Appeal from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.
L. W. Elliott, and J. C. Campbell, for Appellant.
J. B. Hall, for Respondent.
JUDGES: Hayne, C. Belcher, C. C., and Foote, C., concurred.
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 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, [14 P. 782] 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.
By the common law there can be no doubt but that the evidence was inadmissible; for the document amounts to a mere certificate of the reporter that the evidence had been given. It had not the sanction of an oath. The oath of office is not an oath in the cause. As said by Tilghman, C. J., in Miles v. O'Hara, 4 Binn. 110, concerning the notes of a judge: "It is refining too much to say that he takes his notes under the obligation; nor is that the oath which the law requires to verify a fact." Moreover, there was no opportunity for cross-examination. These principles have been applied in analogous cases. Thus it has been held that the judge's notes are not admissible. (Miles v. O'Hara, above cited; Schafer v. Schafer , 93 Ind. 586.) So of the minutes of a referee. (Mott v. Ramsay , 92 N.C. 152.) So of the notes of a committing magistrate. (State v. Collins, 32 Iowa 36.) So of the notes of a coroner. (Bass v. State , 29 Ark. 142.) And so of the notes of a stenographer. (Lipscomb v. Lyon, 19 Neb. 511; compare Rounds v. State , 57 Wis. 52.)
If, therefore, the notes are admissible, it must be by virtue of some statute. The statute which is claimed to cover the case is section 273 of the Code of Civil Procedure, which is as follows:
" Sec. 273. The report of the official reporter or official reporter pro tempore of any court, duly appointed and sworn, when written out in long-hand writing, and certified as being a correct transcript of the testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings."
But this statute does not say that the transcript shall be legal evidence of any fact. It simply says that it is prima facie correct. The two propositions do not seem to be identical. There are many things which are not only presumably but demonstrably correct, but which are, nevertheless, not legal evidence. Moreover, the notes are only prima facie correct. If the reporter had been called and had testified on his examination in chief that the transcript was correct, it would have to be taken at that stage as prima facie correct. But the opposite party would have had the right to cross-examine him, before proceeding further, to show its incorrectness, and possibly would have succeeded in eliciting something which would have shown such incorrectness. And to make the document itself admissible upon the faith of the certificate would deprive the party of this right of cross-examination, which the authorities agree is one of the most important tests of truth. But even if the reporter could have stood the test of cross-examination, and the result of his whole testimony had been that the transcript was correct, we do not think that the transcript would have been admissible except in connection with the testimony of the reporter. The unfiled transcript is certainly not a public record, but must be put upon the footing of a private memorandum; and having been written up we do not know when, it was not admissible as part of the res gestae; as to which, see Severance v. Lombardo , 17 Cal. 57; Sill v. Reese , 47 Cal. 342. This being the case, the transcript could at most have been used to refresh the memory of the witness. And the general rule with reference to the admissibility of papers used to refresh the memory of a witness is stated by Cowen and Hill in their notes to Phillips on Evidence, as follows: [14 P. 783] "He will not be permitted to read his notes or memoranda to the jury, nor can they be admitted as evidence to the jury in any sense." (1 Phill. Ev., 4th Am. ed., 586, note 170.) This general rule seems to be embodied in the Code of Civil Procedure, for, after providing that the adverse party may read the memorandum to the jury, it has the following: "So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts." (Code Civ. Proc., sec. 2047.)
We think, therefore, that section 273 does not make the transcript itself admissible in evidence. Nor is this to be regretted. For the provision is so unlimited as to open the door to gross frauds if the construction contended for should be given to it. There is no requirement that the notes shall be filed. Either party to the action in which they are taken, or the judge, may require them to be filed. But in practice this option is hardly ever exercised. Consequently there is nothing by which their incorrectness may be shown. Moreover, there is no limit to the time within which the certificate may be given. From the absence of words of limitation in this regard, and from the fact that the official reporter is placed in the same category with the reporter pro tempore, it would seem that he may give his certificate after ceasing to be reporter, even ten or twenty years after, and the result would be that a party might find himself confronted with a certificate as to what had been said in another cause, perhaps between other parties, a long time previously, and have nothing of record by which he could disprove it, and possibly be unable to find a trace of the person who had given the certificate. Part of the ground upon which public documents, or copies thereof, are admissible, is the publicity of the subject-matter. (1 Greenl. Ev., sec. 483.) And where a certificate is admissible, it is a material circumstance that it was not made long after the fact. (Gaines v. Relf, 12 How. 535.)
But what meaning is to be given to the statute? Speaking of the act of 1867-68, which went further than the code (because it provided that the notes should be prima facie evidence), Wallace, J., delivering the opinion in People v. Woods, above cited, said: "This proceeding evidently refers to the proceedings to be had in the court below upon settlement of statements, allowance of bills of exception, etc." If the framers of the section had any other purpose in view, it cannot be gathered from their language.
It is to be observed that the foregoing relates to civil cases. Possibly the provisions of the Penal Code, taken together, may be different.
We therefore advise that the judgment and order be reversed, and the cause remanded for a new trial.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial.