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tions exhibited without leave of court, which therein, but, no copy of the warrant being are in effect indictments found and returned set out in the record, it does not affirmaby the district attorney. Where, however, tively appear that the capias was not "isleave of court is required as a condition sued” at the request of the district attorney precedent to the filing of an information, it himself before he took any part in the acwould seem that the probable cause must be tion in open court, thereby ratifying the supported by an oath or affirmation before finding of the information, and verifying it any warrant can be issued, unless the ac. with his official oath, prior to the issuance cused has had or waived a preliminary ex- of the bench warrant. The defendant had amination. Ratcliff v. People, 22 Colo. 75, been arrested for the commission of the 43 Pac. 553; Holt v. People, 23 Colo. 1, 45 crime of which he was convicted, and was Pac. 374; Noble v. People, 23 Colo. 9, 45 confined in jail therefor when the informaPac. 376. As a district attorney in this tion was filed. His incarceration, therestate is not required to secure leave of court fore, rendered the immediate issuance of a before he can file an information charging bench warrant unnecessary, and the reasonthe commission of a crime, and as he has able probabilities strengthen the conclusion in effect been subrogated in lieu of the reached, that the capias was not issued by grand jurors in this respect, so that an in the clerk until June 16, 1904, and then, formation filed by him is tantamount to an possibly, upon the præcipe of the district indictment returned by the grand jury, we attorney. think his oath of office, though promissory, It follows from these considerations that is equivalent to the oaths of the grand ju- the petition for a rehearing is denied. rors which are assertory, and each sulficiently supports the probable cause, though not indorsed thereon or specially connected

MANCHESTER ASSURANCE COMPANY therewith, It is insisted by defendant's counsel that

et al., Appts., the bill of exceptions fails to disclose the person who subscribed the district attor- | OREGON RAILROAD & NAVIGATION ney's name to the information. We think

COMPANY, Respt. this question is unimportant, for the dis

(........Or.........) trict attorney, having assisted in prosecuting the defendant, and being present when 1. After a memorandum book has been he was arraigned and secured an extension

introduced in evidence without objec

tion no objection will lie to its use as eviof time within which to plead, thereby

dence, or to a witness using it as a basis adopted the signature appended to the

for the facts to which he testifies, on the written accusation, and ratified the act ground that he did not make the entries. of the person who subscribed his name there. 2. If the memoranda of inspection of to. State v. Belding, 43 Or. 95, 71 Pac. 330. engines prepared

by the

charge of that work and filed in the ofThe bill of exceptions shows that the dis

fice of the railroad company have been lost, trict attorney was absent from Multnomah

and the facts with regard to the inspection county June 15, 1904, the day the informa

forgotten by them, such facts may be proved tion was filed, at which time it also appears by the introduction in evidence of a tran that a bench warrant for the arrest of the script of such memoranda, entered by the defendant was "ordered” to be issued on proper clerk in a book kept for that purpose,

accompanied by his testimony and that of the motion of a deputy of the district attor

the inspectors, showing that inspections were ney. Based on this condition of the tran

made and properly entered in the book. script, it is contended by defendant's coun

particular engine which sel that if ratification by the district attor caused a fire near a railroad track ney gave validity to the information, which is not identified, the jury may, in deter they deny, such confirmation did not occur mining the question of the negligence of the until after the bench warrant was executed,

men

in

railroad company, consider evidence that fires

were set out at about the time the loss ocand hence is was issued without authority.

curred, by engines belonging to the defendThe court's order that a bench warrant be ant, which are not claimed to have started issued is in effect a judgment awarding the the fire in question. relief demanded by the deputy district at

(January 9, 1905.) torney when the information was filed. The issuance of the warrant in pursuance of NOTE, -For other cases in this series as to adsuch judgment is a ministerial act permissibility of memoranda as evidence, see Curformed by the clerk of the court, usually tis v. Bradley, 28 L. R. A. 143 ; Hay v. Peterupon the request of the officer entitled there son, 34 L. R. A. 581 ; State v. Brady, 36 L. R. A.

693. to. The bill of exceptions shows that on

As to admissibility of street-car conductor's June 16, 1904, the district attorney was in trip report as to fares taken, see Callihan v. the court when the defendant first appeared I Washington Water Power Co. 56 L. R. A. 773.

