(apparently as an admission) and over the objection of counsel for the petitioner, it was allowed.
It is submitted that the ruling of the referee was erroneous. Before discussing the applicable rules of evidence, it should be noted that General Order XXII, 11 U.S.C.A. following section 53, provides: "The examination of witnesses before the referee * * * shall be governed by the Rules of Civil Procedure for the District Courts of the United States * * * in so far as they are not inconsistent with the Act or with these general orders."
Rule 43(a), 28 U.S.C.A. following section 723c, regarding choice of law with respect to rules of evidence, refers to these three sources: (1) federal statutes; (2) rules formerly applied in federal equity suits and (3) local law. If the evidence is admissible under any of these, it is admissible in the federal trial.
Generally speaking, memoranda have been used in evidence with regard to three situations:
(1) When such refreshes the memory of a witness so that he may testify from his own present recollection.
(2) Where the witness no longer has a present recollection but recalls having made an accurate memorandum of the event at or near the time in question.
(3) Where the witness has no present recollection and cannot vouch from his original memory as to the accuracy of this particular memorandum but can swear from his habits and course of business that the memorandum would not have been made unless it was correct.
In the first situation above, the evidence is the testimony of the witness and not the writing which is used only to stimulate the memory of the witness. In the second and third situations noted, the evidence is the writing itself. In the instant case, the writing itself was admitted into evidence without any testimony on the part of the witness as to the statements of Crowley and without any indication that the witness lacked a present recollection of the event in question. This was error, in so far as the memorandum of the past recollection should not have been admitted without a showing that the witness lacked a present recollection.
"Where a witness has a present recollection of a past event, although his memory is refreshed by a memorandum made at the time of the event, he testifies from such recollection; but where he has no present recollection of such past event, even when aided by his memorandum, the latter itself may be offered in evidence, on proof by the witness * * * of its accuracy when made, and that it was made when the transaction was fresh in his mind." Christian Moerlein Brewing Co. v. Rusch, 1922, 272 Pa. 181, 187, 116 A. 145, 147. (Italics supplied.)
"There is no difficulty about the rule in matters of this kind.The recollection of the witness -- not the memorandum used to refresh it -- is the real evidence. * * * If the witness has a present recollection of a past event, although his memory may be refreshed by a memorandum made at the time, he testifies from such recollection. When a witness has no present recollection of a past event, even when aided by a memorandum made by him or under his immediate supervision, the memorandum itself may be admissible." Commonwealth v. Perri, 1929, 97 Pa.Super. 78, 84.
Compare Harlan, J. in Vicksburg & Meridian R.R. v. O'Brien, 1886, 119 U.S. 99, 102, 7 S. Ct. 118, 120, 30 L. Ed. 299: "There are, however, other cases to the effect that, where the witness states, under oath, that the memorandum was made by him presently after the transaction to which it relates, for the purpose of perpetuating his recollection of the facts, and that he knows it was correct when prepared, although after reading it he cannot recall the circumstances so as to state them alone from memory, the paper may be received as the best evidence of which the case admits.
"The present case does not require us to enter upon an examination of the numerous authorities upon this general subject; for it does not appear here but that at the time the witness testified he had, without even looking at his written statement, a clear, distinct recollection of every essential fact stated in it. If he had such present recollection, there was no necessity whatever for reading that paper to the jury."
"In order to read from the memorandum or to introduce the same into evidence, it is first necessary for the witness to testify that he has no independent recollection of the facts recited in the memorandum. Deal v. Hubert, 209 Ala. 18, 95 So. 349." Jones on Evidence (2d Ed. 1926) vol. 5, Sec. 2393, n. 5.
In the absence of preliminary testimony to the effect that Tanzolo had no present recollection of Crowley's statement, it was error for the referee to admit into evidence a memorandum of his past recollection. However, this error on the part of the referee was without prejudice to the reclamation petitioner, and is in the same category as the fourth assignment of error previously dismissed.
In conclusion, the first, second, and third assignments of error are dismissed. The fourth and fifth assignments of error are sustained, but since they were without prejudice to the reclamation petition, the petition for review is denied, and the order of the referee is affirmed.
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