
    72 So.2d 457
    STATE v. GRAYSON.
    No. 41229.
    July 3, 1953.
    On Rehearing March 22, 1954.
    Rehearing Denied April 26, 1954.
    
      Rudolph F. Becker, Jr., New Orleans, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden, Dist. Atty., Edward A. Haggerty, Jr., First Asst. Dist. Atty., New Orleans, for appellee.
    
      
      . Tire report in question, made on a printed form suitable for entering figures in the indicated columns, covers the Lake-view Theater for three days, April 6, 7 and 8, 1952, and shows for each day the attendance as clocked by the witness for matinee and evening performances covering net paid admissions, net admission prices, receipts, number of passes, number of walk-ins, and the totals of these figures.
    
   HAMITER, Justice.

In a 'bill of information, filed May 14, 1952 and which negatived prescription, an assistant district attorney for the Parish of Orleans charged that Mrs. Mabel Gray-son, between May 3, 1949 and April 14, 1952, committed a theft of $26,000 in United States currency belonging to Lakeview Theaters, Inc., of the City of New Orleans.

On being tried by a jury of five the accused was found guilty of “theft of a sum of money in excess of $100.00.” Thereafter, the judge sentenced her to imprisonment in the parish prison for one year, and she appealed from the conviction and sentence. Eight perfected bills of exceptions, reserved during the course of the trial, are contained in the transcript of appeal.

The contention of the State is that the accused and a co-worker, who were employed as ticket seller (or cashier) and ticket taker (or doorman), respectively, at the Lakeview Theater in New Orleans, operated together for a period of some two and one-half years in the commission of the offense charged. It asserts that from time to time the ticket taker pocketed whole adult tickets, instead of making the required and customary disposition thereof, and later returned them to the accused for resale and a division of the proceeds between the two.

At the trial that took place in December, 1952, one of the witnesses offered by the State in proof of its assertion was Mrs. Mary E. Shelton, a field auditor of Loews, Inc., the distributor for MGM films. As such representative she makes periodical or occasional attendance audits of the various theaters using MGM films, the purpose being to assure the distributor of proper remuneration which is based on a certain percentage of the proceeds received from tickets sold. While performing her duties notes are kept; and they, along with a written report, are sent to her employer at the conclusion of the audit.

On Sunday afternoon, April 6, 1952, Mrs. Shelton, according to her testimony, wetif to the Lakeview Theater in the City of New Orleans to make an audit, she appearing there a few minutes before the box office opened at 1:15 o’clock. From the cashier then on duty (not the accused) she obtained the serial numbers of the first adult and child tickets to be sold (all tickets are numbered serially and consecutively), and thereafter she proceeded to conduct a checking or counting of the patrons as they entered, using for this purpose two counting clocks — one for adults and the other for children. About forty-five minutes after commencing she took a “reading”, this being a comparison of the numbers on her clocks with those on tickets then being handed to the doorman; and she found it in order or satisfactory. The checking continued, and similar favorable readings were taken at intervals of from forty-five minutes to an hour, until 5:00 o’clock when she left the theater and went to a nearby restaurant for dinner.

On returning at 6:00 o’clock Mrs. Shelton received from the accused herein (who had 'come on duty during her absence) the current ticket serial numbers and resumed the counting. Forty-five minutes later (6:45 o’clock) she took a reading and noticed a discrepancy. She testified that she then found a difference of “plus 49 adults” existing between her clock figure and the serial number on the last adult ticket received by the doorman, this meaning that “there had been 49 more admissions than there were tickets .recorded as being sold.” The counting continued, and at 7:40 o’clock she made another and her last tabulation. When asked by the district attorney what it showed, she stated: “I don’t remember. It seems that there was a plus 79. It had increased, anyway. You see, it had almost doubled.”

