set out in the record, it does not affirmatively appear that the capias was not "issued" at the request of the district attorney himself before he took any part in the action in open court, thereby ratifying the finding of the information, and verifying it with his official oath, prior to the issuance of the bench warrant. The defendant had been arrested for the commission of the crime of which he was convicted, and was confined in jail therefor when the information was filed. His incarceration, therefore, rendered the immediate issuance of a bench warrant unnecessary, and the reasonable probabilities strengthen the conclusion reached, that the capias was not issued by the clerk until June 16, 1904, and then, possibly, upon the præcipe of the district attorney. tions exhibited without leave of court, which | therein, but, no copy of the warrant being are in effect indictments found and returned by the district attorney. Where, however, leave of court is required as a condition precedent to the filing of an information, it would seem that the probable cause must be supported by an oath or affirmation before any warrant can be issued, unless the accused has had or waived a preliminary examination. Ratcliff v. People, 22 Colo. 75, 43 Pac. 553; Holt v. People, 23 Colo. 1, 45 Pac. 374; Noble v. People, 23 Colo. 9, 45 Pac. 376. As a district attorney in this state is not required to secure leave of court before he can file an information charging the commission of a crime, and as he has in effect been subrogated in lieu of the grand jurors in this respect, so that an information filed by him is tantamount to an indictment returned by the grand jury, we think his oath of office, though promissory, is equivalent to the oaths of the grand jurors which are assertory, and each sufficiently supports the probable cause, though not indorsed thereon or specially connected therewith, It follows from these considerations that the petition for a rehearing is denied. MANCHESTER ASSURANCE COMPANY et al., Appts., 1. It is insisted by defendant's counsel that the bill of exceptions fails to disclose the person who subscribed the district attor- OREGON ney's name to the information. We think this question is unimportant, for the district attorney, having assisted in prosecuting the defendant, and being present when he was arraigned and secured an extension of time within which to plead, thereby adopted the signature appended to the written accusation, and ratified the act of the person who subscribed his name thereto. State v. Belding, 43 Or. 95, 71 Pac. 330. The bill of exceptions shows that the district attorney was absent from Multnomah county June 15, 1904, the day the information was filed, at which time it also appears that a bench warrant for the arrest of the defendant was "ordered" to be issued on the motion of a deputy of the district attorney. Based on this condition of the transcript, it is contended by defendant's counsel that if ratification by the district attorney gave validity to the information, which they deny, such confirmation did not occur until after the bench warrant was executed, and hence is was issued without authority. The court's order that a bench warrant be issued is in effect a judgment awarding the relief demanded by the deputy district atThe torney when the information was filed. issuance of the warrant in pursuance of such judgment is a ministerial act performed by the clerk of the court, usually upon the request of the officer entitled thereto. The bill of exceptions shows that on June 16, 1904, the district attorney was in the court when the defendant first appeared บ. RAILROAD & NAVIGATION (........ Or..... After a memorandum book has been introduced in evidence without objec tion no objection will lie to its use as evidence, or to a witness using it as a basis for the facts to which he testifies, on the ground that he did not make the entries. 