81 So. 320 | La. | 1919
The accused was tried before a jury for murder, was convicted of manslaughter, was sentenced to the penitentiary, and has appealed.
He having denied on cross-'examination that he had made certain statements in his testimony on the preliminary examination of his case, the prosecution, in rebuttal and for the purpose of impeaching him as a witness, put on the stand the stenographer who had taken down the testimony at the preliminary examination; and after this stenographer had testified that he had no recollection of what the said testimony had been, but remembered that he had taken it down correctly, the prosecution offered in evidence the statements in question.
To this offer, accused made the following objection:
*803 “At the preliminary examination of the accused his testimony was not taken in conformity with section 1010 of the Revised Statutes of 1S70, and especially in view of the fact that the deposition (of accused) was not signed by the person (accused) and not signed by two witnesses, and that the correctness of this testimony representing the transcription of the stenographer’s notes, has not been established by the oath of any witness; and upon the further ground that it is only part of the testimony and that the testimony as a whole should be introduced, and, if introduced as a whole, would show that the statement made by defendant upon the preliminary examination is exactly the same statement made by him upon the witness stand.”
This objection was overruled, and the statements in question were read to the jury. The accused, then, with reserve of said objection, offered in evidence the stenographic notes as a whole, contending that as a whole they would show absence of conflict with his testimony on. the present trial; and the offer was denied, for the reason that—
“The accused could not have introduced the testimony taken on the preliminary trial for any purpose.”
The judgment and verdict are set aside, and the case is remanded for trial.
See dissenting opinion of O’NIELL, J., 81 South. 321.