Bass v. The State

• Citation: 36 N.E. 124,136 Ind. 165
• Decision Date: 10 January 1894
• Docket Number: 16,967
• Parties: Bass v. The State
• Court: Supreme Court of Indiana

36 N.E. 124

136 Ind. 165

Bass v. The State

No. 16,967

Supreme Court of Indiana

January 10, 1894

From the Lawrence Circuit Court.

Judgment affirmed.

M. F Dunn, for appellant.

A. G Smith, Attorney-General, and S. B. Lowe, Prosecuting Attorney, for State.

OPINION

Coffey, J.

At the September term, 1891, of the Lawrence Circuit Court, the grand jury of that county returned an indictment against the appellant, Curtis Bass, charging him with an assault and battery upon one William H. Tow, with the intent to commit the crime of murder.

A trial of the cause by jury resulted in a verdict finding the appellant guilty as charged, upon which verdict the court over a motion for a new trial, rendered judgment.

To reverse the judgment thus rendered, this appeal is prosecuted.

The indictment charges that "Curt. Bass, late of said county, on the 21st day of August, A. D. 1891, at said county and State aforesaid, did then and there feloniously, purposely and with premeditated malice, and in a rude, insolent, and angry manner, touch, bruise, lacerate and wound the body and person of William H. Tow, by then and there feloniously, purposely and with premeditated malice shooting off and discharging at and against the said Tow a certain shotgun then and there loaded with gunpowder and leaden shot and slugs, with the intent then and there and thereby him, the said Tow, feloniously, purposely and with premeditated malice, to kill and murder."

This, we think, is a good indictment for assault and battery with intent to commit the crime of murder in the first degree, and for this reason the circuit court did not err in overruling the appellant's motion in arrest of judgment, based upon the insufficiency of the indictment.

The evidence tends to support the verdict of the jury, and for this reason we are not at liberty to disturb it on the claim made by the appellant that his motion for a new trial should have been sustained for want of evidence to support the verdict.

This case was tried twice in the Lawrence Circuit Court, the jury having failed to agree upon a verdict at the first trial. At the first trial, D. O. Spencer acted as the official reporter, and took down, in shorthand, the evidence of the injured party, William H. Tow. Subsequently, with the assistance of his daughter, Mr. Spencer made a typewritten transcript of this evidence, compared it with his shorthand notes, and was able to, and did, testify that the typewritten transcript was correct. Between the dates of the first and second trials of the cause, Tow departed this life, and upon proof of that fact the circuit court permitted Spencer to read to the jury, from the typewritten transcript, certain portions of the evidence of Tow on the former trial of the cause, to which action and ruling of the court the appellant excepted.

Numerous objections to this ruling are ably urged in this court by the appellant's learned counsel.

It is contended:

First. That the witness can only use the notes made at the former trial of the cause for the purpose of refreshing his memory, and that after his memory is thus refreshed he must be able to state from his recollection what the deceased witness testified on the former trial.

Second. That the type-written transcript, not being a paper prepared at the time of the former trial, the witness had no right to refer to it for the purpose of refreshing his recollection.

Third. That the whole testimony of the deceased witness should have been read to the jury, if any was admissible, and that it was error to permit a part only to be read.

Fourth. That the fact that a former trial of the cause had taken place, should have been proved by the record before the testimony of the deceased witness was admissible.

Mr. Wharton, in his work on Criminal Evidence (9th ed.), section 227, says: "To the rule excluding hearsay the first exception we have to notice is the following: What a deceased witness testified to on a former procedure against the same defendant, for the same offense as that under trial, or for an offense substantially the same, may be proved by witnesses who heard the testimony of the witness. * * * What a witness, since dead, has sworn upon a trial between the same parties may be given in evidence, either from the judge's notes, or from notes that have been taken by any other person who will swear to their accuracy; or the former evidence may be proved by any person who will swear from his memory to its having been given."

While there is much authority for appellant's contention, the weight of authority does not, in our opinion, sustain the appellant in his position that notes of the evidence taken at the trial of a cause can only be used by a witness for the purpose of refreshing his recollection. The great weight of authority is, we think, that where the testimony of a deceased witness has been taken in writing, or where notes of the evidence have been taken by the judge or any one else who can testify to their correctness, or where the evidence has been taken by an official shorthand reporter, such evidence or notes may be read in evidence on a subsequent trial between the same parties. Marler v. State, 67 Ala. 55, 42 Am. Rep. 95; Reynold's Stephens on Evidence, 181; Insurance Co. v. Weide, 76 U.S. 677, 9 Wall. 677, 19 L.Ed. 810; Ruch v. Rock Island, 97 U.S. 693, 24 L.Ed. 1101; Halsey v. Sinsebaugh, 15 N.Y. 485.

In the case of Sage v. State, 127 Ind. 15, 26 N.E. 667, it was said by this court: "No error was committed in permitting the official stenographer to read from his report of the testimony of a witness given on a former trial, who had since died."

It was further said in that case that there is much reason for a distinction between an official stenographer, when called as a witness in a case like this, and an ordinary witness. We must know, as a matter of common knowledge that stenography is not generally taught in our common schools, and that...