2. If the memoranda of inspection of engines prepared by the men in charge of that work and filed in the office of the railroad company have been lost, and the facts with regard to the inspection forgotten by them, such facts may be proved by the introduction in evidence of a tran script of such memoranda, entered by the proper clerk in a book kept for tuat purpose, accompanied by his testimony and that of the inspectors, showing that inspections were made and properly entered in the book. 3. If the particular engine which caused a fire near a railroad track is not identified, the jury may, in deter mining the question of the negligence of the railroad company, consider evidence that fires were set out at about the time the loss occurred, by engines belonging to the defendant, which are not claimed to have started the fire in question. (January 9, 1905.) NOTE. For other cases in this series as to admissibility of memoranda as evidence, see Curtis v. Bradley, 28 L. R. A. 143; Hay v. Peterson, 34 L. R. A. 581; State v. Brady, 36 L. R. A. 693. As to admissibility of street-car conductor's trip report as to fares taken, see Callihan v. Washington Water Power Co. 56 L. R. A. 773. A PPEAL by plaintiffs from a judgment of | Fed. 713; Hoskinson v. Central Vermont R. the Circuit Court for Umatilla County in favor of defendant in an action brought to recover damages for the alleged negligent destruction of plaintiffs' property. Reversed. The facts are stated in the opinion. Messrs. John J. Balleray and John McCourt, for appellants: A witness is allowed to refresh his memory respecting a fact, by anything written by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing; but in either case the writing must be produced, and may be inspected by the adverse party, who may, if he chooses, crossexamine the witness upon it, and may read | it to the jury. A witness may testify from such writing, though he retains no recol lection of the particular fact. Co. 66 Vt. 618, 30 Atl. 27; Campbell v. Missouri P. R. Co. 121 Mo. 340, 25 L. R. A. 177, 42 Am. St. Rep. 530, 25 S. W. 936; Koontz v. Oregon R. & Nav. Co. 20 Or. 10, 23 Pac. 820; Henderson v. Philadelphia & R. R. Co. 144 Pa. 461, 16 L. R. A. 299, 27 Am. St. Rep. 652, 22 Atl. 851; Thatcher v. Maine C. R. Co. 85 Me. 502, 27 Atl. 519; Chicago & E. R. Co. v. Zimmerman, 12 Ind. App. 504, 40 N. E. 703; Steele v. Pacific Coast R. Co. 74 Cal. 323, 15 rac. 851; Longabaugh v. Virginia City & Truckee R. Co. 9 Nev. 271; St. Joseph & D. C. R. Co. v. Chase, 11 Kan. 47; Elliott, Railroads, § 1243; Sheldon v. Hudson River R. Co. 14 N. Y. 219, 67 Am. Dec. 155; Webb v. Rome, W. & O. R. Co. 49 N. Y. 424, 10 Am. Rep. 389; Annapolis & A. R. Co. v. Gantt, 39 Md. 124; Mills v. Louisville & N. R. Co. 25 Ky. L. Rep. 488, 76 S. W. 29; St. Louis, I. M. & S. R. Co. v. Lawrence (Ind. Terr.) 76 S. W. 254; Illinois C. 1 Bellinger & C. Anno. Codes & Statutes, R. Co. v. Barrett, 23 Ky. L. Rep. 1755, 66 S. § 848, p. 407. A witness cannot be allowed to testify or refresh his memory from something not written by himself, or under his direction; nor can a private writing of a witness, not written by himself, or under his direction, be read in evidence where the witness has no recollection of the fact. Merrill v. Ithaca & O. R. Co. 16 Wend. 596, 30 Am. Dec. 130; 8 Enc. Pl. & Pr. pp. 138, 139, 142, 143; Peck v. Valentine, 94 N. Y. 571; Watson v. Miller, 82 Tex. 279, 17 S. W. 1053; State v. Magers, 35 Or. 537, 57 Pac. 197, 36 Or. 44, 58 Pac. 892; Susewind v. Lever, 37 Or. 367, 61 Pac. 644; Maxwell v. Wilkinson (Parsons v. Wilkinson), 113 U. S. 656, 28 L. ed. 1037, 5 Sup. Ct. Rep. 691; Marcly v. Shults, 29 N. Y. 350; Caldwell v. Bowen, 80 Mich. 387, 45 N. W. 185; Ilematite Min. Co. v. East Tennessee, V. & G. R. Co. 92 Ga. 268, 18 S. E. 25; Rapalje, Witnesses, §§ 280-284; People v. McLaughlin, 13 Misc. 287, 35 N. Y. Supp. 77; People v. Munroe, 100 Cal. 664, 24 L. R. A. 33, 38 Am. St. Rep. 323, 35 Pac. 326; Fritz v. Burriss, 41 S. C. 149, 19 S. E. 305; Chicago & A. R. Co. v. Adler, 56 Ill. 348. Evidence of other fires, or scattering of fire, sparks, or cinders of large size, or in large quantities, by engines of a railroad company, other than an engine causing a fire, the subject of litigation, at about the time and place of the fire complained of, is admissible. Northern P. R. Co. v. Lewis, 2 C. C. A. 446, 7 U. S. App. 254, 51 Fed. 658; Gulf, C. & S. F. R. Co. v. Johnson, 4 C. C. A. 447, 10 U. S. App. 629, 54 Fed. 474; Grand Trunk R. Co. v. Richardson, 91 U. S. 464, 23 L. ed. 356; Chicago, St. P. M. & O. R. Co. v. Gilbert, 3 C. C. A. 264, 10 U. S. App. 375, 52 W. 9; Lesser Cotton Co. v. St. Louis, I. M. & S. R. Co. 