58 Kan. 525 | Kan. | 1897
The defendant in error sued the plaintiff in error upon a promissory note ; and she, by way of set-off, alleged in her answer that plaintiff had wrongfully possessed himself of a certificate of deposit of money belonging to her intestate and had wrongfully converted such money and certificate to Ms own use. The material question in the case was: To
W. H. Burks, cashier of the bank which issued the certificate, being called as a witness by the defendant, produced and identified it. It was made payable to the deceased, R. H. Wright, and bore his indorsement. The witness testified to its payment to another bank which held it and had forwarded it for collection. This was the extent of his testimony in chief. On cross-examination, the court permitted the plaintiff to draw out matter tending quite strongly to show that the money represented by the certificate belonged to the plaintiff, and not to R. H. Wright, in whose name it was issued. This .is alleged as error.
Previous to the trial, the plaintiff had been in litigation with another person, and had given testimony to the effect that the money represented by the certificate belonged to R. H. Wright, and not to himself. The defendant desired to prove the admissions thus made, and called as a witness the official court stenographer who had taken the plaintiff's testimony in the former case. This witness produced his notes of the testimony in question, and said he knew he had taken such testimony correctly, but that he had no recollection of it so as to give even its substance, and could only give it by reading from his notes; that independent of such notes he had a recollection of some striking features in the testimony, but he would not undertake to give anything like the substance of it without referring to them, although he remembered certain expressions the witness had used. The following questions were then asked: "Can you x’emember the testimony of a witness given at the trial, where you report his evidence in short hand, as well from having reported such testimony as you could by sitting in the court-room and
For the purpose of proving the admissions attributed to the plaintiff upon the trial of the former case, the defendant offered as a witness, James A. Ray, a former judge of the district court, before whom such case had been tried, and who gave testimony tending to prove that plaintiff had admitted that the money represented by the certificate belonged to R. H. Wright, and not to himself. Upon cross-examination the following questions were asked of Judge Ray :
“From hearing the whole of Mr. Wright’s testimony, did it cause any impression on your mind as to whom the money belonged to?” “Yes, sir.”
“ State what that impression was.” “ My opinion was it was Mr. Wright’s money.”
Re-direct examination. “Which Mr. Wright’s ?” “ Mr. James W. Wright.”
“From what he said about it?” “Yes, sir; I would say from his testimony I would regard it as his money.”
The admissibility of this witness’s testimony, thus given on cross-examination, as to his impressions or
“ The fact that the witness has no recollection independent of the notes, does not exclude his testimony as to the facts stated in the notes, when he states that it was his uniform and unvarying practice to make true notes of events of the character noted, immediately after the occurrence of the events, and that the 'memoranda are parts of the notes in question.” 1 Wharton on Evidence, § 518.
“ When a witness has so far forgotten the facts that he cannot recall them, even after looking at a memorandum of them, and he testifies that he once knew them and made a memorandum of them at the time or soon after they transpired, which-he intended to make correctly, and which he believes to be correct, such memorandum, in his own handwriting, may be received as evidence of the facts therein contained, although the witness has no present recollection of them.” Rice's Evidence, 745.
“If, however, the witness, at or about the time the memorandum was made, knew its contents, and knew them to be true, this legalizes and lets in the testimony of both the witness and the memorandum. The two are the equivalent of a present positive statement of the witness affirming the truth of the contents of the memorandum.” Acklen v. Hickman, 63 Ala. 494.
Some of the cases go even farther, and allow a sim
Can there be any doubt that the notes of an official court-stenographer are memoranda which fall within the rule above quoted? We think not. That the testimony of witnesses and the speech of people generally can be faithfully — literally — recoz’ded by persons skilled in the • stenographic art is known to evezybody. It is the almost universal habit of courts, under the authority of statutes, to employ such pez-sons for this puz’pose. Their work is performed under the sanction of an oath, and provision is made in this State for the pz'eservation of their notes for future reference and use. Were it possible to write the testimony of witnesses in long hand, as it is delivered by them, no question could be raised as to the right of a witness who had correctly recorded it to read it to the jury, although all memory of it had passed from his mind. Does the fact that it was written in characters unintelligible to persons who have not familiarized themselves with shorthand systems of penmanship make any difference? If it does, the basis for the allowance of znuch expert testimony is in danger of being demolished. The stenographer in this case testified that he had correctly taken the testimony of the witness Wright; and the fact that he had no independent recollection of such testiznony after reading his notes, does not preclude him from giving to the juzy what he knew to have been coz’rectly done at the time it was performed.
Other claims of error are based upon certain evidence received and certain instructions given. They are not well taken ; but, for the rejection of material evidence in the one case and the erroneous admission of evidence in the other, the case is reversed and a new trial ordered.