People v. Dow

Morse, J.

The respondent was tried and convicted in the recorder’s court of the city of Detroit of burglary.

On the night of the twenty-sixth of April, 1886, about 3 o’clock in the morning, the house of John B. Moloney, in the city of Detroit, was broken into and entered, and several articles stolen therefrom, among them a gold watch and chain.

The evidence against the respondent tended to show him in company with Thomas Powers that evening and early next morning, and with him at one place where Powers attempted to dispose of the watch stolen from Moloney’s residence, and also at one Rosenberg’s, where Powers sold the watch.

George Marrow testified that he met Powers and Dow on Woodward avenue, and went to a saloon, where Powers asked him to buy a couple of tickets to Rochester, New York, in the presence of Dow, and said that he did not want to go down town because he was afraid he would be arrested; that he had been arrested in Detroit once before, and was afraid *719 lie would be arrested again as a suspicious character, but they •couldn’t do anything with him but hold him for a couple of •days, and he wanted to buy the tickets for that week. Both the respondents gave him money, $15 in all, and Marrow took it, and went and purchased the tickets. Met Powers and Dow at a saloon afterwards, where arrangement had been made to meet, and gave them the tickets.

This testimony as to what Powers said was objected to as incompetent as against Dow, who was having a separate trial. The evidence was competent. The occurrence was soon after ■the burglary, and Dow seems to have been equally interested with Powers in the purchase of these tickets, and the use of them. He was arrested at Rochester. The conversation was in his presence and hearing, and therefore admissible.

The main objection and exception relates to the admission in evidence of the official record of the weather, as kept in •the office of N. B. Conger, signal officer in charge of the signal service station at Detroit.

Mr. Conger was offered as a witness, and testified that he kept a record of the weather in his office, and had the official record with him. He was then asked to state the condition •of the weather on the evening of April 26, referring to such record. It was objected to as incompetent. Objection overruled. He then testified it was not in his handwriting, but was taken under his supervision. The fact of the record not being in the handwriting of the witness was then made the basis of another objection to its reception in evidence. The •court, after some hesitation, allowed the record to be put in evidence.

On cross-examination it appeared that the witness left the signal office at 6 o’clock in the evening, and did not return until the next morning. When he went away, he left his assistant, Mr. Baldwin, in charge of the office. Did not know of his own knowledge that Baldwin or the other assistant remained in the office all night, but supposed one of them *720 did. According to this record, the night of the twenty-sixth rain commenced by meridian time at 7:10 p. m., and ended at 9:30 p. m., and then commenced again at 9:51 p. ar., and stopped at 11:45 p. ar. On the twenty-seventh, beginning at. 7 a. i., the weather was clear. No observations were taken after 11:45 p. ar. This evidence was introduced in rebuttal of the evidence in regard to rain by the witnesses for the defense, whose testimony tended to show an alibi. The following questions were put to Conger on cross-examination:

“ Q. Can you swear, of your own knowledge, that your-assistants took these observations on the night in question?

“A. Yes, sir.

“ Q. Of your own knowledge?

“A. Yes, sir; I didn’t see them, of course. The observations are in their handwriting here in this original record.”'

The counsel for the respondent argues that this record, not being made by the witness himself, and the persons who¡ made it not being sworn, and there being no certainty that they went outside of the office-and took the observations recorded by them, is not admissible in a criminal cause. He contends that the admission of such record is in violation of' the constitutional provision that the accused shall have the - right to be confronted with the witnesses against him. We-have heretofore held that this provision does not apply to the-proof of facts in their nature essentially and purely documentary, and which can only be proved by the original, or by a>. copy officially certified. People v. Jones, 24 Mich. 225 . But. that is not this case. This Court has also held that market. reports, and the records of the weather as kept at the asylum, at Kalamazoo, were properly admitted in civil cases. Sisson v. Cleveland & T. R. R. Co., 14 Mich. 489, 497 ; De Armond v. Neasmith, 32 Id. 231, 233; Cleveland & T. R. R. Co. v. Perkins, 17 Id. 296.

The record of the weather in this case was not one made-by the witness, or one that he knew certainly to have been accurately made in accordance with the actual state of, the-i *721 weather. It seems to me that the presumption in favor of the correctness of this record, because it is an official one, if such presumption can be said to exist under the circumstances shown as to the manner of the observations being taken and the record being kept, cannot be used against the respondent in a criminal case. It was a vital question upon the trial whether the testimony looking towards an alibi was true or not, and the condition of the weather that evening was important in aiding the jury in their determination of that question.

If Conger had made the record himself, or taken the observations himself, the evidence would have been competent; but the respondent was entitled to have the testimony of Baldwin, or the assistant who took the observations and made the record of the same, and to be confronted with such witness. As it was, the presumption arising from its being an official record only saved it from being hearsay testimony. This official statement or record of the weather, though required to be kept, and therefore an official document, is not, however, a record of facts which can only be proved by the original, or a properly certified copy. The facts therein stated are facts open to the observation of anybody, and capable of being established satisfactorily by oral testimony, or minutes kept by a private person, if such minutes refresh his recollection.

The record ought not to have been introduced in evidence without the presence of the man who made the observations and the record, on the stand, so that the accuracy of such Tecord could have been inquired into.

For this error the judgment must be reversed, and a new trial granted.

The other Justices concurred.