52 C. C. A. 99, 114 Fed. 135. Messrs. W. W. Cotton, Carter & Raley, and Henry F. Conner, for respondent: When the witness Whitby saw the book, examined the entries, knew them to be correct, and signed them shortly after the fact of the inspection, the book became an original, and was therefore admissible. Merrill v. Ithaca & O. R. Co. 16 Wend. 588, 30 Am. Dec. 130; Abbott, Trial Ev. 2d ed. pp. 395, 396; Greenl. Ev. 14th ed. § 437; Stephen's Digest of Ev. Chase's ed. § 136, note 2; Hayden v. Hoxie, 27 Ill. App. 533; Flynn v. Gardner, 3 Ill. App. 253; Com. v. Ford, 130 Mass. 64, 39 Am. Rep. 426; Filkins v. Baker, 6 Lans. 516; Krom v. Levy, 1 Hun, 171; Gould v. Conway, 59 Barb. 355; Green v. Caulk, 16 Md. 556; Acklen v. Hickman, 63 Ala. 494, 35 Am. Rep. 54; Burton v. Plummer, 2 Ad. & El. 341; Beddo v. Smith, Minor (Ala.) 397; Queen v. Langton, L. R. 2 Q. B. Div. 296; Wood v. Cooper, 1 Car. & K. 645. An instruction which directs the attention of the jury to particular items of testimony is objectionable. Church v. Melville, 17 Or. 413, 21 Pac. 387; Crossen v. Oliver, 41 Or. 505, 69 Pac. 308; Blashfield, Instructions to Juries, §§ 105111; State v. Huffman, 16 Or. 15, 16 Pac. 640; State v. Bowker, 26 Or. 309, 38 Pac. 124. Wolverton, J., delivered the opinion of the court: The defendant, to show that it had observed proper care and precaution in keeping its engines and the smokestacks thereof in suitable repair, to prevent the escape of sparks and fire, and the consequent injury to the property of others along the line of its railroad, called one Whitby as a witness, who testified that his occupation was that of a boilermaker; that he was and had been in the employ of the defendant; that he inspected locomotives at times, but that he could not testify from memory regarding any inspection of engine No. 400,-the one supposed to have done the damage. A book was then placed in his hands, and his attention called to a page purporting to show the examination, condition, and repair of the smokestack and ash pan of such engine at La Grande from time to time during the month of December, 1902. This book is ruled in columns headed, respectively: "Date of examination;" "Condition of smokestack and Netting;" "Repaired, State Nature of Repairs;" "Condition of Ash Pan and Netting;" "Repairs, State Nature of Repairs;" "Signature of Inspector;" and "Occupation." Within the column headed "Condition of Smokestack and Netting" is written the word "Good," opposite the figure "2" in the column headed "Date of Examina tion." The word "Good" is also written under the heading "Condition of Ash Pan and Netting," the name of C. W. Ellsworth under the heading "Signature of Inspector," and the word "Inspector" under that of "Occupation." The same thing appears as of dates December 3d and 5th. So of the 7th, 11th, 13th, 15th, 23d, 30th, and 31st, except that the name of J. A. Whitby appears under "Signature of Inspector," and "Boilermaker" under "Occupation." The witness then further testified that the signatures on the page were those of the witness, except the first three, and that the word "Boilermaker" was written by him, but that the word "Good," wherever appearing, was written by a clerk in the division foreman's office; that it was entered from reports that the witness turned in in writing; that when he signed the page he knew the entries as indicated by the clerk opposite his signature to be correct. On cross-examination the inquiry proceeded as follows: Q. Do you know those entries there to correctly report the examinations made on those dates? A. They do. Q. What do you recall about the inspections except from this memoranda? A. When the book is given to me to sign. we have the memoranda right there, and look them over when we sign the book, to make sure it is right when we sign it. Q. You make those memoranda on what,a book? A. Yes, sir; a shopbook. A. I guess it is. Q. It is not here, is it? Q. The clerk makes this, and you sign them? A. He keeps them, and copies them off of these reports. Q. Who told you he copied it off? It is further shown that this book is signed by the inspector from the 1st to the 5th of every month following. The page alluded to had previously been offered and received in evidence without objection while Ellsworth, the