Shortly after that answer was given the district attorney showed the witness a copy of a written report (she purportedly made it on April 8, 1952), and he asked her to refer to it and inform the jury as to the final result of her checking on April 6, 1952. She replied that she “finished the day with a plus 77 Sunday evening.” Thereafter, in connection with the witness’ testimony, such report (marked S-3) was offered in evidence by the State. Whereupon, defense counsel announced: “To which offer we object on the grounds the best evidence is the lady’s testimony. She was only shown that for the purpose of refreshing her memory. She has refreshed her memory and testified. The report is only secondary evidence in the case.” . The objection was overruled; the report marked S-3 was admitted; and to the court’s ruling, bill of exceptions No. 1 was reserved by defense counsel.

In the law of evidence, applicable to both civil and criminal cases, are two established general principles of testimonial recollection respecting the use by a witness of writings prepared by him, at or near the time of and relating to the occurrence about which he is asked to testify, one being known as “past recollection recorded” and the other called “present recollection revived.” Wigmore on Evidence, Third Edition, Volume III, Sections 734 et seq.; 58 American Jurisprudence, verbo Witnesses, Sections 579 et seq.; 125 A.L.R. Annotation, page 19; State v. Menard, 110 La. 1098, 35 So. 360; State v. Smith, 144 La. 801, 81 So. 320; Builliard v. New Orleans Terminal Co., 185 La. 924, 171 So. 78.

As shown by most of those authorities the first' principle pertains to a situation where the past occurrence is recorded in the writing and the witness, after reference thereto, has no independent recollection of and cannot recall the relevant facts and circumstances, although he is able to and does testify that he once knew and correctly recorded them. In that case the writing, verified and adopted as a record of past recollection, becomes a present evidentiary statement of the witness which is admissible in evidence and may be handed or shown to the jury by the party offering it.

“Present recollection revived”, on the other hand, is where the writing refreshes or revives the memory respecting the past occurrence and the witness can and does, after consulting it, testify to the pertinent facts and circumstances from an independent recollection. In that case the testimony of the witness, not the writing, constitutes the evidence. On this point the following observation, contained in Wigmore on Evidence (cited supra), Section 763, is appropriate :

“Writing used to Revive Recollection is1 not part of Testimony; yet the Jury may see it, to determine the Propriety of its Use. It follows from the nature of the purpose for which the paper is used (ante, Sec. 758) that it is in no strict sense testimony. In this respect it differs from a record of past recollection, which is adopted by the witness as the embodiment of his testimony and, as thus adopted, becomes his present evidence and is presentable to the jury (ante, Sec. 754). Nevertheless, though the witness’ party may not present it as evidence, the same reason of precaution which allows the opponent to examine it (ante, Sec. 762) allows the opponent to call the jury’s attention to its features, and also allows the jurymen, if they please, to examine it for the same end. In short, the opponent, but not the offering party, has a right to have the jury see it * * *,

“That the offering party has not the right to treat it as evidence, by reading it or showing it or handing it to the jury, is well established. That the opponent may do this, or that the jury may of its own motion demand it, is equally conceded.”

Recognizing the two general principles of evidence above discussed the State takes the position that Mrs. Shelton, the witness, used her report when testifying as “past recollection recorded” and it, therefore, was correctly admitted in evidence. To quote from a supplemental brief, the district attorney states: “The State maintains that the contemporaneous report made by the witness was admissible because it was past recollection recorded in routine check by the witness. * * * It was not a case or situation where the witness was reviving her present recollection * The position is not well founded.

Prior to her being shown such report (S-3) the witness had testified at length from memory regarding her activities at the Lakeview Theater the afternoon and evening of April 6, 1952 (approximately nine months before the trial), she relating in great detail the circumstances surrounding her counting the patrons as they entered, including particularly where she stood at different intervals and the specific time of each of her two readings which disclosed claimed irregularities. For example, she remembered that she made a tabulation at 6:45 o’clock, which revealed “plus 49 adults”, and another about 7:40 o’clock.- As to the latter, it is true, she was not certain of the exact “over plus” shown; it seemed to her that there was a “plus 79”. But she recalled definitely that it had increased — almost doubled — since the 6:45 o’clock reading.

