The defendant was convicted of manslaughter, and sentenced to five years’ imprisonment in the state prison, and he brings this appeal. Upon the trial the prosecution offered in evidence the short-hand reporter’s transcript of his notes of the testimony of one Anderson, given at the examination before the committing magistrate. The certificate attached to this transcript was as follows: “ I hereby certify that the foregoing is a full, true, and correct transcript of the short-hand notes taken by me herein. Ernest A. Girvin, official short-hand reporter of police judge’s court number two.” Among the objections taken to this document, one was that it was not properly certified. The reporter was then called as a witness, and testified that the document was a correct transcript of the notes taken by him of the testimony and proceedings at the examination before the magistrate. There was no attempt to have him refresh his memory from the writing, and then testify as to what occurred at the examination. His testimony relates merely to the correctness of the document. After hearing what he had to say on this subject, the court overruled the objections, and admitted the transcript, and the defendant excepted. We think this was error. The provision of the statute is, that the reporter shall “ transcribe into long-hand writing his said short-hand
The argument of the attorney-general that the reporter was an officer, and that the correctness of official action is to be presumed, proves too much. If allowed to. prevail, it would do away with the necessity of any certifi
It is to be observed that there was no attempt to have the reporter, who was there on the stand, refresh his memory, and then testify as to what occurred at the examination, which would have been a perfectly practicable course. (See Code Civ. Proe., sec. 2047; and compare Reid v. Reid, 73 Cal. 209.) The deposition was introduced as of itself sufficient to show the testimony of Anderson, and there was no other evidence thereof. The case of People v. Cunningham, 66 Cal. 672, is not at all in conflict with the foregoing. In that case the opinion places the admissibility of the testimony “upon the admissions of the defendant’s counsel”; and the admissions referred to are shown by the record in that case (which we have examined) to be, among other things, that “the reporter, if present, would testify to what was in his written notes as his recollection of said witnesses’ statements then made.” “ The presence of said reporter was waived. The written notes were admitted to be his recollection of said testimony.” Upon this admission no question as to a certificate could arise, and the briefs in the case show that no such question was argued. The opinion, therefore, does not touch upon the question before us, and besides this, it was not concurred in by a majority of the court.
As to the other matters argued, we think the action of the court was correct. Sufficient foundation was laid for the introduction of the testimony of Anderson. There was no sufficient showing of diligence as to Harold. The court properly refused to permit counsel to argue the law to the jury in his opening address; and it properly overruled the plea of once in jeopardy and former acquittal. (People v. Keefer, 65 Cal. 235.) We therefore advise that the judgment and order denying a new trial be reversed, and the cause remanded for a new trial.
For the reasons given in the foregoing opinion, the judgment and order denying a new trial are reversed, and the cause remanded for a new trial.
Searls, C. J., dissented.