
    MOORE v. STATE.
    (No. 5004.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. Criminal Law ⅞=>444 — Documentary Evidence-Authentication.
    A book kept by the seller of automobile tires, showing a tire with a number corresponding to that of a tire of the same kind found in defendant’s possession was sold to the owner of the car defendant was claimed to have stolen, is inadmissible, where ⅛⅞ salesman, who made the memoranda from which the record was entered in the book by another, did not testify, and the bookkeeper, who testified, knew nothing as to the accuracy of the memoranda.
    2. Criminal Law <®=>1169(1) — Review — Prejudicial Error — Evidence.
    In a prosecution for theft of an automobile, erroneous admission of a book kept by seller of tires, containing a record of a sale to the owner of a tire, the number of which corresponded to that of a tire of the same make found in defendant’s possession, held- prejudicial, considering its materiality and other evidence in the case.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    George Moore was convicted of the theft of an automobile, and he appeals.
    Reversed and remanded.
    J. A. I-Cibler and Shurtleff & Cummings, all of Waco, for appellant.
    Jno. B. McNamara, Co. Atty., and D. C. Woods, Asst. Co. Atty., both of Waco, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for theft of an automobile.

The automobile was left on the street by the owner, and the state relied upon circumstances testified to by an accomplice, and other circumstances tending to corroborate him and connect the appellant with the offense. The circumstances testified to by the accomplice were, in substance,, that there was found, at a livery barn belonging to appellant’s father, an automobile which was not in running order; that after it had remained there for some time appellant claimed to have brought it there, took possession of it, and had it repaired, and it was subsequently taken by the accomplice and another person to Ft. Worth; that while it was in the barn the accomplice, at appellant’s suggestion,, removed from it two new tires and put them on a car belonging to appellant.

One of the circumstances relied upon by the state to show appellant’s guilt, and connection with the crime, was the possession by him of one of these tires. A tire found in his possession was introduced in evidence. It was a Pennsylvania tire, No. C-409098. To identify this tire as one that was on the stolen automobile, the state introduced the books kept by a witness named Jenkins. The entry introduced from the book kept by him was to the effect that a Pennsylvania tire, No. C-409098, had been sold by the firm of which he was a member, or employe, to Goggan Bros, on the 16th day of January, at Waco. As a predicate for the introduction of this evidence, ‘this witness testified that his firm handled Pennsylvania tires, and kept a record showing the number of the tire sold, and the .name of the purchaser, and the date of the sale; that that record was in a book which was kept by him correctly; that his entry was made from memoranda taken from the daily sales tickets, which tickets were made by the various salesmen; that they were not received iy him direct from the salesmen, but the data on these tickets which came into his possession were entered by him on the book which was introduced in evidence, his custom’ being to enter them on the same or the following day. He said that he supposed the only person who would know whether the ticket was correctly made or not would be the salesman who made the sale.

The admissibility of the entry made ⅛ the book is challenged by a bill of exceptions, and we think that there was no sufficient predicate laid for its introduction. The subject of entries of this character is discussed at some length by Mr. Wigmore in his work on Evidence (volume 2, § 1530). The substance, in effect, of his statement of the law upon the subject, is that an entry upon a book correctly made from a sales ticket or memorandum is admissible only when the correctness of the memorandum from which the entry is made is established by legal evidence; that is, that the salesman who sold the tire in the present instance having personal knowledge of the’transaction, and havirg made a memorandum upon which the bookkeeper in making the entry acted, it is essential that proof be made that the data furnished by him in the memorandum was correct. Illustrating, he says:

“For example, if S. has made a written memorandum of a transaction done by Mm, and has given the writing to B., who has copied it and destroyed the original, then if S. swears the original to have been accurately made, and if B. swears the copy to be correct, the copy produced is thus by their joint testimony rendered an accurate record of the transaction.”

In the present instance the salesman was not introduced, nor was the memorandum made by him introduced or accounted for, nor any evidence to show its correctness placed before the jury or the court upon the preliminary inquiry.

In this state of the record the accuracy of the entry made by Jenkins in his book showing the original transaction depends upon the accuracy of the information upon which he acted, and as to the verity of this information he claimed to have no knowledge. His action was based upon hearsay. There may exist in given cases circumstances which, when proved, would render an entry made in a book admissible in evidence, although the testimony of the salesman was not produced. To render it admissible, however, in the absence of the production of the testimony of the salesman, proof of the circumstances excusing the production is essential. Decisions of this court touching the phases of the subject will be found in Howard v. State, 35 Tex. Cr. R. 136, 32 S. W. 544; Wade v. State, 37 Tex. Cr. R. 403, 35 S. W. 663; McOonieo v. State, 61 Tex. Cr. R. 48, 103 S, W. 1047; Wyres v. State, 13 Tex. App. 57; Jacobs v. State, 42 Tex. Cr. R. 359, 59 S. W. 1111; Johnson v. State, 42 Tex. Cr. R.' 441, 60 S'. W. 667.

Considering the other evidence in the case, the proof of the possession by the appellant of one of the tires which was on the alleged stolen car at the time the owner missed it was of great importance. So material was it that the identification of the tire found in appellant’s possession with the one purchased by the owner of the car, by illegal testimony, constitutes an error of-such consequence that it requires a reversal of the judgment of conviction, which is ordered. 
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