69 So. 325 | Ala. Ct. App. | 1915
The defendant Avas tried and convicted on a charge of perjury alleged to have been committed by him when testifying as a witness on the trial of one Doyle Hooten, indicted for murder in the circuit court of Cullman county. On the trial of the perjury case, the solicitor, to prove the defendant’s testimoney given on the murder trial in the case of State v. Doyle Hooten, offered and was allowed to introduce in evidence, over the objection and duly reserved exception of the defendant, a duly certified transcript of the the official stenographer’s notes of said testimony taken on the trial of the murder case. It was admitted in open court before the introduction of this evidence that the
The transcript was- admitted under the provisions of the act approved August 26, 1909, passed at the special session of the Legislature of 1909 (page 263); section 7 of the act (page 266) being as follows: “Sec. 7. That all transcripts furnished by said official stenographer shall be certified to by him over his signature, and when so certified, such transcript shall be prima facie evidence of the proceedings in said cause, and said official stenographer must file such official transcript within thirty days after written demand is made unless such time is extended by the judge for good cause shown.”
The right of confrontation does not apply to record evidence when otherwise competent on the issues before the court, as for instance the mortgage in question on a trial against a defendant charged with disposing of mortgaged property, or the marriage record or certificate on a trial wherein the defendant is charged with adultery or bigamy. It is thoroughly settled and familiar that there are well-known and generally recognized exceptions to the rule grounded on constitutional guaranty that the accused has the right fe> be confronted with the witnesses against him. These exceptions find support in and are based upon principles of public policy, expediency, or necessity. Among the recognized exceptions that do not- contravene the constitutional provision on which the general rule is founded, is proof of essentially documentary facts by documentary evidence, when the original record, or an officially authenticated copy, is made competent by statute.—Woodward v. State, 5 Ala. App. 202, 59 South. 688; 12 Cyc. 543; Hawes v. State, 88 Ala. 37, 7 South. 302; Reid v. State, 168 Ala. 118, 53 South. 254.
The transcript made by the official stenographer of the testimony on the murder trial, in which the perjury is alleged to have been committed, is, pursuant to1 the statute (Acts 1909, p. 266, § 7), made an official memorial of' the proceedings on that trial, and thus becomes the court record of a public official, that under one clause of the act, when properly certified by the officer, is made prima facie evidence of the proceedings. It is, too, the best evidence, for the best evidence of the testimony in
We think the section of the statute above quoted makes the transcript of the testimony made by the official stenographer, a sworn officer of the court (Acts 1909, p. 264, § 3), a judicial record in the cause, and, when authenticated pursuant to the terms of the statute, is competent as prima facie evidence and entitled to full faith and credit as such just as any other judicial record in the cause, and admissible in evidence as presumptive or prima facie proof of its contents, when relevant, the same as any other record kept pursuant to law (see Williams v. State, 68 Ala. 551), as constituting an exception to, and without violating or impinging upon, the general rule of constitutional right of the accused to be confronted with the witnesses against him.
There was not at common law any recognized right to an indispensable thing called confrontation as distinguished from the right of cross-examination, and this in effect has been recognized by the Supreme Court as to the provisions of our organic law.—Wray v. State, 154 Ala. 36, 45 South. 697, 129 Am. St. Rep. 18, 16 Ann. Cas. 362. If this is the proper interpretation of the clause, and we think it is (see authorities cited in Wray’s Case, supra, top of page 42 of 154 Ala., 45 South. 697, 12 Am. St. Rep. 18, 16 Ann. Cas. 362), then a public record declared by law to be evidence that imports verity furnishes no reason for the application of the rule, as cross-examination can have no application to this class of evidence.
The constitutional rule of confrontation is but a sanction or guaranty of the right recognized under the common law, and is subject to the same exceptions as- then
This court has enunciated the same doctrine against objection on the same ground with regard to a certified copy of the stub of an internal revenue license and internal revenue tax stamp authorizing the party on trial charged with violating the prohibition law to engage in the business of a retail liquor dealer. This ruling is analogous to our holding here, in that it Avas based on the fact that the transcript admitted in evidence in that case was of a record required by law to be kept in the office óf a sworn public officer, and by the terms of the statute (Code 1907, § 3983) when properly certified was receivable in evidence. See Woodward v. State, 5 Ala. App. 202, 59 South. 688.
We find no- error in the record.
Affirmed.