State v. Perkins

• Decision Date: 09 March 1909
• Citation: 143 Iowa 55,120 N.W. 62
• Parties: STATE v. PERKINS.
• Court: Iowa Supreme Court

143 Iowa 55

120 N.W. 62

STATE

v.PERKINS.^d1

Supreme Court of Iowa.

March 9, 1909.

Appeal from District Court, Bremer County; J. F. Clyde, Judge.

The defendant was convicted of the crime of adultery, and appeals. Affirmed.C. G. Burling and Sager & Sweet, for appellant.

H. W. Byers, Atty. Gen., and Chas. W. Lyon, Asst. Atty. Gen., for the State.

SHERWIN, J.

Mary Perkins, the defendant's wife, was a witness before the grand jury, where she testified that she was his wife, and that she had made the complaint upon which the prosecution was based. She was also a witness for the state on the trial of the case, and, after she had testified substantially as she did before the grand jury, she was asked by the state whether her husband had said anything to her about staying with Mrs. Goodin at the Mitchell boarding house. Over the defendant's objection, she answered: “Why, he said he knew he hadn't ought to stayed with her that night down there, but he said he didn't care what he did. * * * Said he stayed at Mitchell's boarding house.” There was no error in receiving the answer. We have repeatedly held that, when a witness has testified before the grand jury and minutes of his testimony are properly presented and filed, he may on the trial be examined as to any and all matters within his knowledge bearing upon the defendant's guilt or innocence. State v. Bowers, 17 Iowa, 46;State v. Ostrander, 18 Iowa, 435;State v. McCoy, 20 Iowa, 262;State v. Wrand, 108 Iowa, 73, 78 N. W. 788;State v. Seery, 129 Iowa, 259, 105 N. W. 511.

After the jury had deliberated on the case several hours, it returned to the courtroom, and asked that the entire testimony of one witness and certain parts of the testimony of other witnesses be read from the shorthand notes of the trial. Whereupon the court, with counsel all present, directed the reporter to read the desired testimony, and it was read, and thereafter the defendant objected thereto. There was no error in the proceeding. Section 245a, Code Supp. 1907, provides that the original shorthand notes of the evidence or any part thereof taken upon the trial of any cause or proceeding in any court of record of this state by the shorthand reporter of such court “shall be admissible in evidence on any retrial of the case or proceeding in which the same were taken.” Code, § 3675, provides that the proceedings of trials, either at law or in equity, shall be reported upon requests, and that, when said report is properly certified by the trial judge and reporter and filed, it shall be a part of the record in the action and constitute a complete bill of exception. Section 4122 of the Code provides that a translation of the original shorthand notes, properly certified, shall constitute a part of the record, and shall be sent to this court when a transcript of the evidence is required. And section 5371 of the Code provides that “all the provisions relating to mode and manner of the trial of civil actions, report thereof, translation of the shorthand reporter's notes, the making such report and translation a part of the record, and in all other respects, apply to the trial of criminal actions.” The foregoing provisions of the statutes are referred to for the purpose of showing the faith and credit which are to be given to the shorthand reporter's notes by legislative enactments. It is true that in some instances the notes may not be used until they have been certified to be correct, but notwithstanding this the general trend of the enactments is to recognize the correctness of the notes of the shorthand reporter, and aside from this lawyers and judges of experience know that such notes contain, with few exceptions, the testimony of witnesses as it was given, and are thoroughly reliable. Indeed, no question is here made as to the correctness of the testimony read to the jury. The contention of the appellant is that the testimony was givenundue prominence by such reading, and that the jurors should have been compelled to depend upon their individual recollection of it. The testimony is reported so that it may become a part of the permanent record, and thus assist in the administration of justice in both civil and criminal cases. The lawyers depend upon the report in the future progress of the case, and a translation thereof furnishes this court its only means of determining disputed questions as to the record. In argument to the jury, attorneys may refresh their recollections by reading from the notes. McConkie v. Babcock, 101 Iowa, 126, 70 N. W. 103. And we know of no sound reason why the memories of jurors may not be stimulated in the same way. It will certainly promote justice in all cases if the triers of fact understand and remember the evidence upon which the case must rest and be determined, and, where there is an honest doubt in the mind of a juror as to what was said by a witness, it cannot be prejudicial to any one to have such doubt removed by a rehearing of such testimony. And this is particularly true in view of our statutes on the subject. We have been cited to no case directly in point, but in Herring v. State, 1 Iowa, 205, there was a holding analogous to our conclusion here. Fleming v. Shenandoah, 67 Iowa, 505, 25 N. W. 752, 56 Am. Rep. 354, was a case where the reporter went into the jury room, and, in the absence of court and counsel and without the knowledge of the defendant or counsel, read from his notes made at the trial such portions of the...