3. If

the

an

A .

the Circuit Court for Umatilla County Co. 66 Vt. 618, 30 Atl. 27; Campbell v. in favor of defendant in an action brought to Missouri P. R. Co. 121 Mo. 340, 25 L. R. A. recover damages for the alleged negligent de 177, 42 Am. St. Rep. 530, 25 S. W. 936; struction of plaintiffs' property. Reversed. Koontz v. Oregon R. & Nav. Co. 20 Or. 10, 23

The facts are stated in the opinion. Pac. 820; Henderson v. Philadelphia & R. R.

Messrs. John J. Balleray and John Co. 144 Pa. 461, 16 L. R. A. 299, 27 Am. St. McCourt, for appellants:

Rep. 652, 22 Atl. 851; Thatcher v. Alaine C. A witness is allowed to refresh his memory R. Co. 85 Me. 502, 27 Atl. 519; Chicago d respecting a fact, by anything written by E. R. Co. v. Zimmerman, 12 Ind. App. 504, himself or under his direction at the time 40 N. E. 703; Steele v. Pacific Coast R. Co. when the fact occurred, or immediately | 74 Cal. 323, 15 rac. 851; Longabaugh v. thereafter, or at any other time when the Virginia City & Truckee R. Co. 9 Nev. 271; fact was fresh in his memory, and he knew St. Joseph & D. C. R. Co. v. Chase, 11 Kan. that the same was correctly stated in the 47; Elliott, Railroads, $ 1243; Sheldon v. writing; but in either case the writing must | Hudson River R. Co. 14 N. Y. 219, 67 Am. be produced, and may be inspected by the Dec. 155; Webb v. Rome, W. &0. R. Co. 49 adverse party, who may, if he chooses, cross- N. Y. 424, 10 Am. Rep. 389; Annapolis & A. examine the witness upon it, and may reaul R. Co. v. Gantt, 39 Md. 124; Mills v. Louisit to the jury. A witness may testiły from ville & N. R. Co. 25 Ky. L. Rep. 488, 76 S. such writing, though he retains no l'ecol. W. 29; St. Louis, I. M. & 8. R. Co. v. Lawlection of the particular fact.

rence (Ind. Terr.) 76 S. W. 254; Nlinois C. 1 Bellinger & C. Anno. Codes & Statutes, R. Co. v. Barrett, 23 Ky. L. Rep. 1755, 66 S. § 848, p. 407.

W. 9; Lesser Cotton Co. v. St. Louis, I. M. A witness cannot be allowed to testify or & S. R. Co. 52 C. C. A. 99, 114 Fed. 135. refresh his memory from something not writ- Messrs. W. W. Cotton, Carter & ten by himself, or under his direction; nor Raley, and Henry F. Conner, for recan a private writing of a witness, not writ- spondent: ten by mself, or under his direction, be When the witness Whitby saw the book, read in evidence where the witness has no examined the entries, knew them to be correcollection of the fact.

rect, and signed them shortly after the fact Merrill v. Ithaca a 0. R. Co. 16 Wend. of the inspection, the book became 596, 30 Am. Dec. 130; 8 Enc. Pl. & Pr. pp. original, and was therefore admissible. 138, 139, 142, 143; Peck v. Valentine, 94 N. Merrill v. Ithaca & O. R. Co. 16 Wend. Y. 571; Watson v. Miller, 82 Tex. 279, 17 S. 588, 30 Am. Dec. 130; Abbott, Trial Ev. 2d W. 1053; State v. Magers, 35 Or. 537, 57 ed. pp. 395, 396; Greenl. Ev. 14th ed. $ 437; Pac. 197, 36 Or. 44, 58 Pac. 892; Susewind Stephen's Digest of Ev. Chase's ed. $ 136, v. Lever, 37 Or. 367, 61 Pac. 644; Maxwell note 2; Hayden v. Hozie, 27 111. App. 533 ; v. Wilkinson (Parsons v. Wilkinson), 113 U. Flynn v. Gardner, 3 111. App. 253; Com. v. S. 656, 28 L. ed. 1037, 5 Sup. Ct. Rep. 691; Ford, 130 Mass. 64, 39 Am. Rep. 426; Marcly v. Shults, 29 N. Y. 350; Caldwell v. Filkins v. Baker, 6 Lans. 516; Krom v. Bowen, 80 Mich. 387, 45 N. W. 185; Ile- Levy, 1 Hun, 171; Gould v. Conway, 59 Barb. matite Alin. Co. v. East Tennessee, V. & G. 355; Green v. Caulk, 16 Md. 556; Acklen v. R. Co. 92 Ga. 268, 18 S. E. 25; Rapalje, Hickman, 63 Ala. 494, 35 Am. Rep. 54; Witnesses, $$ 280-284; People v. McLaugh- Burton v. Plummer, 2 Ad. & El. 341; Beddo lin, 13 Misc. 287, 35 N. Y. Supp. 77; People v. Smith, Minor (Ala.) 397; Queen v. Lang. v. Munroe, 100 Cal. 664, 24 L. R. A. 33, 38 ton, L. R. 2 Q. B. Div. 296; Wood v. Cooper, Am. St. Rep. 323, 35 Pac. 326; Fritz v. Bur- 1 Car. & K. 645. riss, 41 S. C. 149, 19 S. E. 305; Chicago d A. An instruction which directs the attention R. Co. v. Adler, 56 Ill. 348.

