Edward Douglass White

“ There can be no doubt that the president of a national bank, virtute officil, has not necessarily the power to draw checks against the account kept with another bank by the bank of which he is president. Indeed, the statutes expressly provide that the powers of the president of a national bank may be defined by the board of directors. Rev. St. § 5136. True it is that, by a course of dealing with a particular person, the power of an officer to perform a particular act may be implied when such power is not inconsistent with law. ”

“ On the face of the foregoing facts, it is evident that the alleged criminal acts arising from the two January checks were begun in Massachusetts. The question is: Were such acts there completed, or did the final act, which was essential to effectually absorb the credit of the Exeter bank with the Boston bank, take place in New Hampshire? The relation between the banks was that of debtor and creditor. The checks, having been drawn, collected, and debited in Boston, constituted a concluded transaction, if there was authority to draw them. ”

“ The chief justice said:
'It is not a regular mode of assisting the recollection of a witness to recur to his recollection of his testimony before the grand jury. If it was not true then, it is not true now. If it was true then, it is true now, and can be testified to as a fact. Of what importance is the fact that he had a memorandum to aid him in testifying before the grand jury? To ask what he testified to before the grand jury has no tendency to refresh his memory. The fact of his having testified to it ther is not testimony now. ”

“ I think that question is proper, and not inconsistent with the rule that a party knowing a witness to be infamous ought not to produce him, and must not be allowed to take the chance of his answers, and then bring evidence to contradict him. We do not interfere with that rule. There are treacherous witnesses who will hold out that they can prove facts on one side in a cause, and then, for a bribe or from some other motive, make statements in support of the opposite interest. ”

“ As the order in which evidence shall be produced is within the discretion of the trial court, and as the matter sought to be elicited on the cross-examination for the accused was not offered by him at any subsequent stage of the trial, it is manifest that no prejudicial error was committed by the ruling complained of. ”

“ This statute was, substantially, a legislative recognition of the correctness of the rule laid down in Wright v. Beckett; and the modern English cases have treated the act as applying to the power to contradict and neutralize the testimony of one's own witness when he proves adverse or hostile, and as controlling the examination of the witness himself concerning prior inconsistent statements, as well as the proof thereof by other witnesses. ”

“ There was also testimony tending to show that the Boston and Exeter banks twice a month adjusted their running account by means of statements, which are called in the record 'reconciliation sheet .' When these reconciliation sheets came to the Exeter bank in February, they were accompanied with vouchers, among which were the two canceled checks for $5,000, each drawn in January, and which had been paid and debited, as above stated. The evidence also tended to show that the bank at Exeter owed to the American Loan & Trust Company a note or notes amounting to $10,000. ”

“ It must be understood that the putting into the question a conversation is merely done for the purpose of directing the witness' attention to the matter, and that it is not in, unless the witness remembers the conversation and states it here. ”

“ Colwell, 3 R. I. 132, a witness was allowed to refer to a memorandum made a day or two after a previous trial, when an interval of about eight days had elapsed from the time when the occurrences transpired concerning which the witness gave testimony. In Billingslea v. State, 85 Ala. 323, 5 South. 137, it was held proper to allow a witness to refresh his recollection by resort to the minutes of statements made to a grand jury within a week after the occurrence about which he was being interrogated. In Insurance Co. v. Evans, 15 Md. ”

“ Collier, to which we have already adverted.
Brevity prevents a detailed review of the other cases on this subject previously mentioned in the margin hereof. Suffice it to say that an examination discloses that they all rest upon the mistaken idea which we have pointed out. Indeed, if the principles upon which these cases necessarily rest are pushed to their logical conclusion, they not only, under the guise of an exception, overthrow the general rule as to refreshing memory, but also subvert the elementary principles of judicial evidence. ”

“ It ought not, at furthest, to have gone beyond the simple inquiry whether the party had not been examined before. It should, at any rate, have been so shaped that the witness might have admitted the former statement alluded to without discrediting herself.'
So, also, the opposing counsel urged that the objection was premature, saying (page 882) : 'If counsel had gone on to ask her whether the former statements were not the true ones, it would have been the proper time to object ”

“ The fact that these consequences are the legitimate and necessary outcome of the cases we have reviewed depends not on mere abstract reasoning, but is demonstrated by the case of People v. Kelly (1889) 113 N. Y. 647, 651, 21 N. E. 122. ”

“ Justice Gray, the court said:
'Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contemporaneous with the transaction to which they relate. Nicholls v. Webb, 8 Wheat. ”

“ In considering these assignments, it is at the outset clear that, although the commission of the offense charged may have been begun in Massachusetts, if it was completed in New Hampshire the court had jurisdiction, under Rev. St. ”