The second question involved, as correctly stated in the brief for plaintiff in error, is as follows:

"Is a telephone ticket, containing the alleged names of the maker and receiver of a call, made by a telephone operator at the time a telephone call was placed, admissible in evidence to prove the identity of the maker and receiver of said call, the operator knowing neither of said parties and being unable to identify their voices?" *Page 330

As I see it, this question should be answered in the negative. Such telephone ticket, made under the circumstances stated, is not per se proof of the identity of the maker or receiver of the call. But in this case the telephone tickets were properly admissible as evidence tending to prove that at the time shown thereon certain telephone calls were made between certain originating and receiving points, purporting to have been made by and to the names given to the operator and written on the tickets at the time. There was other evidence tending to prove the identity of the makers and receivers of these calls. The tickets, supported by the testimony of the operators, were certainly admissible in evidence, but in and of themselves they did not prove the identity of the parties making the calls. It would be very easy for a person making a telephone call to tell an operator, who did not know him or his voice, that he was another party, and if such a statement when placed on a ticket by a telephone operator could be received as proof of the identity of the person making the call, serious injustice might frequently be done to entirely innocent parties. Yet it cannot be denied that such evidence is sometimes of very high value and significance as corroborative or circumstantial evidence as the case may be. This was strikingly illustrated in the case against Lieutenant Becker which was tried in New York City some twenty or more years ago.

It appears therefore that the trial court might well have given the charge requested by plaintiff in error to the effect that the telephone tickets were not to be considered as showing that the persons whose names appeared therein were the persons who talked, but as evidence that the Telephone Company handled such calls at the time specified on the tickets. The court amended this charge, and gave it as amended. As so amended the charge was substantially correct, *Page 331 but subject to being construed by the jury to mean that the tickets might in and of themselves be considered as some evidence of the identity of the makers and receivers of the calls.

The most serious question in the case, as to the conviction under the second count, was whether the defendant Royal did "counsel, hire and otherwise procure" Bullock to commit the forgery. The State relied upon the testimony of Bullock to prove this. His testimony on this point was probably sufficient to justify submitting the question to the jury for their determination, but it was not very strong nor convincing and indicates that the scheme of raising money by the forgery of Western Union drafts originated with Bullock himself.

Then there is the matter of the court's permitting the State's most important witnesses to be called back and to reiterate in rebuttal the same testimony already given on their direct examination.

On the whole I think this man should be given another trial.