People v. Hobson

119 N.W.2d 581, 369 Mich. 189

• Court: Michigan Supreme Court
• Decided: February 6, 1963
• Docket: Calendar 52, Docket 49,037
• Status: Published

Opinions

Dethmers, J.

Defendants appeal from convictions of conspiracy to set up a lottery, or the so-called numbers or policy racket, and sentences imposed therefor.

The only trial error claimed is the admission into evidence of typewritten memoranda setting forth detailed observations of defendants’ activities, prepared at the end of each day by the police officers who then were maintaining a surveillance of defendants and their activities for a period of approximately 2 months, after those officers had testified that they could not, at time of trial, recall the details of their observations from day to day, that the memoranda would not refresh their recollections, but that the memoranda had been prepared accurately by them each day from notes they had made at the scene of the observations and from their memories of what had occurred that day, although the memoranda were not exact copies of such notes, which since had been destroyed.

The people contend that the memoranda were admissible to prove the conspiracy under the rule of evidence commonly referred to as “past recollection recorded”. To this defendants say in their brief:

“Let us examine this theory or rule of ‘past recollection recorded’ and see if it really fits this case. A record of past recollection has been admitted as a general rule when that record qualifies in certain particulars, to-wit: (1) When the record is the original, unaltered paper, (2) preferably prepared by the witness himself at some prior, and rather remote, date (3) containing facts shown to be true when recorded (4) made contemporaneously with or near the time of the transaction recorded, and (5) containing facts which remain unrecalled by the witness after attempting to refresh his memory from the document or record (20 Am Jur, Evidence, § 946, p 798).”

Defendants then go on tó say that the memoranda seem to qualify under the above criteria, but suggest that they are, nonetheless, inadmissible because of the motives of the police officers, who were not disinterested persons, but who prepared the memoranda for the express purpose of obtaining evidence to secure convictions. In Germiquet v. Hubbard, 327 Mich 225, 232, 233, this Court said:

“Under the prior holdings of this Court it may be regarded as settled law that under proper circumstances a record of a past recollection, authenticated by proof, is competent. Baumgarten v. Tasco, 312 Mich 161, must be regarded as so holding. In Koehler v. Abey, 168 Mich 113, the Court quoted with approval from the headnote to the opinion of the supreme court of South Carolina in State v. Rawls, 2 N & McC (SC) 331, as follows:

“ ‘Where a person, who is a witness to a particular transaction, has made a memorandum, at the time, of certain facts, for the purpose of perpetuating the memory of them, and can, at any subsequent period, swear that he had made the entry at the time for that purpose, and that he knows from that memorandum that the facts did exist, it will be good evidence, although the witness does not retain a distinct recollection of the facts themselves.’

“In Rice v. Fidelity & Casualty Co. of New York, 250 Mich 398, 403, it was said:

“ ‘This Court has held that a memorandum made by a witness, at the time, if the witness has no present remembrance, and his recollection is not refreshed by his own memorandum, may, if the witness testifies it was true when made, be admitted in evidence. Fisher v. Kyle, 27 Mich 454; Spalding v. Lowe, 56 Mich 366; Koehler v. Abey, 168 Mich 113.’ ”

While Germiquet and Rice and the cases cited therein are civil cases, there is no reason to hold the rule of evidence in this respect to be different in criminal cases. This may be concluded from People v. Johnson, 215 Mich 221, in which a stenographer who had taken notes of an oral statement or confession of defendant and transcribed the same, was permitted to read the transcript into the record, although in that case it was treated as a matter of refreshing the witness’s recollection. See, also, from other States, the following criminal cases: People v. Gardner, 147 Cal App 2d 530 (305 P2d 614); State v. Bradley, 361 Mo 267 (234 SW2d 556); Loose v. State, 120 Wis 115 (97 NW 526); Hall v. State, 223 Md 158 (162 A2d 751); Kinsey v. State, 49 Ariz 201 (65 P2d 1141, 125 ALR 3); Rumely v. United States (CCA2), 293 F 532; People v. Randazzio, 194 NY 147 (87 NE 112).

In Schoborg v. United States (CCA 6), 264 F 1, certiorari denied in 253 US 494 (40 S Ct 586, 64 L ed 1029), detectives, by use of a planted microphone, overheard conversations in the shop of one of the defendants convicted of disloyal activities in time of war. For the express purpose of securing evidence against the defendants, they made notes of what they overheard and at the end of each day prepared reports therefrom. They testified that they had no independent recollection, in detail, of what they had heard but that they knew their notes were correct and that the reports made therefrom were accurate. These were held admissible.

Defendants’ objections that the officers were prompted by motives to secure convictions and that they only recorded in the memoranda certain of defendants’ daily activities which, seemed to prove the crime, hut failed to record all of the defendants’ other actions each day, are effectively met and disposed of in Schoborg. It was there held that it was no valid objection to the notes or memoranda that they contained only matters overheard which pertained to the crime charged, and nothing about conversations overheard about other subjects, the court saying that the latter would have been inadmissible because immaterial. There, too, the detectives made the notes and reports for the sole purpose of obtaining evidence to be used against defendants. The motives of the officers in preparing the memoranda bear on the credibility hut not on the admissibility thereof. The judge, as trier of the facts in this case, having been duly apprised of the motives, purpose and manner of the surveillance and making of the notes and memoranda, the matter was properly before him to determine the credit to be given thereto.

As for defendants’ objection that the memoranda were not the best evidence but secondary because they were mere copies of the officers’ original notes, we observe that in People v. Johnson, supra, the stenographer was permitted to read into the record the paper which she testified was a correct transcript of her notes. We think the testimony of the officers that the memoranda constituted a correct record, although not exact copies, of their notes together with matter drawn from their memories, qualified them for admission and consideration by the judge as to credibility and accuracy. They were prepared by officers who had personal, firsthand knowledge of the matters recorded in the memoranda and the fact that, in the preparation, the officers referred to their notes to supplement their memories, did not render the memoranda secondary evidence and make them inadmissible.

Affirmed.

Carr, C. J., and Kelly, J., concurred with Dbthmers, J. Black, J., concurred in result.