Opinion
Appeal from the District Court of the Seventh Judicial District, Marin County.
COUNSEL:
J. R. McConnell, (Attorney General,) for Appellants.
John Satterlee, for Respondent.
JUDGES: Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., and Bryan, J., concurred.
OPINION
MURRAY, Judge
This was an information in the nature of a quo warranto filed by the Attorney General against David Clingan, who claimed to exercise the duties of Sheriff of Marin County.
On the trial of the cause in the Court below, the Attorney General offered as a witness one James T. Stocker, who claimed the office by virtue of an election, and who testified that his certificate of election was lost or destroyed. Upon this, the testimony of the County Judge, who deposed that he had seen said certificate, was offered to prove its contents; which testimony was excluded. The evidence of the County Clerk was also offered, who swore that there was not in his office, or so far as he knew, in the county, any record or written evidence of the persons who were elected to the different County Offices, etc.; upon which the plaintiff asked the witness if he knew who was elected, and also, if he knew who was generally reputed by the people of said county to have been elected Sheriff at said election; which questions were objected to by the defendant, and the objection was sustained by the Court.
It is said that the last two questions were improper, because the Clerk should have been first asked if he had searched for the written evidences of Stocker's election.
In laying the predicate for the admission of secondary evidence, to prove the contents of written documents, it is usual to ask the witness if he has made diligent search for them, in the places where they are generally to be found; but in the present case, the positive testimony that the documents or records were not in the office, would raise the legal presumption that the witness had searched for them, unless it should be made to appear from his testimony that such was not the fact.
The oath is stronger than the practice or the law requires; for instead of swearing that he has made diligent search, a fact from which the non-existence of the paper does not absolutely arise, he swears that the paper is not there; and how could he testify to this, unless he had made more than a diligent search?
The refusal to admit the testimony of the County Judge, to show the contents of the certificate of election, was also error. The defendant had supplied the evidence by his own witness, that Stocker was acting as Sheriff of Marin County, which circumstance, together with the certificate of election, would raise the presumption that he had executed his bond and taken the oath of office; at least it was not necessary to prove this, until he had established the certificate, on the back of which, the oath of office is required to be indorsed, and the natural order of proof would seem to be, 1st, The certificate; 2d, The oath; 3d, The bond.
Several objections are taken by the respondent to the mode in which this appeal is brought before us, all of which have been settled by the practice of this Court. The objection, that there is no undertaking filed, cannot apply in a case like the present. No right of the defendant is infringed, and a State cannot be denied a hearing in her own Courts because no bond has been filed for costs; besides, a fund has been provided by law for such cases, so that the respondent has ample indemnity.
Hull v. Superior Ct. , 63 Cal. 176.
Judgment reversed, and new trial ordered.