It was only because of her inability to recite the exact “over plus” noted at the 7:40 reading (she remembered the approximate “over plus”) that the report S-3 was shown to her. And on viewing it, along with another report prepared by the accused herein and previously introduced in evidence without objection as S — 1, she was able to testify that she finished the day with a “plus 77.” Incidentally, to ascertain that exact figure it was necessary for the witness to consider both reports together. S-3, insofar as pertinent here, revealed merely the total number of paid admissions as tabulated by Mrs. Shelton, or 1571; whereas, in S-l the accused had reported the total number of tickets sold as being 1494. By subtracting the latter figure from the former, the witness arrived at the difference of 77.

As a reason for admitting S-3 in evidence over defendant’s objection, the trial judge (in his per curiam) states: “The witness whose day to day occupation was a matter of observing and recording serial numbers of tickets at various movie houses in this area and in other areas, could not possibly remember the serial numbers of tickets sold at a particular time at a particular movie house, and was, of course, forced to refresh her memory from her official and original report, made by her, in her own handwriting, and made at the time and on the spot.

******

“It seemed to the trial court that the best evidence rule applied to the official report of the witness rather than to the memory of the witness for such details as serial numbers which were then running in the two hundred thousands.” But the fact is that S-3 listed no serial numbers whatever. Hence, it could not possibly lend assistance to the witness in testifying as to any particular serial number or numhers. It was shown to her, as before pointed out, merely for the purpose of refreshing her memory as to the exact “over plus”, she having remembered only the approximate excess.

We conclude that the document S-3, which aided in reviving the present recollection of the witness, was not legal evidence under the circumstances and should not have been presented to the jury in the State’s behalf. We further conclude that its admission prejudiced the substantial rights of the accused and, thereby, reversible error was committed. Undoubtedly, the written report of the witness, when ■considered by the jury along with the other document admitted in evidence (S — 1), served to emphasize and substantiate her obviously damaging testimony (the credibility of which the jury might otherwise have discounted) to the effect that she ■counted 77 persons attending the Lakeview Theater on April 6, 1952 who did not possess legitimate tickets.

The remaining bills of exceptions, reserved by defendant, need not be considered in view of our announced conclusions. They relate to rulings on objections urged to specific questions which very likely will not be propounded on a new trial.

For the reasons assigned the conviction and sentence appealed from are annulled and set aside and the defendant is granted a new trial.

On Rehearing

FOURNET, Chief Justice.

When this case was originally before us we annulled and set aside the conviction and sentence of the accused on a bill of information charging her with the theft of $26,000 from her former employer, the Lakeview Theater in New Orleans, and granted a new trial, being of the opinion that the lower court had erred in admitting in evidence, over defendant’s objection, a certain document marked Exhibit S-3, identified as a report made and signed by the witness, Mrs. Mary E. Shelton, a field auditor for Loew’s Inc. (distributor for M-G-M films), in the course of her employment of checking attendance and receipts at various theaters where those films are shown, including the Lakeview Theater.

Upon careful reconsideration we are convinced that we erred in our previous ruling. Conceding, without deciding, that the questioned document was inadmissible, it is not every error committed in the lower court which entitles a defendant in a criminal case to a new trial. State v. Cullens, 168 La. 976, 123 So. 645; State v. Saia, 212 La. 868, 33 So.2d 665. In fact, it is specifically provided in the Code of Criminal Procedure that “No judgment shall be set aside, or a new trial granted by any appellate court of this state, in any criminal case, on the .grounds of * * * the improper admission or rejection of evidence, * * * unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.” LSA-R.S. 15:557, formerly Art. 557 of the Code of Criminal Procedure. (Italics ours.)