inspector signing as of dates December 2d, 3d, and 5th, was on the stand, and likewise the entire book had been offered and admitted, which shows the inspection of many other engines during the same month; but at this time there was an objection interposed both to the memorandum, and to the witness's using it, because it appears from the witness's statement that he did not make the entries, nor were they made under his supervision. Ellsworth, while a witness, testified that he made his reports sometimes on stubs, requisition stub books, anything to get them on,-during the month, which he sent into the office, but that he had them before him when he signed up the exhibit. The objection to the memorandum itself is manifestly without merit, as at this time it had already been admitted in evidence without objection; and, as to the objection to the witness's using it, we are of the opinion that it is also without merit, for the reason that the exhibit was already a matter in evidence, and, being so, there existed no good reason why the witness should not have been examined concerning it, nor why he should not have made such statements touching the real facts as he was enabled to with its aid. However, as this case must go back for a new trial on another point, we will state briefly the result of our investigation as to the admissibility and use of this memorandum for any purpose in the case. Under the testimony of Whitby, the result of the inspections were first noted in a shopbook, and the memorandum in question was subsequently made up from these notations by the division foreman's clerk, and verified by the witness, who appended his signature in testimony thereof. The original entries are those made in the shopbook. Memoranda made up therefrom are but secondary evidence, and are not per se competent evidence of what was done; nor are they competent for use by the witness under any conditions, unless they so refresh his memory Q. The book is still there, which you made that he would thereby be enabled to testify the original entries in? independently of them, or except the origin Krom v. Levy, 1 Hun, 171; People v. McLaughlin, 150 N. Y. 365, 44 N. E. 1017; Acklen v. Hickman, 63 Ala. 494, 35 Am. Rep. 54; Hayden v. Hoxie, 27 Ill. App. 533. But to enable a witness to testify from the memorandum, under the conditions stated, it must be the original, unless it be lost, or its absence excused. Davis v. Field, 56 Vt. 426; Caldwell v. Bowen, 80 Mich. 382, 45 N. W. 185; Harrison v. Middleton, 11 Gratt. 527, 547. If the original be produced, and it appears that it was made in the usual course of business, it may be introduced and received in evidence along with the testimony of the witness who made it, and is enabled to say that the facts stated in it were correctly minuted at the time; but this is because he has forgotten, so that he is unable to speak concerning such facts without the aid of the memorandum. Abbott, Trial Ev. 2d ed. 395, 396; National Ulster County Bank v. Madden, 114 N. Y. 280, 284, 11 Am. St. Rep. 633, 21 N. E. 408; Peck v. Valentine, 94 N. Y. 569, 571; Krom v. Levy, 1 Hun, 171; Merrill v. Ithaca & 0. R. Co. 16 Wend. 586, 30 Am. Dec. 130; Moots v. State, 21 Ohio St. 653; Burton v. Plummer, 2 Ad. & El. 341; Doe er dem. Church v. Perkins, 3 T. R. 749; Tanner v. als be lost, or their absence legally excused. | v. Valentine, 94 N. Y. 569, 571; National State v. Magers, 36 Or. 38, 42, 58 Pac. 892; Ulster County Bank v. Madden, 114 N. Y. Haines v. Cadwell, 40 Or. 229, 66 Pac. 910. | 280, 284, 11 Am. St. Rep. 633, 21 N. E. 408; By the old law a witness might have refreshed his memory from the memorandum or writing made by himself or under his direction, if made at or near the time, and while the fact or facts of which it speaks were fresh in his mind; and so he might have refreshed his memory from a memorandum or record made by another, if read by or to him when the matter was fresh in his memory, so that he was enabled to depose that the writing correctly represented his recollection at the time. 1 Greenl. Ev. 16th ed. § 439b, Abbott, Trial Brief, 2d ed. 395; Stephen's Digest of Ev. art. 136; 2 Phillipps, Ev. *916; Com. v. Ford, 130 Mass. 64, | 39 Am. Rep. 426. The statute has changed this rule, so that now a memorandum must have been made by the witness himself, or under his direction. 