of the jury to particular items of testimony Evidence of other fires, or scattering of is objectionable. fire, sparks, or cinders of large size, or in Church v. Melville, 17 Or. 413, 21 Pac. 387; large quantities, by engines of a railroad Crossen v. Oliver, 41 Or. 505, 69 Pac. 308; company, other than an engine causing a Blash field, Instructions to Juries, $$ 105– fire, the subject of litigation, at about the 111; State v. Huffman, 16 Or. 15, 16 Pac. time and place of the fire complained of, is 640; State v. Bowker, 26 Or. 309, 38 Pac. 124. admissible.

Northern P. R. Co. v. Lewis, 2 C. C. A. Wolverton, J., delivered the opinion of 446, 7 U. S. App. 254, 51 Fed. 658; Gulf, C. the court: & S. F. R. Co. v. Johnson, 4 C. C. A. 447, 10 The defendant, to show that it had obU. S. App. 629, 54 Fed. 474; Grand Trunk served proper care and precaution in keeping R. Co. v. Richardson, 91 U. S. 464, 23 L. ed. its engines and the smokestacks thereof in 356; Chicago, St. P. M. &0. R. Co. v. Gil. suitable repair, to prevent the escape of bert, 3 C. C. A. 264, 10 U. S. App. 375, 52 sparks and fire, and the consequent injury

to the property of others along the line of A. I guess it is. its railroad, called one Whitby as a witness, Q. It is not here, is it? who testified that his occupation was that 1. No, sir. of a boilermaker; that he was and had been Q. The clerk makes this, and you sign in the employ of the defendant; that he in- them? spected locomotives at times, but that he A. He keeps them, and copies them off of could not testify from memory regarding any these reports. inspection of engine No. 400,—the one sup Q. Who told you he copied it off ? posed to have done the damage. A book was A. I frequently see him. then placed in his hands, and his attention called to a page purporting to show the

It is further shown that this book is examination, condition, and repair of the signed by the inspector from the 1st to the smokestack and ash pan of such engine at La 5th of every month following. The page alGrande from time to time during the month luded to had previously been offered and reof December, 1902. This book is ruled in ceived in evidence without objection while columns headed, respectively: “Date of

Ellsworth, the inspector signing as of dates

December 2d, 3d, and 5th, was on the stand, examination;" “Condition of smokestack and Netting;” “Repaired, State Nature of and likewise the entire book had been of Repairs;” “Condition of Ash Pan and fered and admitted, which shows the inNetting;” “Repairs, State Nature of Re- spection of many other engines during the pairs;" "Signature of Inspector;” and “Oc. same month; but at this time there was an cupation.” Within the column headed “Con objection interposed both to the memorandition of Smokestack and Netting” is writ. dum, and to the witness's using it, because it ten the word “Good,” opposite the figure "2" appears from the witness's statement that in the column headed “Date of Examina

he did not make the entries, nor were they tion.” The word “Good” is also written made under his supervision. Ellsworth, under the heading “Condition of Ash Pan while a witness, testified that he made his and Netting,” the name of C. W. Ellsworth reports sometimes on stubs, requisition stub under the heading “Signature of Inspector," books, -anything to get them on,-during and the word “Inspector” under that of “Oc. the month, which he sent into the office, but cupation.” The same thing appears as of

that he had them before him when he signed dates December 3d and 5th. So of the 7th, up the exhibit. The objection to the memo11th, 13th, 15th, 23d, 30th, and 31st, except

randum itself is manifestly without merit, that the name of J. A. Whitby appears under as at this time it had already been admitted “Signature of Inspector,” and “Boilermaker" in evidence without objection; and, as to the under "Occupation.”