According to the record, after the witness had testified at length from memory as well as from notes in her possession covering the serial ticket numbers obtained when she took intermittent readings (i. e., noted the serial number of a ticket being surrendered for admission), that at 6:45 p. m. on April 6th the reading did not agree with her clocked figures and showed that 49 more persons had been admitted than there were tickets recorded as being sold, and that at 7:40 p. m. a second reading indicated that the number had increased, had almost doubled, though she did not remember the exact number, she was handed the questioned document, which she identified as her report covering April 6th, 7th and 8th, and was then permitted to testify, without objection, what this document showed, i. e., that whereas the figures thereon covering April 7th and 8th were in order (i. e., the number of tickets sold was in conformity with the persons present in the theater), the figures for April 6th showed 77 more people in the theater than was indicated by the serial numbers of tickets reportedly sold by the accused, as shown on the latter’s report prepared for the same date and marked Exhibit S-l. However, when the document was offered in evidence, its admission was objected to on the ground that the witness’ testimony was the best evidence and the report was but secondary evidence in the case.

The defendant has failed to point out any violation of her constitutional or statutory rights by the admission of this document, and, in fact, makes no such claim — • the argument of her counsel being simply that the rights of the accused have been prejudiced by its admission. Our examination of the record fully convinces us that no prejudicial error occurred through its reception in evidence, nor did a miscarriage of justice result therefrom. There is nothing in the document, either in figures or statement, that could possibly incriminate the accused; it is simply a report covering the witness’ work over a period of three days, and since the witness had already been allowed to testify, without objection, what it purportedly showed, we fail to appreciate in what respect its admission could possibly prejudice the defendant’s cause.

Bill of Exception No. 2 was reserved when State witness Mrs. Elizabeth Ritter was allowed to answer the question, over defendant’s objection as being hearsay, “Did you have a' conversation with your daughter about $2.50?” It appears that the witness’ daughter, Doris Ritter (who, at the time of the theft, was employed at the Lakeview Theater in charge of the candy counter in the lobby), had testified in this case that on one occasion, which she identified, she was given $2.50 by the accused, who told Doris, in substance, that it was all right for her to keep the money since it came from tickets which had been resold; but that upon reporting the incident to her mother the latter had instructed Doris to return the money to the accused. We find no merit in this bill for, as pointed out by the trial judge in his Per Curiam, the testimony was admitted, not for the purpose of establishing the truth of the statement, but as proof of whether such statement had been made by the daughter to the witness and to corroborate the testimony of the daughter, which had been challenged.

The next four bills, Nos. 3, 4, 5 and 6, were all reserved while the State witness, Dan W. Bonin (19 years of age, and an accomplice in the scheme) was on the stand. Bill No. 3 was reserved when the witness, having described in detail the practice of saving tickets for resale but being unable to give the exact number withheld when the system was begun, was allowed, over defendant’s objection, to give an approximate number. The next bill was reserved when he was allowed to answer a question as to whether, in the course of time, the tickets held out increased or decreased over the original number. The fifth bill was reserved when Bonin was permitted to consult with his attorney, who had been present in the courtroom throughout the trial; and the sixth was reserved when the witness, having said “What do you mean?” in answer to the question “Did anyone else ask you for refunds besides Mrs. Grayson, or ask you for refunds for Mrs. Grayson?”, was permitted, over defendant’s objection, to answer the District Attorney’s next question: “I mean the candy girls or popcorn girls?”

It is the contention of counsel .for. the defendant, in connection with Bill No. 3, that since, in the event of the jury convict-ing the defendant, it was their duty to fix the amount of the theft, to 'allow the witness to state an approximate number of tickets was unfair; he claims that the next objectionable question, the basis of Bill No. 4, added to the injury, since it was in leading form, suggestive of the answer; and that by the question objected to in Bill No. 6, the District Attorney was not only suggesting an answer to the witness but was in fact telling him how he wanted the question answered. In connection with Bill No. 5, the defendant contends that the District Attorney suggested that the witness consult with his attorney; that the witness’ constitutional rights as to self-incrimination had neither been reserved by the witness himself nor by his attorney on the witness’ behalf, and moreover, that the attorney had been in the courtroom during the entire trial even though all witnesses had been excluded under the rule.