1 Bellinger & C. Anno. Codes & Statutes, § 848. This statute, in the light of the law as it formerly stood, was probably designed to apply more particularly, if not exclusively, to those memoranda where, after consultation by the witness, his memory is not so refreshed that he can speak from his own recollection independently of the writing, because, if wholly refreshed, so that he can speak without it, it is not always necessary that he produce it in court; but, if reference is made to it while testifying, | Taylor, referred to by Mr. Justice Buller in it is proper for the opposite counsel to cross the latter case. Memoranda made in the examine concerning it, to determine whether usual course of business, when made up he is using it as evidence aside from his from reports of subordinates, are admissible, recollection. Friendly v. Lee, 20 Or. 202, under the rule, when accompanied by the 25 Pac. 396; State v. Magers, 36 Or. 38, 42, testimony of such subordinates that they 58 Pac. 892; Haines v. Cadwell, 40 Or. 229, represent truly what had transpired, com66 Pac. 910; Hill v. State, 17 Wis. 675, 86 bined with that of the person minuting the Am. Dec. 736; Folsom v. Apple River Log- transactions that they were also truly noted; Driving Co. 41 Wis. 602. The theory of the but not so with merely private memoranda, law deducible from the books seems to be not made in pursuance of any duty owed by that a memorandum is but secondary evi- the person making them. New York v. dence of the facts of which it speaks, the Second Ave. R. Co. 102 N. Y. 581, 55 Am. primary evidence being the knowledge of the Rep. 839, 7 N. E. 905. To the same purpose, witness, if he is able to testify truly as to see Harwood v. Mulry, 8 Gray, 250; Miller the facts mentioned, or if he is enabled to v. Shay, 145 Mass. 162, 1 Am. St. Rep. 449. testify from present recollection after hav- 16 N. E. 468. So the court in the case of ing had his mind quickened by the memoran- The Norma, 15 C. C. A. 553, 35 U. S. App. dum, that is to say, of his own knowledge, 421, 68 Fed. 509, where entries were made independent of the memorandum; and it is in the usual way from memoranda furnished only when this primary proof is not avail- by foremen of the time of their workmen, the able that resort may be had to the secondary, memoranda being lost, held that the proofs so that it becomes necessary to show that the were sufficient as to certain items pertaining witness cannot speak from knowledge of the to the yacht; the foremen having been called facts, or from present recollection thereof, in conjunction with the bookkeeper who after having consulted the memorandum, be- made up the account. Citing New York v. fore it can become of evidentiary value. Second Ave. R. Co. 102 N. Y. 581, 55 Am. either as auxiliary, or an aid to the mind Rep. 839, 7 N. E. 905. Another phase of the in speaking from it. Bradner, Ev. 2d ed. question was presented in Peck v. Valentine, 472; Abbott, Trial Ev. 2d ed. 395, 396; 94 N. Y. 569, 571, where the plaintiff, for Friendly v. Lee, 20 Or. 202, 25 Pac. 396; the purpose of proving that defendant had Howard v. McDonough, 77 N. Y. 592; Peck' not entered in his cashbook all the moneys received by him for the sales of lumber, | warehouse. This was about 6 o'clock in the called one Leggett, who testified that he morning. Plaintiffs also introduced other kept on a loose piece of paper an account of evidence tending to show that other trains moneys received by defendant, which he gave were seen passing there on previous mornto the plaintiff. This the plaintiff supple- ings, and shortly after the fire, and that the mented by his own testimony that he re-engines were frequently seen to throw out ceived the memorandum from Leggett and sparks sufficient at times to set fire to grass had lost it, but that he had correctly copied along the way; that the engine hauling the the figures into a memorandum book, and same passenger train was at other times that the entries had not been altered; and it seen to emit sparks, some of them of large was held error to receive the book in evi- size; that the passenger train in question dence, because the memorandum of Leggett was No. 6, but it was not known what engine was not