Sekularac v. State, 25798.

• Decision Date: 07 June 1933
• Docket Number: No. 25798.,25798.
• Parties: SEKULARAC v. STATE.
• Court: Indiana Supreme Court

205 Ind. 98

185 N.E. 898

SEKULARAC

v.STATE.

No. 25798.

Supreme Court of Indiana.

June 7, 1933.

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Mike Sekularac was convicted of assault and battery with intent to kill, and he appeals.

Judgment affirmed.

W. O. Thomas, of Gary, Wm. J. McAleer, of Hammond, and Hyman M. Cohen, of East Chicago, for appellant.

James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., for the State.

HUGHES, Judge.

This is an appeal from a judgment of the criminal court of Lake county, entered on the 17th day of May, 1929, on a verdict of the jury, that appellant was guilty of assault and battery with intent to kill, as charged, and was sentenced to the Indiana State Prison for a period of not less than one nor more than ten years.

The assignment of error is that the court erred in overruling appellant's motion for a new trial. There were three reasons assigned for a new trial, but the appellant has waived the first and second specifications, and relies upon the third, which is as follows: “Error of law occurring at the trial in this, to wit: That the Court permitted, over the objection of the defendant the typewritten copy of the evidence of one Anna Jenkins, to be read in evidence to the jury. This was purported to be a copy of the evidence of the said Anna Jenkins at the preliminary hearing of this cause in the City Court of East Chicago, Lake County, Indiana. This evidence was introduced in the trial of this cause at the time that Jennie Wiley, was a witness in said cause. It was shown in the trial of this cause that the said Jennie Wiley was not a regular court reporter, and had not been sworn to take down the evidence in the former hearing, but that she, the said Jennie Wiley, had merely taken down the evidence at the solicitation of one of the attorneys in the cause.”

Jennie Wiley was called as a witness, and examined. She testified that she was a stenographer, and was able to take dictation, and read shorthand; that she was present when the preliminary hearing in East Chicago city court on October 23, 1928, of the State of Indiana v. Mike Sekularac was had; that she took down the evidence in shorthand offered by both the state and defendant; that the defendant was present, and represented by counsel; that since the taking of the evidence she had transcribed the notes, and particularly the testimony of Anna Jenkins.

State's Exhibit 2 consisted of the evidence of Anna Jenkins transcribed by the witness Jennie Wiley. The state offered Exhibit 2 in evidence, and appellant by his attorney objected to its admission as follows: “I am objecting to the introduction of this evidence for the reason that the witness testifying, and the person that took down this evidence was not sworn to take down the evidence, and was not an official court reporter, and that she was not qualified to report the evidence in this case at the time she took down the evidence.” The objection was overruled, and Exhibit 2 was admitted in evidence.

The sole question presented in this case is based upon the foregoing objection. It is seen from the objection, that no objection was made on the ground that there was not a sufficient effort shown to secure the attendance of Anna Jenkins at the trial, and that her testimony could not be procured. This was the...