We find no error in the rulings of the trial judge in these four instances. As pointed out by the judge in his Per 'Curiam to the third bill, there was ample evidence in the case to establish with certainty that the total amount of money stolen by appellant and the witness Bonin was in excess of $100, which fixed the grade of theft in this case, and in as much as the witness kept no records, he could only estimate the number of tickets held out by him, to be resold by the accused; that the number varied from night to night, according to the business volume, which was larger on Sundays than on week days and also varied according to the drawing power of the picture; that the best period was during the three-day run of the picture “Neptune’s Daughter,” from which Bonin and the accused divided $300. The witness had also testified 'that from the money stolen he had bought a sailboat for $500, an automobile for $150 and another for $50, and had loaned his brother $100, spent money on dates, and estimated the total amount of his share of the continuous theft was $5,000.

The question objected to and forming the basis of Bill No. 4 is not necessarily a leading question, while the one relied on in Bill No. 6 was obviously permissible in view of the witness’ misunderstanding of the prior question. As was aptly pointed out by the trial judge, all such questions are not necessarily objectionable, some discretion being reposed in the trial judge (see LSA-R.S. 15 :373 and the jurisprudence thereunder) ; and his ruling will not be disturbed except in clear cases of abuse resulting in prejudice to the defendant’s cause.

As to Bill of Exception No. 5, it is pertinent to mention that the witness was separately charged in the Criminal District Court with the theft of $13,000, and a civil suit was also pending against him. When the following question was asked him: “Over that entire period of time, after having your memory refreshed [from a written statement previously made by the witness to the police], and after having explained to the jury about the purchase of a sailboat and two automobiles, approximately how much money did you receive from Mrs. Grayson?” the witness addressed himself to the Court and asked: “Do I have to answer that question?” The District Attorney thereupon asked the 'Court if he might permit the witness to consult with his attorney, and the Court asked the witness if he wanted 'to change the answer he had already made, to which the witness replied: “I would like to consult with my attorney.”

The matters complained of in this bill are largely within the sound discretion of the trial judge, whose ruling will not be disturbed unless injury is shown.

As evidenced by the Per 'Curiam to this bill, the trial judge’s appreciation of what took place was that the District Attorney “was acting in good faith and with an honest purpose to do the fair thing,” but had not suggested to the witness, as contended by counsel for the defense, “that he had better consult with his attorney.” The judge pointed out further that “Everything that transpired in this regard transpired in the presence of the jury so that in passing on the credibility of this witness the jury knew that the witness had consulted with his attorney before answering the question.”

The next bill, No. 7, has been abandoned; and Bill No. 8, reserved to the Court’s denial-of a request for a new trial because the verdict was contrary to the law and the evidence, is only a recapitulation of the bills reserved to the rulings discussed above.

For the reasons assigned, the conviction and sentence are affirmed.

HAMITER, J., dissents with written reasons.

HAMITER, Justice

(dissenting).

With reference to the clearly inadmissible document S-3 the majority opinion on rehearing concludes: “ * * * Our examination of the record fully convinces us that no prejudicial error occurred through its reception in evidence, nor did a miscarriage of justice result therefrom. There is nothing in the document, either in figures or statement, that could possibly incriminate the accused; it is simply a report covering the witness’ work over a period of three days, and since the witness had already been allowed to testify, without objection, what it purportedly showed, we fail to appreciate in what respect its admission could possibly prejudice the defendant’s cause.”

Manifestly, the document was incriminating, for it, taken in connection with exhibit S-l previously introduced into evidence, disclosed an over-plus in admissions of 77 persons.

Furthermore, the conclusion announced by the majority, seemingly predicated on an erroneous assumption that the testimony of State witness Mrs. Shelton was objectionable, and being so went to the jury without objection, completely overlooks the purpose of and reason for the universally accepted rule of evidence known as “present recollection revived”. This rule permits a witness who is testifying from an independent recollection concerning pertinent facts and circumstances of a past occurrence to refer to a writing made by him originally, the sole purpose thereof being to refresh his memory. But it prohibits the introduction of the writing, because in such case only the testimony constitutes the evidence; whereas, the writing, if permitted to be introduced, would serve to improperly corroborate and strengthen such evidence already before the jury or court.