produced, and he was not called upon was attached to it. Under this record, plainto verify its contents. Of a kindred nature tiffs requested the following instruction: is Hematite Min. Co. v. East Tennessee, V. & "You are the judges of all the facts in the G. R. Co. 92 Ga. 268, 18 S. E. 24. In the case, and should the defendant offer proof light of these rules and legal principles, we to establish the fact that the engines and the are of the opinion that the original mem- particular engine claimed to have caused the oranda of Ellsworth and Whitby, showing fire was equipped with the best modern apthe dates of their inspections, should have pliances generally used, and that it was in been produced, if they were unable to testify good repair, and operated by careful and to the facts thereby recorded without and in- skilled mechanics, who were careful at the dependently of them. If produced, however, time, you will nevertheless take all the eviit would have been competent to submit dence into consideration, and determine from them to the jury, as well as for the witnesses the whole evidence whether this is true or to speak from them. If, on the other hand, not; and, in doing this, you will take into they have been lost, and the fact is satis- consideration any evidence tending to show factorily shown, then the fact of the inspec- that other fires were caused by engines of the tion could be proved by calling the inspect- defendant at other times shortly prior or ors in conjunction with the clerk in the di- subsequent to the fire alleged in the comvision foreman's office who made up the plaint, or whether engines of the defendant, present book in the usual course of business, or this particular engine, scattered coals or and the book would then become competent sparks or cinders at the time of this parevidence to go to the jury. Neither the in- ticular fire, or shortly prior or subsequent spector nor the clerk being able to testify as thereto, in determining whether the defendto the fact of the inspection and the result, ant has been guilty of negligence or not." with the attendant dates, from present recol- This the court modified so as to confine its lection, the necessity for resort to the second- application to the particular engine which ary evidence would thus be shown; other- it is claimed caused the fire, and its action wise the book could not be introduced. The in that regard is assigned as error. The parbook is not a memorandum made by the in- ticular engine that did the damage not havspectors or under their direction, but it is ing been identified by plaintiffs' pleadings or a reproduction of the original memoranda proof, plaintiffs were entitled to the instrucmade by them. It is a memorandum made tion requested. 2 Thomp. Neg. 2371-2374; by the clerk, however, and, when his testi- | Koontz v. Oregon R. & Nav. Co. 20 Or. 3, mony concerning it is conjoined with that 23 Pac. 820. The one given had the effect of the inspectors, showing that inspections of saying to the jury at the last that, alwere made, and that their memoranda have though evidence had been admitted tending been lost, or that their production is ex- to show that other engines than the one cusable, and they are able at the same time claimed by the defendant to have set the fire to verify this as being a correct transcript had shortly previous, and subsequent theretherefrom, there exists no good reason why to, in passing in proximity to the place, the book should not go to the jury. scattered and communicated fire, they need not consider such evidence, but only such of the kind as related to the particular engine in question, in arriving at their verdict in the case. According to the bill of exceptions, the plaintiffs introduced evidence tending to prove that the fire occurred on the 3d day of December, 1902; that it started in a warehouse close to the railroad; that a passenger train passed, and that about fifteen minutes afterwards the fire was discovered; that when first seen it was a "little fire,-looked like a headlight of an engine at a short distance;" and that it started on the roof of a This was error, for which the judgment of the Circuit Court will be reversed, and the cause remanded for such further proceedings as may seem proper. Rehearing denied. |