The witness then objection to the witness's using it, we are of further testified that the signatures on the the opinion that it is also without merit, for page were those of the witness, except the the reason that the exhibit was already a first three, and that the word “Boilermaker" matter in evidence, and, being so, there existwas written by him, but that the word ed no good reason why the witness should “Good,” wherever appearing, was written by not have been examined concerning it, nor a clerk in the division foreman's office; that why he should not have made such stateit was entered from reports that the witness ments touching the real facts as he was turned in in writing; that when he signed enabled to with its aid. However, as this the page he knew the entries as indicated by

case must go back for a new trial on another the clerk opposite his signature to be correct. point, we will state briefly the result of our

investigation as to the admissibility and use On cross-examination the inquiry proceed of this memorandum for any purpose in the ed as follows:

Q. Do you know those entries there to cor Under the testimony of Whitby, the result rectly report the examinations made on those of the inspections were first noted in a shopdates?

book, and the memorandum in question was A. They do.

subsequently made up from these notations Q. What do you recall about the in- by the division foreman's clerk, and verified spections except from this memoranda ? by the witness, who appended his signature

A. When the book is given to me to sign. in testimony thereof. The original entries we have the memoranda right there, and are those made in the shopbook. Memoranda look them over when we sign the book, to made up therefrom are but secondary evimake sure it is right when we sign it. dence, and are not per se competent evi.

Q. You make those memoranda on what,—dence of what was done; nor are they compea book ?

tent for use by the witness under any conA. Yes, sir; a shopbook.

ditions, 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

case.

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 re- l'rom v. Levy, 1 Hun, 171; People v. Acfreshed his memory from the memorandum Laughlin, 1.50 N. Y. 365, 44 N. E. 1017; or writing made by himself or under his Acklen v. Hickman, 63 Ala. 494, 35 Am. direction, if made at or near the time, and Rep. 54; Hayden v. Hoxie, 27 Ill. App. 533. while the fact or facts of which it speaks But to enable a witness to testify from the were fresh in his mind; and so he miglit memorandum, under the conditions stated, have refreshed his memory from a memoran. it must be the original, unless it be lost, or dum or record made by another, if read by its absence excused. Davis v. Field, 56 or to him when the matter was fresh in his Vt. 426; Caldwell V. Bowen, 80 Mich. memory, so that he was enabled to depose 382, 45 N. W. 185; Harrison v. Middlethat the writing correctly represented his ton, 11 Gratt. 527, 547. If the original be recollection at the time. 1 Greenl. Ev. 16th produced, and it appears that it was made ed. § 4396, Abbott, Trial Brief, 2d ed. 395; in the usual course of business, it may be Stephen's Digest of Ev. art. 136; 2 Phil. introduced and received in evidence along lipps, Ev. *916; Com. v. Ford, 130 Mass. 64, with the testimony of the witness who made 39 Am. Rep. 426. The statute has changed it, and is enabled to say that the facts stated this rule, so that now a memorandum must in it were correctly minuted at the time; have been made by the witness himself, or but this is because he has forgotten, so that under his direction. 1 Bellinger & C. Anno. he is unable to speak concerning such facts Codes & Statutes, $ 848. This statute, in without the aid of the memorandum. Abthe light of the law as it formerly stood, was bott, Trial Ev. 2d ed. 395, 396; National probably designed to apply more particular. Ulster County Bank v. Madden, 114 N. Y. ly, if not exclusively, to those memoranda 280, 284, 11 Am. St. Rep. 633, 21 N. E. 408; where, after consultation by the witness, his Peck v. Valentine, 94 N. Y. 569, 571; Krom memory is not so refreshed that he can speak v. Levy, 1 Hun, 171; Merrill v. Ithaca & 0. from his own recollection independently of R. Co. 16 Wend. 586, 30 Am. Dec. 130; the writing, because, if wholly refreshed, so Moots v. State, 21 Ohio St. 653; Burton v. that he can speak without it, it is not always Plummer, 2 Ad. & El. 341; Doe ex dem. necessary that he produce it in court; but, Church v. Perkins, 3 T. R. 749; Tanner v. 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 Harivood v. Mulry, 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 to say, of his own knowledge, | 421, Fee 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; 994 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 Le gett 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 tiff's 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 there. therefrom, 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 According to the bill of exceptions, the not consider such evidence, but only such of plaintiffs introduced evidence tending to the kind as related to the particular engine prove that the fire occurred on the 3d day of in question, in arriving at their verdict in December, 1902; that it started in a ware- the case. house close to the railroad; that a passenger This was error, for which the judgment of train passed, and that about fifteen minutes the Circuit Court will be reversed, and the afterwards the fire was discovered; that cause remanded for such further proceedings when first seen it was a "little fire,-looked as may seem proper. like a headlight of an engine at a short distance;" and that it started on the roof of a Rehearing denied.

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