State v. Rosenberg

• Decision Date: 14 October 1914
• Citation: 88 Vt. 223,92 A. 145
• Parties: STATE v. ROSENBERG.
• Court: Vermont Supreme Court

92 A. 145

88 Vt. 223

STATE

v. ROSENBERG.

Supreme Court of Vermont. Chittenden.

Oct. 14, 1914.

Exceptions from Chittenden County Court; Eleazer L. Waterman, Judge.

Harry H. Rosenberg was convicted of perjury, and he brings exceptions. Affirmed.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

Theodore E. Hopkins, State's Atty., and Henry B. Shaw, both of Burlington, for the State.

V. A. Bullard, of Burlington, for respondent.

TAYLOR, J. The respondent was convicted of the crime of perjury at the March term, 1913, of Chittenden county court. The perjury alleged related to testimony given by him in the trial of one Louis Alpert, who was prosecuted at a special term of said court in January, 1913, for the crime of receiving stolen goods. In the Alpert trial the witnesses, both for the state and the respondent, were ordered to be excluded from the courtroom. Rosenberg was called as a witness by Alpert, whereupon the state objected to his testifying, on the ground that he had been in the courtroom during the taking of a part of the testimony for the state, in violation of the exclusion order. Before testifying the usual witness oath was administered to him by the clerk. The court immediately proceeded to hear the testimony of Rosenberg and other witnesses bearing upon the questions raised by the objection. A part of the examination was in the presence of the jury and a part after the jury were excused for the day. In the course of this examination the respondent gave the testimony relied upon as a basis of the charge of perjury, which was to the effect that he had not been in the courtroom after receiving notice of the order until called to the stand to testify. The record does not disclose the result of this inquiry further than it appears from the transcript, which is referred to and made controlling, that Rosenberg was later permitted to testify.

John H. Mimms was the official stenographic reporter at the trial of State v. Alpert. At the time of the trial of the instant case the transcript of the Alpert trial was not completed. Col. Mimms was improved as a witness and, against the objection of the respondent, was permitted to read from his shorthand minutes concerning the order excluding witnesses. The ground of the objection relied upon was that the certified transcript of the proceedings in the Alpert trial was the best evidence by virtue of P. S. 1374, making such transcript evidence in any action, civil or criminal, if relevant thereto. The statute giving evidentiary value to the transcript does not affect the force of other evidence of the fact, nor render that incompetent which, in the absence of the statute, would be competent. See 2 Wig. on Ev. § 1186, and cases cited. It is an enabling rather than a restricting statute. The order of the court excluding the witnesses in the Alpert trial was material, and could properly be shown by the reporter, whose duty it was to take it down. It was held in State v. Camley, 67 Vt. 322, 31 Atl. 840, that it was not error to permit the reporter to read material testimony from his minutes; but the objection in this case did not go so far as to raise that question. The other grounds of objection are not briefed, and so are not considered. The exception cannot be sustained.

Against the objection that it was immaterial, the state was permitted to show by the same witness that respondent's counsel had not requested him to transcribe his stenographic notes relating to the objection to the respondent's competency as a witness in the Alpert Case. The statute requires the reporter to furnish a certified transcript of the proceedings to any party in interest. P. S. 1373. It is apparent from an examination of the record that the court permitted this inquiry because of the repeated assertion by respondent's counsel that they had no means of knowing what the reporter's notes would show. If immaterial, we think the testimony was too colorless to be prejudicial. It was argued that it was the duty of the state to produce the evidence against the respondent, that the fact that respondent's counsel could have obtained the transcript did not relieve the state from the obligation to produce the evidence upon which they relied, and that the testimony was prejudicial because the inference to be drawn by the jury was that respondent should hot claim that it should be produced by the state. The argument proceeds upon the theory that the transcript is the best evidence and that the state was seeking to excuse itself from offering the transcript because the respondent had an equal opportunity to procure it. So far as appears, the only use made of the testimony was to meet the assertion that respondent had no means of knowing what the stenographic notes contained. Reversible error does not appear.

