87 So. 895 | Miss. | 1921
delivered the opinion of the court.
This is a motion to strike the stenographer’s notes from the record because said notes show on their face that they are incomplete and incorrect, because they do not set
To this motion is appended affidavits showing that at the night session, November the 18th, no stenographer was present to officially report the evidence, and that evidence Avas taken from about 6:45 to about 10:30 o’clock, and that the cross-examination of Frank Benjamin was begun and continued approximately for the night session.
There was no bill of exceptions prepared and tendered to the trial judge during the term of court at which this hearing was had, to show what evidence was taken at the night session, and the notes show on their face that the stenographer was sick and did not attend the night session.
We are unable to say that the testimony taken in the absence of the stenographer was of no effect, or that it would not change the effect of the evidence of said witness as a whole. Under the practice of this state a witness is not limited on cross-examination by the matters developed in direct examination, but he becomes a witness for all purposes, and on cross-examination may be examined "for matters pertinent to the issue, though such matters may be affirmative defense, or may be entirely new matter. This being true, we are not able to say from the record what evidence was taken.
It is proper practice, in case a stenographer cannot be had, during a trial, to preserve the evidence in a bill of exceptions approved by the judge during the term of court. The judge has power, in the absence of the regular stenographer, to appoint a stenographer-pro tempore, but if this-is not done, and the evidence must be looked to to determine the propriety of the court’s rulings and judgments, the evidence must be supplied by special bill of exceptions, or by agreement of counsel.
Inasmuch as the evidence is incomplete, we could not look to the partial evidence before us to decide the propriety of the rulings and judgments of the court, and the motion must be sustained.
Sustained.