If the testimony of Mrs. Shelton had been inadmissible, and being so had been allowed to go to the jury without any protest, I would agree with the majority conclusion unhesitatingly. In such event the document S-3 could not have prejudiced the defendant, because the jury, through the improper and unobjected to testimony of the witness, had already received the information disclosed by it. But here the testimony of Mrs.'Shelton was admissible; the defendant had no grounds whatever for objecting to it. She was testifying from independent recollection to relevant facts and circumstances within her knowledge, referring to her report, as she had the right to do, merely for the purpose of refreshing her memory.

Now, the effect of the improper admis-' sion of document S-3 was to unduly corroborate the testimony of that witness. In this connection, such self-serving declaration might well have contained the notation: “This report was prepared'in the handwriting of Mrs. Shelton at the time of her inspection and it, considered along with document S-l, confirms and renders unimpeachable her testimony that there was an over-plus in admissions of 77 persons.” Incidentally, this specific over-plus was disclosed only by Mrs. Shelton, the defendant having shown that none occurred; and, thus, a clear conflict existed between the only two witnesses respecting such important point. This being true it is reasonable and proper to assume that the j ury, in finding the defendant guilty, considered the inadmissible document S-3 to be in confirmation of Mrs. Shelton’s testimony and to justify complete acceptance thereof. The report, in other words, evidently served to shift the otherwise balanced weight of evidence.

There can be no doubt that the only purpose in offering S-3 was to corroborate Mrs. Shelton’s testimony. In the. State’s brief on rehearing the following appears: “We believe it is agreed that the jury has a right to believe or to disbelieve any witness accordingly as that witness impresses them as to the truth or falsity, or reliability or unreliability of her statements.

“Merely because a witness testifies to a fact does not mean that the jury will accept or must accept the testimony of the witness and regard the fact as proven.

“In this case, therefore, wherein appellant denied and contested every material fact testified to by every witness for the State and sought with all the means and ingenuity at her command to discredit those witnesses and particularly the critical witness Mrs.' Shelton, the State not only had the tight hut was under a dztiy to corroborate this zvitness by any legal evidence that would corroborate her.

* * * % * *

“Appellant, in her testimony, sought to contradict and to ‘assail’ the ‘credibility’ of the witness Mrs. Shelton, giving the State, if not at the time of the direct examination of Mrs. Shelton at least some time before the taking of testimony was concluded, the right to introduce evidence to corroborate Mrs. Shelton.

“Since the document S-3 is psychologically the best evidence of the climatic fact to which Mrs. Shelton testified, namely the ‘Plus 77’, and since the authenticity of S-3 as a document made by Mrs. Shelton at the conclusion of her check of this movie theater was unassailable, S-3 was potently corroborative and we respectfully submit under the law above quoted, was admissible in evidence as corroborative evidence. (Always bearing in mind that every detail of S-3 was personal knowledge and immediate observation of Mrs. Shelton, and highly material to the guilt of appellant.)” These quoted extracts alone should be adequate proof that the substantial rights of the accused were prejudiced by the improper admission. (Italics mine.)

If the announced conclusion of the majority herein is allowed to stand, it can be correctly said that this court now rejects and will no longer follow the heretofore recognized and applied doctrine that a memorandum used by a witness to refresh his memory is itself inadmissible in evidence. In every case hereafter in which the “present recollection revived” rule is invoked the witness will have testified to the relevant information contained in his writing, using it to refresh his memory as is his right; and, as a result of the unobjectionable testimony, the memorandum becomes non-prejudicial and, therefore, admissible.

For the above reasons, as well as those which I assigned on the original hearing, I respectfully dissent. 
      
      . Her exact answer was: “I don’t remember. It seems that there was a plus 79. It had increased, anyway. You see, it had almost doubled.”
     
      
      . Exhibit S-l, admitted in evidence without objection, is the Daily Box Office Report, signed by the accused, covering April 6, 1952; figures were entered in appropriate columns on the printed form showing (in addition to other data) the serial ticket number (adult and child) when the box office opened, at hourly intervals thereafter, and when the box office closed, as well as the total number of tickets sold and total receipts.
     