Counsel for plaintiff in error in their brief state:
"The questions which the state desires to present to the court for its consideration in this case are as follows:
"First. For the purpose of showing criminal intent, can other transactions, similar in character and arising between the same parties and out of the same transactions, be introduced in evidence in the trial of a criminal cause?
"Second. Are books, kept by a person, firm, or corporation in the usual course of business, after being properly verified, receivable in evidence as proof of the facts therein stated, in the trial of a criminal cause?
"Third. In the trial of a criminal cause, does the law forbid the use of a book after proper authentication, by a witness, for the purpose of refreshing his memory?"
We will consider and answer the questions presented in the order in which they are set forth.
As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. The reason for the rule is that no person shall be convicted of an offense by proving that he is guilty of another. To this rule, however, there are exceptions, which are well stated in Cyc. They are in part as follows:
"The general rule does not apply where the evidence of another crime tends directly to prove defendant's guilt of the crime charged. Evidence which is relevant to defendant's guilt is not rendered inadmissible because it proves or tends to prove
him guilty of another and distinct crime. It often happens that two distinct offenses are so inseparably connected that the proof of one necessarily involves proving the other, and in such a case on a prosecution for one evidence proving it can not be excluded because it also proves the other. Evidence of another and distinct crime is admissible if it was committed as part of the same transaction and forms part of the res gestae."
"Where the nature of the crime is such that guilty knowledge must be proved, evidence is admissible to prove that at another time and place not too remote the accused committed or attempted to commit a crime similar to that charged."
"Evidence of other crimes similar to that charged is relevant and admissible when it shows or tends to show a particular criminal intent which is necessary to constitute the crime charged. Any fact which proves or tends to prove the particular intent is competent, and cannot be excluded because it incidentally proves an independent crime. Where the question is whether a certain act was intentional or accidental, evidence to show that accused intentionally committed similar acts before is relevant to show intent."
"Where the crime charged is part of a plan or system of criminal action, evidence of other crimes near to it in time and of similar character is relevant and admissible to show the knowledge and intent of the accused and that the act charged was not the result of accident or inadvertence. This rule is often applied where the crime charged is one of a series of swindles or other crimes involving a fraudulent intent for the purpose of showing this intent." (12 Cyc. pages 406 to 411 inclusive.)
Says. Prof. Wigmore:
"To prove intent, as a generic notion of criminal volition or willfulness, including the various non-innocent mental states accompanying different criminal acts, there is employed an entirely different process of thought. The argument here is purely from the point of view of the doctrine of chances — the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances
occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. * * * In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent. * * * It will be seen that the peculiar feature of this process of proof is that the act itself is assumed to be done, — either because (as usually) it is conceded, or because the jury are instructed not to consider the evidence from this point of view until they find the act to have been done and are proceeding to determine the intent. This explains what is a marked feature in the rulings of the courts, namely, a disinclination to insist on any feature of common purpose or general scheme as a necessary requirement for the other acts evidentially used. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent." (Vol. 1, sec. 302, Wigmore on Evidence.)
We are of opinion that evidence of other similar transactions under the same contract, whether before or afterwards, was relevant to the issue, and was not made inadmissible by reason of the fact that it would tend to prove the defendant guilty of another offense than that charged in the information. It was clearly admissible for the purpose of proving guilty knowledge, or the intent with which the act charged was committed. They were acts of the defendant in a continuous series of transactions with the same party under the same contract, and were precisely of the same character as the act for which he was being tried, and they were so connected that they formed a part of the res gestae, and were a part of the entire transaction under the defendant's contract to do the legislative printing for
the House of Representatives. It may be regarded as settled that where the offense charged is so connected with the other offenses sought to be proved as to form a part of an entire transaction, evidence of the latter may be given to show the character of the former. We think the evidence offered was clearly admissible under the first three of the exceptions stated above. It seems to us that the evidence offered was also admissible under the fourth exception stated above, for the purpose of proving a pre-existing design, or systematic scheme or plan, on the part of the defendant to cheat and defraud the state, which included the doing of the particular act charged.
In the case of Koontz v. State, 10 Okla. Cr. 553,139 P. 842, this court said:
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Counsel for plaintiff in error in their brief state:
"The questions which the state desires to present to the court for its consideration in this case are as follows:
"First. For the purpose of showing criminal intent, can other transactions, similar in character and arising between the same parties and out of the same transactions, be introduced in evidence in the trial of a criminal cause?
"Second. Are books, kept by a person, firm, or corporation in the usual course of business, after being properly verified, receivable in evidence as proof of the facts therein stated, in the trial of a criminal cause?
"Third. In the trial of a criminal cause, does the law forbid the use of a book after proper authentication, by a witness, for the purpose of refreshing his memory?"
