Todd v. State

• Decision Date: 01 June 1915
• Docket Number: 795
• Citation: 69 So. 325,13 Ala.App. 301
• Parties: TODD v. STATE.
• Court: Alabama Court of Appeals

69 So. 325

13 Ala.App. 301

TODD v. STATE.

No. 795

Court of Appeals of Alabama

June 1, 1915

Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.

Will Todd was convicted of perjury, and he appeals. Affirmed.

The facts sufficiently appear. The following charges were refused the defendant:

(2) Under the evidence in this case, the jury cannot convict the defendant under count 2 for the indictment. (4) Before the jury is authorized to convict the defendant, the burden is on the state to prove to your satisfaction beyond all reasonable doubt by the evidence in the case each and every constituent element of the offense charged against the defendant, and if after a consideration of all the evidence in the case of the jury have a reasonable doubt of the guilt of the defendant, the jury must acquit the defendant.

F.E St. John, of Cullman, for appellant.

W.L Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

PELHAM P.J.

The defendant was tried and convicted on a charge of perjury alleged to have been committed by him when testifying as a witness on the trial of one Doyle Hooten, indicted for murder in the circuit court of Cullman county. On the trial of the perjury case, the solicitor, to prove the defendant's testimony given on the murder trial in the case of State v Doyle Hooten, offered and was allowed to introduce in evidence, over the objection and duly reserved exception of the defendant, a duly certified transcript of the official stenographer's notes of said testimony taken on the trial of the murder case. It was admitted in open court before the introduction of this evidence that the defendant who was then on trial in the perjury case in the circuit court of Cullman county was the identical person who had appeared and testified as a witness in the same court in the murder trial. The objection to the introduction of the stenographer's certified transcript of the defendant's testimony on the former trial as evidence on this trial is based on the ground that it deprived the defendant of his constitutional right of being confronted with the witnesses against him. Const. art. 1, § 6.

The transcript was admitted under the provisions of the act approved August 26, 1909, passed at the special session of the Legislature of 1909 (page 263); section 7 of the act (page 266) being as follows:

"Sec. 7. That all transcripts furnished by said official stenographer shall be certified to by him over his signature, and when so certified, such transcript shall be prima facie evidence of the proceedings in said cause, and said official stenographer must file such official transcript within thirty days after written demand is made unless such time is extended by the judge for good cause shown."

It was essential and material to prove on the perjury trial what the defendant had testified to in the trial of the murder case, and the statute we have above set out made the transcript of the testimony certified to by the official stenographer prima facie evidence of the proceedings in that cause. It is provided by this statute that such transcript when so certified must be filed in the cause. Under the provisions of the act the transcript is made and it becomes a record in the case, and we can see no good reason why, when relevant to the issue before the court, it is not admissible as prima facie evidence of its contents when properly certified and filed under the terms of the statute, the same as an indictment, an officer's return to process, or any other record in the case, without infringing the constitutional right of a defendant to be confronted by the witnesses against him.

The right of confrontation does not apply to record evidence when otherwise competent in the issues before the court, as for instance the mortgage in question on a trial against a defendant charged with disposing of mortgaged property, or the marriage record or certificate on a trial wherein the defendant is charged with adultery or bigamy. It is thoroughly settled and familiar that there are well-known and generally recognized exceptions to the rule grounded on constitutional guaranty that the accused has the right to be confronted with the witnesses against him. These exceptions find support in and are based upon principles of public policy, expediency, or necessity. Among the recognized exceptions that do not contravene the constitutional provision on which the general rule is founded, is proof of essentially documentary facts by documentary evidence, when the original record, or an officially authenticated copy, is made competent by statute. Woodward v. State, 5 Ala.App. 202, 59 So. 688; 12 Cyc. 543; Hawes v. State, 88 Ala. 37, 7 So. 302; Reid v. State, 168 Ala. 118, 53 So. 254.

The transcript made by the official stenographer of the testimony on the murder trial, in which the perjury is alleged to have been committed, is, pursuant to the statute (Acts 1909, p 266, § 7), made an official memorial of the proceedings on that trial, and thus becomes the court record of a public official, that under one clause in the act, when properly certified by the officer, is made prima facie evidence of the proceedings. It is, too, the best evidence, for the best evidence of the testimony in giving which the perjury is alleged to have been committed is the record of it, or a certified copy. Underhill on Crim.Ev. (2d Ed.) § 470, p. 768. In this day of advanced proficiency and skill in recording the exact words and language as they fall from the lips of the witness on the stand by an expert stenographer who has no interest in the proceeding other than as an official court reporter to accurately record the words spoken, it is no violation of sound principles, though it may be a departure in applying the old rule adhered to before the existence of modern conditions, to meet methods produced by the rapid strides of advancement in intelligence, to hold that a record thus made of the...