
    Battles v. Tallman.
    
      Action against Probate Judge for Statutory Penalty, for Issuing Marriage License, to Minor.
    
    1. Memorandum as evidence, and as aid to memory of witness. — A memorandum to which a witness may refer for the purpose of refreshing his memory as to the statements made to him by a party to a cause is not itself admissible as evidence for the adverse party, except when called for by the party against whom it is offered, unless the witness, after examining it, can not testify to a present recollection of the facts therein noted. But if the witness, after referring to the memorandum, is unable to recall the matter so that he now remembers what occurred, yet testifies that at or about the time the memorandum was made he knew its contents, and knew them to be true, then the memorandum itself may be admitted, in connection with the testimony of the witness to this effect.
    2. Same. — "Where a memorandum as to statements made by a party to a cause, which is itself admissible as evidence against him, was made in a book containing other entries with which such party was in no way connected, only that part of the book which contains such memorandum is admissible as evidence against such party.
    3. A charge, which is abstract, or vtlvich assumes the truth of the testimony of a witness should be refused.
    4.' Measure of proof in civil case. — In a civil case, the jury are authorized to find that a controverted fact has been established, if a preponderance of the evidence reasonably satisfies them of its truth; and it is error to instruct them that they should not find that such fact has been established unless they have an “abiding conviction” from the evidence that it has been established, or if they are left “in doubt and uncertainty” as to its existence.
    Appeal from the Circuit Court of Etowah.
    Tried before the Hon. JOHN B. Tally.
    This was an action by the appellant, "William E. Battles, against the appellee, James A. Tallman, who was probate judge of Etowah county, for the recovery of the statutory penalty of two hundred dollars, for issuing a license for the marriage of the plaintiff’s minor daughter, contrary to the provisions of the statute. — Code, 5$ 2318.
    The questions raised on the introduction of evidence are sufficiently shown in the opinion. On the evidence adduced, the court, at the request of the defendant, gave the following written charges, to which the plaintiff separately excepted:
    1. “If the’ jury believe from the evidence that W. E. Battles’ statement of the age of Anna Battles to the census-taker, Murphree, was correct, their verdict must be for defendant; and in determining wbetlier or not bis statement was correct as to Anna Battles’ age, they may look to bis statements as to tbe ages of bis other children, and whether or not he stated them correctly, with all the other evidence in the case.” 2. “The court charges the jury that if, after a survey of all the evidence in the case, including the census-book in evidence, they are not satisfied that Mrs. Mayo was under eighteen years of age when the license was issued, their verdict must be for defendant.” 3. “If the jury, after a careful survey of all the evidence in the case, have not an abiding conviction that Mrs. Mayo, daughter of plaintiff, was under eighteen years of age at the time of the issuance of the marriage license, their verdict must be for defendant.” 4. “The jury have the right to look at the census-book, and the statement made therein as to the age of Mrs. Mayo, daughter of the plaintiff, in 1880, in connection with all the other evidence in the case, in ascertaining the truth as to the age of Mrs. Mayo at the time the marriage license was issued by defendant; and if they believe from the statement made in said census-book as to the age of Mrs. Mayo in 1880, when taken in connection with all the other evidence in the case, that Mrs. Mayo was born in November, 1869, and the marriage license was issued on the 10th day of August, 1888, then, and in that event, plaintiff would not be entitled to recover, and their verdict must be for defendant.” 5. “The jury may look to the census-book in this case, in connection with the evidence of Murphree and all the other evidence in the case, to determine whether or not Mrs. Mayo was over eighteen years of age when the license was issued in this case; and if, after considering all the evidence in the case, they are left in doubt and uncertainty as to whether or not Mrs. Mayo was under eighteen or over it at the issuance of the license, their verdict must be for defendant.” • There was judgment for the defendant, and the plaintiff appeals, and now assigns as error the rulings upon the evidence, and the giving of the charges requested by the defendant.
    Amos E. Goodhue, for appellant.
    B. A. D. Dunlap, contra.
    
   WALKEB, J.

