Reid v. Reid

Hayne, C. In order to contradict the defendant upon a material point, the plaintiff was permitted, against objection, to introduce the stenographer’s transcript of evidence given by the defendant in a different suit. This transcript, which does not appear from the record to have ever been filed, was certified by the stenographer “to be a true and correct transcription from my shorthand notes taken in the trial of said cause.” The stenographer was not examined as a witness, but the transcript was admitted on the faith of the certificate. The question is, whether the paper was legal evidence of what the defendant said on the former trial. \\

So far as we have been able to ascertain, this precise question has not been decided in this state. In People v. Woods, 43 Cal. 176, it was sought to use the reporter’s notes as a record on appeal. The decision was, that they could not be so used, because a record on appeal imported absolute verity, and the notes were only prima facie evidence. In Meyer v. Roth, 51 Cal. 582, the notes were [207]sought to be introduced, not as evidence of an admission, or in contradiction of what had been sworn to, but as original evidence of the fact in dispute; but the witness who had testified, being alive and within the state, this was not permitted: the decision did not touch the point that the notes were not evidence of what the witness had said, but was that what the witness had said was not evidence -of the fact in dispute. In People v. Lee Fat, 54 Cal. 529, the witness whose testimony was sought to be introduced could not speak English, and the testimony was given through an interpreter. The decision was, that what the reporter had taken down was not what the witness had said, but was what the interpreter had said he had said, and was therefore hearsay. And People v. Ah Yute, 56 Cal. 120, followed the preceding case, and laid down the same rule. In People v. Chung Ah Chue, 57 Cal. 568, the decision turned on the construction of section 686 of the Penal Code, and is not applicable to cases to which that section does not apply. And People v. Qurise, 59 Cal. 344, simply followed the preceding case. In Hicks v. Lovell, 64 Cal. 22, the admission of the reporter's notes of what the witness had sworn to was sustained on the ground that “no objection was made to the transcript as evidence of his testimony.” In People v. Cunningham, 66 Cal. 672, only two justices concurred in the opinion, and they placed their opinion on the ground of “the admissions of the defendant's counsel.'' The decisions of the court, therefore, do not cover the precise question.