State v. GentryState v. Gentry
- Reporters:
- , ,
- Before:
- Mason
*535The opinion of the court was delivered by
Mason, J.:Joseph M. Gentry was convicted of assaulting and wounding C. H. Belknap under circumstances thаt would have constituted manslaughter if death had ensued. (Gen. Stat. 1909, § 2530.) He appeals.
Thе defendant, according to the evidence, was engaged in an attempt to take a five-year-old child by force from the possession of one who claimed to be her mother. He struck Belknap, who tried to prevent this, upon the head with a rеvolver, breaking the skin, and inflicting a wound about four inches long. The circumstances of thе assault are stated in greater detail in The State v. Tillotson, 85 Kan. 577, 117 Pac. 1030.
Belknap was out of the state at the time of the trial. The state produced a witness who testified that she was a stenographer; that she had correctly taken down in shorthand and afterwards transcribed the testimony that Belknap had given at the preliminary examination in the presence of the defendant. She was permitted to read from the transcript, over the objection of the defendant, and of this he now complains. This procedure did not violate thе constitutional right of the defendant to meet the witnesses against him face to face. (The State v. Nelson, 68 Kan. 566, 75 Pac. 505, 1 A. & E. Ann. Cas. 468; The State v. Harmon, 70 Kan. 476, 78 Pac. 805; The State v. Simmons, 78 Kan. 852, 98 Pac. 277; Note, 25 L. R. A., n. s., 868; Note, 13 A. & E. Ann. Cas. 973.) And it was competent for the stenographer, having declared under oath that the notes and Transcript were correct, to read the transcript. This was in effect testifying that she had made a memorandum of Belknap’s testimony as he gave it and from the memorandum was able to swear to what he had said. (Wright v. Wright, 58 Kan. 525, 50 Pac. 444; Note, 81 Am. St. Rep. 364; 3 Wig. Ev. § 1669.) The point is made that the witness was not the court sten*536ographer. She was the county attorney’s stenographer, appointed under the statute (Gen. Stat. 1909, §§ 2242, 2244), and it was a part of her duty to report and transcribe the evidence at the preliminary ¿xamination. But since she testified that her notes and transcript were correct, the admissibility of her testimony did not depend upon hеr official character. A transcript made •by an officer in the course of duty might be presumed to be correct, but no such presumption was necessary here, since there was affirmative testimony to its correctness. The statute authorizing a transcript of testimony made and verified by the court stenographer, to be used as a deposition (Gen. Stat. 1909, § 2407), does not exclude other methods of using a transcript to show to what a witness has testified. (Wilmoth v. Wheaton, 81 Kan. 29, 105 Pac. 39.)
Complaint is made of the refusal of the trial court to allоw the defendant to introduce evidence for the purpose of showing that the рerson having charge of the child was not its mother and was not entitled to its legal custоdy. We think the ruling was correct. The matters offered to be shown had no tendency to justify the defendant in striking Belknap with his revolver, or to palliate the offense of which he was convicted.
The defendant requested an instruction that no conviction could be had under section 42 of the crimes act (Gen. Stat. 1909, § 2530) unless the jury found that the natural and prоbable consequences of the assaulting and wounding would have been the death оf Bel-knap. This was rightly refused. Under the statute the offense is complete “if any persоn shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had еnsued.” The test is whether, if Belknap had died from the wound, the offense would have been manslaughter. In order for it .to have been *537manslaughter it would not have been necessаry for death to have been the natural and probable consequence of the wound.
“It is manslaughter at common’ law ... if one unintentionally kills another in doing an unlawful act, not amounting to a felony nor naturally dangerous to life, at least if the unlawful act is a misdemeanor and not a mere civil wrong and is malum in se and not merely malum prohibitum. . . . It is well settled that if one commits an assault and battery upon another not likely to cause death, and death unintentionally results ... it is manslaughter.” (21 Cyc. 761, 762.)
The court also refused to instruct that the jury should presume, there being nо evidence to the contrary, that the defendant had a lawful right to go to the house where the assault was committed. The refusal can not have been prejudicial. In view of the offense of which he was convicted, the lawfulness of his errand at the house was not in issue.
The judgment is affirmed.