130 Mo. 438 | Mo. | 1895
Defendant was convicted of assault with intent to maim one Richardson, and, sentenced to pay a fine of $100 and to be confined for six months in jail, appeals to this court.
The evidence has not been preserved in the bill of exceptions, the stenographer having died about a month after the trial without having transcribed his notes, owing to a long illness beginning soon after circuit court adjourned, and continuing down to the time of his death, and no one else can translate the stenographer’s notes of the evidence.
Upon these grounds, and upon the further ground that no other notes of the evidence were taken, either by defendant’s or other counsel in the cause, we are moved, on behalf of defendant, to reverse the judgment and remand the cause.
This we can not do. Notwithstanding the sickness of the stenographer, there was nothing to prevent defendant’s counsel to have remembered and written down the substance, at least, of the testimony and have the same inserted in the bill of exceptions, because it is evident the evidence could not have been lengthy, and due diligence required of them when discovering the stenographer was dangerously ill, to have preserved the evidence in some way. This might have been done if their memory failed, by calling on the witnesses who had testified at the trial. Whitmore v. Coates, 14 Mo. 9.
This case does not resemble, in any particular, that of State v. McCarver, 113 Mo. 602.
As no evidence has been preserved, and there is no error in the record proper, judgment is affirmed.