136 S.W.2d 1066 | Ky. Ct. App. | 1940
Reversing.
The appeal is by Taft Meadors from a judgment of death for the murder of George Hamblin.
The general facts are stated in Canada v. Commonwealth,
Upon his arrest on Monday morning the defendant was taken to the office of the commonwealth's attorney and questioned by officers and others. That night he was taken from the jail to the same place and again questioned. Upon neither occasion did he admit guilt or self-incrimination. On Wednesday night following, *624
the defendant was again taken there and late that night he made a complete confession. It was transcribed by a stenographer and later signed by the defendant. The defendant denied the truth of the confession and said the statements had been extorted from him by threats and promises. His testimony clearly established a violation of the Anti-Sweating Act. Section 1649b-1 et seq., Kentucky Statutes. The testimony in contradiction was evasive and weak, but was not such that the court could say as a matter of law that the confession had been obtained in violation of the statute. The contradiction was such that under the present practice the court was required to submit to the jury the finding of fact upon which they might or might not regard the confession as competent evidence. Bennett v. Commonwealth,
Throughout the trial, defendant's counsel consistently objected to the introduction of evidence concerning the confession and statements made by the defendant at the three inquisitions. During his cross-examination, as the predicate for contradiction, he was asked if on one or the other of those occasions he had made certain statements which were not in accord with his testimony. The court overruled the defendant's motion to exclude all of it because the transcripts from which the attorney for the commonwealth had read the questions and answers had not been made a part of the record and had not been exhibited to the defendant's attorneys. Again, when the stenographer was called to testify as to the contradictions, defendant's counsel moved the court that *625 the transcript be produced and that they be permitted to examine it. The court overruled the motion. Was the denial of an inspection of the transcripts prejudicial error?
Where there is a stenographic transcript of previous testimony or statements, it is proper practice for the purpose of impeachment of a witness to ask if he was not asked certain questions and made certain answers, and if he denies them, then for the stenographer to testify from his notes or an accurate transcript that those questions and answers were asked and made. Illinois Central Railroad Company v. Johnson, Ky.,
It is a rule of general acceptation, made mandatory by both Sections 598 and 604 of our Civil Code of Practice, that before a writing can be used as a means of contradicting a witness he be given an opportunity to read or hear all of it read and be given a chance to explain it. While technically a stenographer's transcript may not be the kind of writing specifically referred to by the Code, since it is but another person's record of verbal statements, yet such duly authenticated transcript is usually an accurate memorial of the statements, and for practical purposes it is treated as a written statement of the person examined. The superior probative worth of such record over mere memory is recognized by statute and the courts. Kentucky Statutes, Section 1019a-6 et seq., 4643 et seq.; Moore v. Commonwealth,
"This rule is the dictate of reason as well as of humanity. The prisoner is supposed to have stated a proposition respecting his own connection with the crime; but it is not reasonable to assume that the entire proposition with all its limitations was contained in one sentence, or in any particular number of sentences, excluding all other parts of the conversation.
The same rule must apply in the matter of impeaching a witness by proving contradictory statements. In such application, the witness ought to be permitted to state any facts which will explain or reconcile the seemingly or actually inconsistent utterances, or to show their relation one to another and the meaning and purpose of each. Underhill, Criminal Evidence, Section 380. And as a stenographer is not expected to relate the contradictory statements from sheer memory and without referring to his notes or transcript, so his notes or *627 transcript used by counsel or himself ought to be shown to the witness under examination or to counsel introducing him. Underhill, Section 422. It is fair and important that opportunity be given to develop the whole statement or to show that the context puts a meaning upon some isolated or particular question or answer which is consistent with the testimony given on the trial. Wherefore, under such circumstances, the witness or counsel should be given the right to inspect and to use on re-direct examination the transcript or any other writing used in the cross-examination if it is in court, whether it be filed of record or not. Such is the general rule, and a failure to observe it may be prejudicial error, depending upon the particular circumstances. 70 C. J. 597, 713. In any instance, the scope and extent of the use of the transcript and presentation of portions of its contents should be limited by the court in his discretion and confined to the particular subject matter, having due regard for the rule of relevancy. 70 C. J. 632. We think the failure to permit an inspection of the transcripts by the defendant's counsel and an appropriate re-examination of the witnesses was prejudicial error.
As in the Canada case, the evidence in this one was permitted — and properly so — to take a wide range, and acts and statements of the alleged co-conspirators in furtherance of the conspiracy charged before its consummation were proved. As held in that opinion, so it must be held here that an instruction should have been given confining the jury in their consideration of those acts and utterances. Upon another trial an instruction in substantially this form, following the definition of "conspiracy," will be proper:
"If the jury believe beyond a reasonable doubt from the evidence independent of and aside from the acts and statements of Albert Canada, Henry Earls, Orville Richmond and Everett Canada, or any one of them, done or said in the absence of the defendant, Meadors, that a conspiracy was formed by them, or any of them, with the defendant, Meadors, to kill George Hamblin, and that the conspiracy existed at the time such acts were done or statements made, then the jury may consider in this case such acts and statements of any of said alleged co-conspirators. But if the jury do not so believe beyond a *628 reasonable doubt independent of and aside from such acts and statements of such persons or person that such conspiracy existed at the time, you will not consider such acts or statements as evidence in this case for any purpose whatsoever."
See Skillian v. Commonwealth,
Accordingly, the judgment is reversed.
Whole court sitting.