The controverted question of fact in the case was the age of the plaintiff’s daughter, Mrs. Mayo, at the date of the issuance of the license for her marriage. The plaintiff himself testified, that his daughter was at that time under eighteen years of age. Of course it was competent, for tbe purpose of discrediting tbe testimony of tbe witness, to prove that be bad made a former statement in reference to tbe age of bis daughter wbicb would show tbat sbe was more tban eighteen years old when tbe license was issued. Tbe plaintiff himself admitted tbat be stated tbe ages of bis children to Mr. Murphree, who was tbe census enumerator in 1880. Mr. Murphree was examined as a witness for tbe defendant. He testified tbat he put down tbe answers of tbe plaintiff to tbe questions as to tbe ages of tbe members of tbe latter’s family, and tbat tbe census-book wbicb was kept in tbe office of tbe judge of probate was a copy made by tbe witness from bis original entries, wbicb be bad sent to Washington. Against the objection of tbe plaintiff, this census-book itself was admitted as evidence for tbe defendant. Tbe entries therein showing tbe ages of plaintiff’s children were memoranda wbicb tbe witness could have referred to for tbe purpose of refreshing bis memory as to tbe statement on tbe subject made to liim by tbe plaintiff. Tbe absence of tbe original was accounted for, and tbe correctness of tbe copy was shown. But such a memorandum itself is not admissible, except when called for by tbe adverse party, unless tbe witness, after examining it, can not testify to a present recollection of tbe fact therein noted. If tbe witness, when bis memory lias been refreshed, can state tbe particulars from recollection, such statement is tbe better evidence, and tbe party who calls him is not entitled to tbe admission of tbe memorandum as evidence in tbe cause. But if tbe witness, being unable to recall tbe. matter so tbat be now remembers what occurred, yet testifies tbat, at or about tbe time tbe memorandum was made, be knew its contents, and knew them to be true, then tbe memorandum itself may be admitted in connection with bis testimony to this effect. Acklen v. Hickman, 63 Ala. 494; Jaques v. Horton, 76 Ala. 238; Galloway v. Varner, 77 Ala. 541; Snodgrass v. Caldwell, 90 Ala. 319. In tbe present case, it was not made 'to appear tbat tbe witness was unable to recall tbe answers of the plaintiff to tbe question as to tbe ages of bis children. If tbe witness, after bis memory was revived by referring to tbe entries, could remember what tbe plaintiff stated to him was tbe age of bis daughter, tbe defendant was not entitled to introduce tbe memorandum as evidence to show what tbe statement was, but should have proved such statement by tbe testimony of tbe witness himself. In any event, only tbat part of the census-book wbicb contained tbe entries based upon statements shown to have been made by tbe plaintiff was admissible against him. The reports of the census enumerator as to other matters, with which the plaintiff was not connected in any way, were wholly irrele-vent. The entire book containing such reports was not admissible against the plaintiff’s objection. — Memphis & Charleston R. Co. v. Askew, 90 Ala. 5.

Charge one given at the instance of the defendant assumes the truth of the testimony of the witness Murphee, to the effect that the plaintiff stated to him the age of his daughter Anna, and that the entry in the census report was based upon such statement. This charge was also abstract, as there was no evidence that the ages of plaintiff’s other children were correctly given in the enumerator’s report.

The measure of proof required by the language used in charges three and five is too high. In a civil case, the jury are authorized to find that a controverted fact lias been established, if a preponderance of the evidence reasonably satisfies them of its truth. The expression “an abiding conviction” implies such a degree of certainty as would justify a verdict of guilt in a criminal case.' — Griffith v. The State, 90 Ala. 588. Such certainty is not required in a civil case. It may be said that a fact is left in doubt and uncertainty, if there is any doubt and any uncertainty as to its existence. A jury is not required to be without doubt, and certain of the correctness of their finding, in a civil case. Some degrees of doubt and uncertainty are not incompatible with that reasonable conviction which is all that is required in civil cases.' — Thompson v. L. & N. R'd Co., 91 Ala. 496 ; Birmingham Union Railway Co. v. Hale, 90 Ala. 8 ; Wilkinson v. Searcy, 76 Ala. 176.

Reversed and remanded.  