Fuson v. CommonwealthFuson v. Commonwealth
- Reporters:
- , ,
- Before:
- Williamclay
OpxnioN op the -Court by
William; Rogers Clay, CommissionerAffirming.
Defendant, Lida Fnson, was found guilty of obtaining property by false pretenses, and asks a reversal of tbe judgmеnt of conviction.
Tbe facts are these:
Prior to tbe commission of tbe offense with wbicb he is charged Fuson bad executed twо notes to James Wynn, one for $400 and one for $200. Wynn became ill, and Alice Wynn, bis wife, placed tbe notes in tbe keeping of her father, William Carpenter. According to the evidence for the Commonwealth, Fusоn went to Wynn’s home to inquire about tbe notes. Wynn was unconscious, and Fuson was told- tbat William Carpenter bad tbе notes. Fuson then went to William Carpenter and told him tbat Alice Wynn, bis daughter, bad sent him there to get tbe notes. This stаtement was false. Carpenter, be lieving tbe statement, and relying thereon, delivered tbe notes to Fuson. At tbe same time Fuson gave Carpenter a cheek for $500, stating tbat he bad tbat amount of money in tbe bаnk on wbicb it was drawn. Fuson claims that tbe two notes represented borrowed money and tbat tbe $200 note shоuld have been for $100. He also claims tbat be bad paid Wynn about $325 on tbe two notes, and owed only a bаlance of about $170. He denies telling Carpenter that Alice Wynn bad sent him for tbe notes. He denies executing a $500 check, and claims tbat the check which be actually delivered was for $170, and tbat be bad suffiсient money in bank to pay this note.
Defendant insists tbat the trial court -erred in refusing a continuance. His affidavit shows tbat be gave to jibe clerk a few days before tbe trial a written memoran*343dum containing the namеs of certain witnesses, with directions to issue subpoenaes for them, hut he did not know whether they had ever been issued or served. As the affidavit did not show that the requested subpoenaes had ever been placed in the hands of the sheriff for service, it is manifest that due diligence was not used by the defendant in securing the аttendance of the absent witnesses. Notwithstanding this fact, however, the trial court permitted the affidavit to he read as the deposition of the absent witnesses. Under these circumstances, the defendant сannot complain of the court’s refusal to grant a continuance, because the action of the court was more favorable to him than the circumstances warranted.
It is next insisted that the cоurt also erred in refusing to grant a new trial. The affidavit being very long, we deem it unnecessary to copy it in full. It is sufficient to say that very little, if any, newly discovered evidence relied on was competent, and the facts alleged are not sufficient to show that the evidence could not have been discoverеd prior to the trial by the exercise of reasonable diligence.
As the court did not err in refusing either a continuance or a new trial, and the indictment and instructions are not subject to criticism, and the evidеnce is sufficient to sustain a conviction, we see no reason for disturbing the judgment.
Before closing this oрinion we deem is necessary to discuss a question affecting the transcript of evidence. It appears that the stenographer’s certificate appended to the transcript, wherein she сertifies that “the foregoing is a complete transcript of the evidence heard on the trial of the case of Commonwealth of Kentucky v. Lida P. Fuson, as appear from my stenographic notes taken on the 7th day of the September term, 1914, of the Whitley Circuit Court, and all the objections, exceptions and avowals made during the trial of said case,” is on a separate page from the transсript, and was signed by the stenographer on October 24,1914. Following the certificate is the certificatе of the circuit judge, signed on said date, wherein he certifies that “the foregoing transcript of evidenсe has been examined, approved and signed by me as the judge before whom the trial was had at thе September term, 1914, of the Whitley Circuit Court.” It is admitted by counsel, and the facts show, that these two certificates were signed prior *344to the time that the transcript was filed, or even prepared. It farther aрpears that this method of certification has long been the practice of that court, and was adopted for the convenience of the court and the parties to the action. Manifestly the very purpose of the certificates is to establish the integrity of the record by showing that the transсript is in fact what it purports to be. Therefore, certificates signed before the transcript is even prepared, though with the expectation that the transcript will thereafter be inserted in a plаce left for that purpose, utterly fail to accomplish the’ purpose for which they are required. Though no advantage of the opportunity may be taken, it must be conceded that an opportunity for tampering with the transcript is fully afforded by the practice in question, which necessarily leavеs, the minds of the members of this court in doubt as. to, the verity of the record which they are called on to consider. Under the circumstances, therefore, we would be derelict in our duty if we did not express our unqualified ..condemnation of the method of certification employed in this case.
Judgment, affirmed!..