1 Pa. Super. 518 | Pa. Super. Ct. | 1896
Opinion by
The defendant was indicted for committing rape upon a
The second assignment of error is to the admission of the testimony of Mary Jones. This assignment is based upon the testimony as it appears upon the notes of testimony as certified by the stenographer. It appears upon these that she testified that she met the defendant as she was coming out of her house into the yard and he was coming up into the yard. The learned judge certifies that the stenographer’s notes of testimony are correct, except that according to the notes of testimony taken by himself, and that his recollection of the testimony is in accord with his notes; she testified “that about seven o’clock that evening she met the defendant going in yard of McAndrews.” This raises the question whether the notes of testimony as certified by the stenographer are to be regarded as the proper record of the evidence by this court, even where the judge certifies as to their incorrectness, or whether the judge’s certificate as to the testimony is to be considered paramount to that of the stenographer. This question was passed
“ It does not appear from the notes that the point raised was decided at all. Application was subsequently made to the court for the correction of the record of the testimony. This was refused because the law had made these notes the best evidence, in cases of dispute. The judge who tried the ease has certified however that the court decided to admit the evidence, saying in substance that it was competent to show the consideration by parol, and that ‘the evidence was not offered or received for the purpose of proving a parol promise to pay the purchase money due.’ While this misunderstanding may have no evil influence in this particular case, it may be remarked in passing that its occurrence indicates the possibility of mischief that may flow from too liberal a construction of the act of the 15th of May, 1874. In providing by the second section that the stenographic notes of the testimony in all proceedings of any trial of the facts, together with the charge of the judge, shall be deemed and held to be official, and ‘ the best authority in any matter of dispute,’ the legislature did not design to subordinate the power of the judge to the power of the stenographer. The administration of the law has been committed to the courts by the constitution, and the same constitution has provided that judges, and not clerks, shall compose those courts. Responsibility for the conduct of legal business must rest where it has been constitutionally lodged. The legislature would have no power, as they would have had no intention, to impose upon the clerk who records the details of the trial, the duties of the judge who tries the cause. The stenographic notes that are to be ‘the best authority in any matter of dispute,’ are the notes made up under the eye and direction, and with the approval of the court. They have then the effect of the prothonotary’s certificate of the record of a cause and are subject to be modified and
The third assignment of error is so absolutely without merit that it is perplexing why it should ever have been made. The witness was called to testify to contradictory statements of the defendant upon the night of the perpetration of the crime. He testifies that he told the witness he need not be sworn if he did not wish to be, and that he was sworn at his own request, and that he made contradictory statements as to where he was upon the night in question. There was no error in the admission of this testimony.
The fourth and fifth assignments of error are as much without merit as the third. The question asked of the defendant in cross-examination was whether he had not told some parties. as to his whereabouts upon the night of the commission of the crime. He did not admit that he said so, and denied having “a big time ” there that night. As he did not admit it no harm was done the defendant. Even though he had the question
The sixth, seventh and eighth assignments of error relate to the charge of the court, and the ninth to denying motion in arrest of judgment and motion for a new trial. The first three of these assignments can be considered together. In regard to the last it is only necessary to say that it was not a motion in arrest of judgment at all, although the appellant is pleased to call it so. It contains two statements of why the defendant should not have been convicted under the evidence, both perhaps proper to present to the court’s consideration in a motion for a new trial, but not in a motion in arrest of judgment. A denial of a motion for a new trial is not reviewable in this court. In regard to the sixth assignment of error, that is disposed of by what we have already said in regard to the judge’s correction of the transcript of the notes of testimony in the evidence of Mary Jones. The seventh and eighth assignments of error relate to portions of the charge of the court. We can find nothing in these portions of the charge which would justify us in sustaining these assignments.
Judgment affirmed.