We will consider and answer the questions presented in the order in which they are set forth.
As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. The reason for the rule is that no person shall be convicted of an offense by proving that he is guilty of another. To this rule, however, there are exceptions, which are well stated in Cyc. They are in part as follows:
"The general rule does not apply where the evidence of another crime tends directly to prove defendant's guilt of the crime charged. Evidence which is relevant to defendant's guilt is not rendered inadmissible because it proves or tends to prove
him guilty of another and distinct crime. It often happens that two distinct offenses are so inseparably connected that the proof of one necessarily involves proving the other, and in such a case on a prosecution for one evidence proving it can not be excluded because it also proves the other. Evidence of another and distinct crime is admissible if it was committed as part of the same transaction and forms part of the res gestae."
"Where the nature of the crime is such that guilty knowledge must be proved, evidence is admissible to prove that at another time and place not too remote the accused committed or attempted to commit a crime similar to that charged."
"Evidence of other crimes similar to that charged is relevant and admissible when it shows or tends to show a particular criminal intent which is necessary to constitute the crime charged. Any fact which proves or tends to prove the particular intent is competent, and cannot be excluded because it incidentally proves an independent crime. Where the question is whether a certain act was intentional or accidental, evidence to show that accused intentionally committed similar acts before is relevant to show intent."
"Where the crime charged is part of a plan or system of criminal action, evidence of other crimes near to it in time and of similar character is relevant and admissible to show the knowledge and intent of the accused and that the act charged was not the result of accident or inadvertence. This rule is often applied where the crime charged is one of a series of swindles or other crimes involving a fraudulent intent for the purpose of showing this intent." (12 Cyc. pages 406 to 411 inclusive.)
Says. Prof. Wigmore:
"To prove intent, as a generic notion of criminal volition or willfulness, including the various non-innocent mental states accompanying different criminal acts, there is employed an entirely different process of thought. The argument here is purely from the point of view of the doctrine of chances — the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances
occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. * * * In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent. * * * It will be seen that the peculiar feature of this process of proof is that the act itself is assumed to be done, — either because (as usually) it is conceded, or because the jury are instructed not to consider the evidence from this point of view until they find the act to have been done and are proceeding to determine the intent. This explains what is a marked feature in the rulings of the courts, namely, a disinclination to insist on any feature of common purpose or general scheme as a necessary requirement for the other acts evidentially used. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent." (Vol. 1, sec. 302, Wigmore on Evidence.)
We are of opinion that evidence of other similar transactions under the same contract, whether before or afterwards, was relevant to the issue, and was not made inadmissible by reason of the fact that it would tend to prove the defendant guilty of another offense than that charged in the information. It was clearly admissible for the purpose of proving guilty knowledge, or the intent with which the act charged was committed. They were acts of the defendant in a continuous series of transactions with the same party under the same contract, and were precisely of the same character as the act for which he was being tried, and they were so connected that they formed a part of the res gestae, and were a part of the entire transaction under the defendant's contract to do the legislative printing for
the House of Representatives. It may be regarded as settled that where the offense charged is so connected with the other offenses sought to be proved as to form a part of an entire transaction, evidence of the latter may be given to show the character of the former. We think the evidence offered was clearly admissible under the first three of the exceptions stated above. It seems to us that the evidence offered was also admissible under the fourth exception stated above, for the purpose of proving a pre-existing design, or systematic scheme or plan, on the part of the defendant to cheat and defraud the state, which included the doing of the particular act charged.
In the case of Koontz v. State, 10 Okla. Cr. 553,139 P. 842, this court said:
"Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the crime charged."
The question of controlling importance which is raised upon this appeal is the admissibility of the books of the Warden Printing Co., as offered in evidence by the state, and upon the defendant's objections excluded by the trial court.
The contract of the defendant required that on each legislative day he should furnish two hundred copies each of the House Journal and Calendar, and two hundred copies of all bills ordered printed.
S.R. Warden testified that he was president of the Warden Printing Company, that the defendant employed the Warden Printing Company to do the legislative printing required under his contract with the state, and the Warden Printing Company did the same. That the bills or vouchers for said printing were made out in triplicate and delivered to the defendant, except that one copy was retained for settlement with the defendant; that these bills were made out from the books of the Warden Printing Company. That the entries in the books were made by witness and by Mrs. Warden, who was secretary
and treasurer of the Warden Printing Company, and by an employee, D.V. Carruth; that the entries were made in the regular course of business. That when the entries were made in this book of original entries he counted the pages and checked them up and made a correct entry; that the claims or vouchers furnished the defendant for legislative printing were correctly made out in accordance with the number of pages printed as shown by the entries in this book. That he had no independent recollection of the number of House bills, journals, and calendars, or the number of pages contained in each as set forth in the claims so furnished. That the defendant settled with the Warden Printing Company on the basis of the claims so made out and delivered to him by the company.