In the cross-examination of Col. Mimms the fact was developed that his minutes showed that when the respondent was first called to the stand in the Alpert trial the oath was administered; that Immediately thereafter the objection to his competency as a witness was interposed, following which the alleged perjured testimony was given. The respondent claimed that the oath taken related to his testimony in the Alpert Case, and not to the inquiry as to his having violated the order of exclusion. Certain of the state's evidence tended to show that when the respondent was called the state's attorney raised the objection, that some discussion followed, and that, pending the objection, the court directed the oath to be administered. Later Col. Mimms was recalled and asked concerning his practice in making a record of objections that are made at a trial, and what takes place in regard to a witness before he is sworn. Against the objection that it is incompetent and immaterial, witness answered: "I do not make a record of any informal objections before the witness is sworn." In the circumstances the evidence was material. Unexplained, the reporter's notes contradicted the other testimony. Their weight as evidence of the sequence of events leading up to the giving of the testimony in question would be affected by the practice of the reporter in omitting to record informal objections, which may have been made at the bench. The cases cited by the respondent support the proposition that the fact that a person has the habit of doing a particular thing at a particular time has no tendency to prove that he did not do some other thing at the time in question, which is quite unlike the question presented here. The reporter is employed to make a verbatim report of the proceedings. The respondent was relying upon the reporter's minutes to support his claim that he was sworn as a witness before the objection as to his competency was made. If unexplained, the reporter's minutes of the proceedings would be entitled to great weight in determining the disputed question. In the light of the answer excepted to, they lost much of their force. In view of the practice shown, it was less probable that the stenographic notes were a verbatim report of the proceedings. See Hine v. Pomeroy et al., 39 Vt. 211, 219; State v. Shaw, 58 N. H. 73; 1 Wig. on Ev. §§ 92, 93, and notes.

The respondent contends that he has been wrongfully convicted because the oath administered to him did not relate to the examination as to his competency as a witness, and relies upon exceptions numbered in the bill, 3, 18, and 21 as raising this question. The third exception relates to the exclusion of an offer to show what was said by the court in the Alpert Case—

"for the purpose of showing that the court itself, as a court, took the matter into consideration, and that it was a hearing before the court, and not for the jury, to meet the claim of the state's attorney that * * * the oath administered was administered for the purpose of this examination, and also for the purpose of showing what was determined by the court itself at the time of considering the question whether or not Rosenberg was in the courtroom."

The offer does not disclose the statement by the court sought to be introduced. Standing as it does, the record presents no question for review. The necessity for an offer in such circumstances is too well understood to require the citation of authorities. The twenty-first exception relates to a portion of the charge of the court in which the crime of perjury is defined. Respondent's counsel have not attempted to point out wherein the charge in that regard was not correctly given. The question briefed was not raised by the exception.

The eighteenth exception is to the refusal of the court to direct a verdict for the respondent. Ten grounds of the motion for a directed verdict were specified. In his brief the respondent refers to the second and third grounds, which were: (2) The evidence does not tend to establish the elements of the crime of perjury with which the respondent is charged; (3) from the undisputed evidence and conceded facts it appears that the respondent was not under a legal or judicial oath at the time of giving the alleged false testimony. The question briefed is treated as raised under the latter ground of the motion. As to the former there is no claim now made that any other element of the crime, aside from the oath, was lacking in the evidence. The oath administered to the respondent was, in form, the usual witness oath. The state's evidence tended to show that it was administered after the objection was interposed and with reference to the matter then before the court, while the respondent's evidence tended to show that it was administered when he was first called to the stand and before the objection was made. The respondent's argument is based upon the assumption that the oath was "an oath in chief," and it is urged that it had no application to his examination upon the voir dire. We have no occasion to decide whether an oath administered to the witness generally is sufficient to afford...