Before BIGGS, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.
The defendant was indicted under 18 U.S.C. (1940 ed.) Sections 415 and 417*fn1 in four counts charging him with wilfully, unlawfully and feloniously having transported or having caused to be transported in interstate commerce certain chattles of the value of $5,000 or more. The first and third counts were dismissed, and the defendant was convicted on the second and fourth counts, from which conviction he appeals.
We are not here primarily concerned with the particular fraudulent representations which the defendant made. Rather we are called upon to decide the propriety of the method utilized at the trial to prove what chattels the defendant obtained and transported, and their value. In short, the principal question is whether the witnesses who testified to these essentials were properly permitted to refresh their memory. In addition, the defendant also asserts error in the acceptance of evidence relating to the transactions between the defendant and the complaining witness, but which was not necessarily a part of the indictment.
The chattels involved are numerous items of bric-a-brac, linens, silverware, and other household articles of quality and distinction. They were the property of Doris Farid es Sultaneh, and were kept in her home at Morristown, New Jersey, from which the defendant is alleged to have transported them to Arizona in a truck and station wagon. The defendant did not deny receiving some of the lady's chattels, but did deny both the quantity and quality alleged. Moreover, it does not appear open to doubt that the truck made but one trip, and the station wagon three, carrying the goods in controversy.
To prove the specific chattels involved, the government relied on the testimony of Doris Farid; to prove their value, it relied on the testimony of an expert, one Leo Berlow.
Farid testified that as the chattels were being moved from the house, she made longhand notes, and that later she copied these notes on her typewriter. Only one of the original notes was produced, and became part of the evidence of the case, a search by Farid having failed to disclose the others. The government sought to have Farid testify with respect to the chattels by using the typewritten notes for the purpose of refreshing her recollection.*fn2 Although the defendant's objection was overruled, the government, on the next day of the trial, submitted to Farid lists of chattels taken out of a copy of the indictment, but from which had been deleted such information as dates and values.*fn3 With the aid of these lists, the witness testified that her recollection was refreshed*fn4 and that she presently recognized and could identify each item. She was then permitted to read the lists aloud, and testified that she knew that the items were loaded on the truck or station wagon, as the case was. The lists were neither offered nor received in evidence.
The expert, Berlow, testified that he had visited Doris Farid's home on numerous occasions in his professional capacity as dealer in antiques, bric-a-brac, etc.; that he was very familiar with the furnishings therein, having examined the household for the purpose of buying items from Farid or selling them for her on commission. He was shown the same lists which Farid had used to refresh her recollection, and with their aid testified that he could recall the items individually, with some exceptions; that he remembered them to the extent that he could not only describe the items, but in many instances could state where in the house he had seen them; and that he could give an opinion as to their value. This he was permitted to do.
In denying the acceptability of the evidence related, the defendant rests primarily on Putnam v. United States, 1896, 162 U.S. 687, 16 S. Ct. 923, 40 L. Ed. 1118, and refers to this Court's decision in Delaney v. United States, 3 Cir., 1935, 77 F.2d 916. It is his position that the lists should not have been used because they were not made by the witnesses at or shortly after the time of the transaction while the facts were fresh in memory. It is further contended that the witnesses were not hostile to the government, and what Farid did, in fact, was to read off the lists as proof of the actual articles loaded on the vehicles.
The government, on the other hand, asserts that the witnesses gave their independent recollection, which is admissible, albeit refreshed, because it is the recollection, and not the writing which is the evidence.It goes further, and urges that where the witness has an independent recollection, anything may be used to stimulate and vitalize that recollection without regard to source or origin.*fn5
Refreshing the recollection of a witness is not an uncommon trial practice, but as a theory of evidentiary law its content and application are far from clear. The large collection of cases found in 125 A.L.R. 19-250*fn6 illustrates the point. An analysis as good and trustworthy as presently exists appears in Chapter XXVIII, 3 Wigmore on Evidence (3rd ed. 1940). Professor Wigmore separated, broadly, what he called "past recollection recorded" from "present recollection revived",*fn7 attributing much of the confusion in the cases to a failure to make this distinction and to the use of the phrase "refreshing the recollection" for both classes of testimony. The primary difference between the two classifications is the ability of the witness to testify from present knowledge:*fn8 Where the witness' memory is revived, and he presently recollects the facts and swears to them, he is obviously in a different position from the witness who cannot directly state the facts from present memory and who must ask the court to accept a writing for the truth of its contents because he is willing to swear, for one reason or another, that its contents are true.
Recognition of the basic difference between the two categories of evidence referred to is explicit in the federal*fn9 cases, although in some the distinction is obscured by the lack of necessity for it.*fn10 In Cohen v. United States, 3 Cir., 1929, 36 F.2d 461, 462, this Court*fn11 noted that the witness "testified not from her present recollection * * * but rather from her past recollection recorded". And in Delaney v. United States, 3 Cir., 1935, 77 F.2d 917, we referred with approval to Jewett v. United States, 9 Cir., 1926, 15 F.2d 955, 956, wherein the Court said:
"It is one thing to awaken a slumbering recollection of an event, but quite another to use a memorandum of a recollection, fresh when it was correctly recorded, but presently beyond the power of the witness so to restore that it will exist apart from the record."
The difference between present recollection revived and past recollection recorded has a demonstrable effect upon the method of proof. In the instance of past recollection recorded, the witness, by hypothesis, has no present recollection of the matter contained in the writing. Whether the record is directly admitted into evidence, or indirectly by the permissive parroting of the witness, it is nevertheless a substitute for his memory and is offered for the truth of its contents. It assumes a distinct significance as an independent probative force, and is therefore ordinarily required to meet certain standards.*fn12 These requirements are the more understandable in consideration of the fact that the court is at once desirous of determining whether the writing may be safely received as a substitute for the ...