The state then offered in evidence the book which, for the purpose of identification, was marked "Exhibit H." The defendant's objection to the admission of the book in evidence was sustained. Thereupon the state offered in evidence that part of the book containing the entries as made by witness. The defendant's objection was sustained.
Mrs. S.R. Warden testified that as secretary and treasurer of the company she had general supervision of the bookkeeping during the session of the Third Legislature; that the book marked "Exhibit H" was a book of original entries; that the entries indicating the number of pages in the claim in question were made by witness; that when she made the entries she counted the pages and made a correct entry of the number of pages. That Mr. Warden and Mr. Carruth assisted her. That before the claims were delivered to the defendant she counted the pages, listed them, checked them back again and compared them with the entries and found them correct; that she verified each claim "to be sure that they were just as we had gone over them," and then added the total on the adding machine. That independent of the entries, or without the use of the book, witness would not be able to tell the number of pages charged in any one of the claims.
D.V. Carruth testified that part of the entries in the book "Exhibit H" were made by him as an employee of the Warden
Printing Company. That he would always take two copies of each bill or calendar or journal and place them in the tracer, which was an envelope containing the number of the order, and which was filed to go to Mrs. Warden when she made out the claims. That when he made the entries in the book he counted the number of pages of each bill, calendar, and journal, and the entries so made by him were absolutely correct.
The state offered in evidence that part of the book containing the entries upon which the claim in question was made out. The court sustained the defendant's objection thereto. The state again offered in evidence the book "Exhibit H." The court sustained the defendant's objection and excluded the same. The court below seems to have excluded the evidence offered on the ground that it was hearsay, and that its admission would violate the defendant's constitutional right to be confronted with the witnesses against him.
The learned counsel for the defendant in their brief contend:
"Even though identified as the books of the Warden Printing Company, and as having been kept in the regular course of business, they were not admissible as original evidence in this proceeding, for the reason that they were books kept by a third party, and over which the defendant had no control or supervision, and for the further reason that their introduction would have deprived the defendant of his constitutional right to be confronted with the witnesses against him."
We think that these contentions are obviously untenable. The competency of the book "Exhibit H" is clearly established by the testimony, and it should have been admitted on the same ground that any relevant and material documentary evidence, proved to be competent, is admitted.
It appears that the defendant confided the entire business of doing the legislative printing under his contract with the state to the Warden Printing Company. The book contained a detailed statement of the items showing the printing done under the defendant's contract with the state, the entries in which were testified to be correct by the persons who made them. These entries show the number of each order, the date of the
legislative day for which House calendars and journals were printed, and the number of pages of each calendar and journal. Also the number of House bills printed, the number of pages of each House bill, the official number of the bill, and the date of delivery of each order.
It also appears that the defendant settled with the Warden Printing Company according to the entries in this book. This in itself is sufficient to show the delivery of the printing, so done, to the state. If he had secured the warrant in question from the State Auditor, upon a raised claim or voucher, and had secured other warrants upon other raised claims or vouchers and subsequently settled with his agent or employee, the Warden Printing Company, upon the claims or vouchers as originally made out and delivered to him by the Warden Printing Company, it would follow almost necessarily that the defendant knew the claim or voucher in question had been raised and was false when he obtained from the State Auditor the warrant for the amount of the claim.
The statutory rule is found in section 5114, Rev. Laws 1910, which provides:
"Entries in books of account may be admitted in evidence, when it is made to appear by the oath of the person who made the entries that such entries are correct, and were made at or near the time of the transaction to which they relate, or upon proof of the hand-writing of the person who made the entries, in case of his death or absence from the county, or upon proof that same were made in the usual course of business."
We are of opinion that all entries in the book offered in evidence relating to the House legislative printing, were admissible, not only as independent evidence of facts forming a part of the res gestae, but also as declarations or admissions made by the defendant against his interest. We certainly know of no decision, rule of evidence, or established principle that requires the exclusion of such evidence when offered in connection with the testimony of the persons who made the entries therein, that they were correct. The constitutional provision, section 28, Bill of Rights, giving the accused the right to be confronted with the witnesses against him, does not apply to the
proof of facts in their nature essentially and purely documentary. In the case at bar, the persons who made the entries were produced as witnesses, and the book was properly identified, and the defendant had the opportunity to cross-examine said witnesses. For this reason no question of the defendant's constitutional right to be confronted with the witnesses against him arises in this case.
