exception as taken.

It is settled that a trial court can, in its discretion, permit, upon direct examination, a leading question to be asked, when the counsel conducting the examination is surprised by the statements of the witness. St. Clair v. United States, 154 U. S. 134, 150. It is also clear that where a memorandum or writing is presented to a witness for the purpose of refreshing his memory, it must either have been made by the witness or under his direction, or he must be connected with it in such a way as to make it competent for the purpose for which it is proposed to use it. But here the objection below did not address itself to the fact that the minutes of the testimony taken before the grand jury had not been properly authenticated or that they had not been reduced to writing in the presence of the witness or read over or examined by him at the time. The exception taken, therefore, reserves none of these questions. We shall hence, in considering the matter, assume that in these particulars the use of the testimony taken before the grand jury to refresh memory was not objectionable.

It is elementary that the memory of a witness may be refreshed by calling his attention to a proper writing or memorandum. The rule is thus stated by Greenleaf (1 Greenl. Ev. § 436):

Though a witness can testify only to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory, by the use of a written. instrument, memorandum or entry in a book, and may be compelled to do so if the writing is presented in court. It does not seem to be necessary that the writing should have been 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. So, also, where the witness recollects that he saw the paper while the facts were fresh in his memory, and remembers that he then knew that the particu

Opinion of the Court.

And it is not

lars therein mentioned were correctly stated. necessary that the writing thus used to refresh the memory should itself be admissible in evidence: for if inadmissible in itself as for want of a stamp, it may be still referred to by the witness."

The very essence, however, of the right to thus refresh the memory of the witness is, that the matter used for that purpose be contemporaneous with the occurrences as to which the witness is called upon to testify. Indeed, the rule which allows a witness to refresh his memory by writings or memoranda is founded solely on the reason that the law presupposes that the matters, used for the purpose, were reduced to writing so shortly after the occurrence, when the facts were fresh in the mind of the witness, that he can with safety be allowed to recur to them in order to remove any weakening of memory on his part, which may have supervened from lapse of time.

In Maxwell v. Wilkinson, 113 U. S. 656, 658, speaking through Mr. Justice Gray, the court said:

"Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contemporaneous with the transaction to which they relate. Nicholls v. Webb, 8 Wheat. 326, 337; Ins. Co. v. Weide, 9 Wall. 677, and 14 Wall. 375; Chaffee v. United States, 18 Wall. 516.

'It is well settled that memoranda are inadmissible to refresh the memory of a witness unless reduced to writing at or shortly after the time of the transaction, and while it must have been fresh in his memory. The memorandum must have been presently committed to writing,' Lord Holt in Sandwell v. Sandwell, Comb. 445; S. C. Holt, 295; while the occurrences mentioned in it were recent, and fresh in his recollection,' Lord Ellenborough in Burrough v. Martin, 2 Camp. 112; written contemporaneously with the transaction,' Chief Justice Tindal in Steinkeller v. Newton, 9 Car. & P. 313; or contemporaneously or nearly so with the facts deposed to,' Chief Justice Wilde (afterwards Lord Chancellor Truro) in Whitfield v. Aland, 2 Car. & K. 1015. See, also, Burton v. Plummer, 2 Ad. & El. 341; S. C. 4 Nev. & Man. 315; Wood

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v. Cooper, 1 Car. & K. 645; Morrison v. Chapin, 97 Mass. 72, 77; Spring Garden Ins. Co. v. Evans, 15 Maryland, 54."

In appreciating what length of time after the occurrence may be considered as "contemporaneous," as "shortly after the time of the transaction," or "while fresh in his recollection," courts have differed somewhat, depending of course upon the facts of each particular case.

In Wood v. Cooper, 1 Car. & K. 645, 646, a witness was allowed to look at his examination before commissioners in bankruptcy, signed by him, given within a fortnight of the time of the happening of certain occurrences, and when the facts were fresh in his memory. So in State v. Colwell, 3 R. I. 132, a witness was allowed to refer to a memorandum made a day or two after a previous trial, when an interval of about eight days had elapsed from the time when the occurrences transpired concerning which the witness gave testimony. In Billingslea v. State, 85 Alabama, 323, it was held proper to allow a witness to refresh his recollection by resort to the minutes of statements made to a grand jury within a week after the occurrence about which he was being interrogated. In Spring Garden Mutual Ins. Co. v. Evans, 15 Maryland, 54, it was held that a witness, who, five months after the occurrence of certain facts, and at the request of a party interested, made a statement in writing and swore to it, could not be allowed to testify to his belief in its correctness.

In the case at bar the indictment was found at the December term, 1893, of the District Court, and the testimony used to refresh the memory of the witness was given at that time before the grand jury. The conversations to which the testimony of the witness, given before the grand jury, related transpired on the third of the previous August. The effort, therefore, was to refresh the memory of the witness as to an interview, which had taken place in August, 1893, by referring to his testimony given in December, 1893; in other words, by the use of testimony given by the witness more than four months after the occurrence. We think it clear that testimony given after this lapse of time was not contemporaneous, and that it would not support a reasonable probability that

Opinion of the Court.

the memory of the witness, if impaired at the time of the trial, was not equally so when his testimony on the prior occasion was committed to writing.

In conflict with the well settled rule to which we have just referred, there are some adjudications of the courts of last resort of several States, noted in the margin of this opinion,' holding that there exists an exception to the general rule which restricts the right to refresh memory to contemporaneous memoranda or writing. This exception is said to arise when a party is surprised by the unexpectedly adverse testimony of his own witness, in which case he may, for the purpose of refreshing the memory of the witness, be permitted to ask him as to any prior statements, whether oral or written, without reference to their contemporaneousness. The error of this conclusion, as we shall hereafter demonstrate, originally arose from a misconception of the doctrine laid down in Wright v. Beckett or Melhuish v. Collier, infra, and has been continued by merely following this first departure from correct principles. And this confusion of thought and misunderstanding of those cases seems to have operated upon the mind of the trial court, for it said "it is a thing often done, and when counsel say they are surprised by the way a witness recollects a thing, it is within the discretion of the court to allow counsel to direct the attention of the witness to something which may refresh his recollection." But the right of counsel to refresh the memory of a witness in no way depends on the surprise which may have been created by the testimony of the witness. The right to refresh the memory of a witness, by proper matter, exists independently of surprise. Where a legal instrument for refreshing the memory exists, it may be availed of by the witness himself or may be permitted to be referred to by the court without reference to the course of

1 Campbell v. State, 23 Alabama, 44; Hemingway v. Garth, 51 Alabama, 530; Bullard v. Pearsall, 53 N. Y. 230; Hurley v. State, 46 Ohio St. 320; People v. Kelly, 113 N. Y. 647, 651; Hildreth v. Aldrich, 15 R. I. 163; State v. Sorter, 52 Kansas, 531: Humble v. Shoemaker, 70 Iowa, 223; Hall v. Chicago &c. Railroad, 84 Iowa, 311; George v. Triplett, (N. Dak.) 63 N. W. Rep. 891.