People v. McIntyre

THE COURT.

Defendant was convicted of the crime of grand larceny. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

When the case was called for trial, the complaining witness failing to appear, the district attorney was permitted to read in evidence, against defendant’s objection, the' deposition of said witness given on the preliminary examination of defendant in the police court. The only question involved in this appeal is as to the correctness of this ruling.

1. It is objected that the transcript was not certified as required by law. Section 869 of the Penal Code provides: “The deposition or testimony of the witness must be authenticated in the following form: .... When taken down in shorthand, the transcript of the reporter appointed as aforesaid, when written out in longhand writing and certified as being a correct statement of such testimony and proceedings in the case, shall be

prima facie

a correct statement of such testimony and proceedings.” The certificate in question reads: “I hereby certify the foregoing to be a true and correct transcript from the shorthand notes taken by me, and a full and complete record of the proceedings had and testimony given in the above-entitled case.” ■

[425]

While the stenographer was grossly careless in not consulting the statute when formulating his certificate to the transcript of the evidence, still, after careful consideration, the court has arrived at the conclusion that the certificate is made in substantial compliance with the form demanded by the statute. It is certified that the transcript contains a full and complete record of the testimony given in the cause. A complete record of the testimony of the witness may fairly be said to be a correct statement of his testimony.

2.

When the deposition of the witness was being read, the defendant demanded a comparison of it with the shorthand notes. It was disclosed that the deposition was not a correct transcript of the reporter’s -notes in several particulars, and it was objected to for that reason. The only difference between the deposition and the notes of apparent significance related to what occurred at the hotel where the prosecuting witness had testified that he and defendant went to lodge on the night the larceny is alleged to have taken place. The two went together to this hotel, as it appears by the deposition. The witness was asked by the district attorney to give the exact text of his notes: “The Witness: A. Yes, and we got a two-bed room there, and I went to my bed, and at 7 o’clock I got up in the morning and I missed my money.” Counsel for defendant read from the transcript, addressing the witness: “Q. I will read it again, and I read the punctuation: ‘Yes, (comma), and we got a two-bed room (period). And I went to my bed at 7 o’clock (period). And I got up in the morning and I missed my money.’ Is that correct? A. That is not correct.” The witness was asked if there was anything in his notes that he (the prosecuting witness) got up at 7 o’clock; to which he replied, “To, sir.” The dispute seemed to be whether the witness had said he went to bed at 7 o’clock, or had said that he got up at 7 o’clock. Defendant contends that the fact was important because there was evidence that the defendant left the room, where he and the witness were sleeping, at 5 o’clock in the morning. The evidence is not before us, and we cannot say whether the variance between the shorthand reporter’s notes and the transcript of them was material to defendant’s case. Whether the fact was that the prosecuting witness went to bed at 7 o’clock or