In the case of Curtis v. Bradley, 65 Conn. 99, 31 A. 591, 28 L.R.A. 143, 48 Am. St. Rep. 177, the Connecticut Supreme Court of Errors say:
"Legal evidence is not confined to the human voice or oral testimony; it includes every tangible object capable of making a truthful statement, such evidence being roughly classified as documentary evidence. In oral evidence the witness is the man who speaks; in documentary evidence the witness is the thing that speaks. In either case the witness must be competent, — i.e.,
must be deemed competent to make a truthful statement. And in either case the competency of the witness must be proved before the evidence is admitted; the difference being that in oral evidence the competency is proved by a legal presumption, and in documentary evidence the competency must be proved by actual testimony, and the further difference that in oral evidence the credit of the witness is tested by his own cross-examination, while in documentary evidence the credit of the witness is tested by the cross-examination of those who must be called to prove its competency."
It appears that after the court sustained the objection to the introduction of the books of the Warden Printing Company as evidence of what they contained, S.R. Warden was recalled and asked if he could state from memory the dates of printing, and the number of pages of printing on each date, and he said that he could not. He was then asked whether or not he could refer to the books and by refreshing his memory therefrom state the dates and the amount of printing actually done on each date, and he said that he could. He was then subjected to cross-examination concerning what memory he had, and it appears conclusively from the testimony of the witness that without the aid of the books he could not state the facts, but that with the aid of the books he could correctly state the
facts sought. He was then asked to refer to the books to refresh his memory and state the amount of House legislative printing done, which, on the defendant's objection, he was not permitted by the court to do. This ruling of the court raises the third question presented. The right of a witness to refresh his memory by consulting on the witness stand memorandum or entries known to the witness to have been correctly made at the time of the transaction, is a settled and necessary rule of evidence.
As stated by Mr. Underhill in his treatise on Criminal Evidence, page 267, sec. 217:
"A witness generally will be permitted to speak of those facts only which are within his personal knowledge and recollection. He may aid or refresh his memory, if it is weak or at fault, by consulting on the witness stand a writing or memorandum, whether made by himself or by another person, if, after examining it and because of what he has read therein, he is able to testify of his own recollection thus renewed and revived. The memorandum is not generally, nor need it ever be, competent evidence. Hence the question of its relevancy, or materiality, should not be considered; nor need it be read as evidence to the jury, though it seems that they may examine it to see if the recollection of the witness could have been refreshed. A witness in a criminal trial will be allowed to consult a writing to refresh his memory under the following circumstances: First. If he, while retaining no independent recollection of the facts transcribed, remembers having made the memorandum, or, when it was made by another, if he remembers having seen it, and that, when he saw it, he knew it was correct. The other class of cases includes writings which the witness does not remember having seen before, and of whose contents he has no present recollection, but, being able to identify the handwriting as his own or as that of some other person, and knowing it to be genuine, he is able on consulting the writing, and because of its aid and his confidence in its genuineness, to swear independently, and of his own knowledge, to the facts. Suppose, for example, a subscribing witness recognizes his signature to an attestation clause of a will. His memory refreshed, he may be able to testify to the facts of acknowledgment or publication and subscription by the testator and to other accompanying circumstances, though he may have no independent memory thereof. In regard to the first class
of writings, it is clear that, under certain circumstances, they are admissible as independent evidence forming a part of the resgestae."
It clearly appears from the testimony that this is not a case of the use of a book or the entries therein for the mere purpose of refreshing the memory of a witness, but it is a case of a witness who does not profess to be able to repeat from memory the facts stated therein, but who testifies that the entries were made at the time of the transaction as it progressed, and that he knows that such entries were correct when made. We think that it is immaterial whether the witness retained a present independent recollection of the facts therein stated or not, the witness had the right to refresh his memory by referring to the entries therein, and the book with the entries therein was also admissible as a means of verification or confirmation of what the witness stated from memory.
In Insurance Company v. Weides, 81 U.S. (14 Wal.) 380, 2o L.Ed. 894, it is said:
"How far papers, not evidence per se, but proved to have been true statements of fact, at the time they were made, are admissible in connection with the testimony of a witness who made them, has been a frequent subject of inquiry, and it has many times been decided that they are to be received. And why should they not be? Quantities and values are retained in the memory with great difficulty. If, at the time when an entry of aggregate quantities or values was made, the witness knew it was correct, it is hard to see why it is not at least as reliable as is the memory of the witness."
The case of State v. Brady, 100 Iowa 191, 69 N.W. 290, 62 Am. St. Rep. 560, 36 L, R, A, 693, was an indictment against an overseer of the poor for filing a false claim for furnishing transportation to a poor person with intent to defraud, and that by such false pretense the defendant did obtain from the Auditor a warrant for the amount of the claim. The Supreme Court of Iowa held that memoranda made at the time of the sale of tickets at the office of a railroad company, for a given period, although not books of account, are, when properly authenticated, admissible in evidence for the purpose of showing when and what tickets were sold.