Bridgman v. Estate of Corey

— 9 — The opinion of the court was delivered by Royce, Ch. J. The first statute authorizing the appointment •of a reporter was No. 52 of the Acts of 1869. That act empowered the County Court to appoint and employ a reporter to report the proceedings of the court, for the use and convenience of the court and parties having business therein, and required that such reporter should be sworn to the faithful discharge of his duty, and should be responsible for the .correctness of his reports. In 1878, by act No. 36, the presiding judge was required, in all trials on indictments where the punishment, on conviction, would be death or imprisonment for ten years or more, to procure a stenographer to take down all the proceedings of the trial, at the expense of the State. By the second section of No. 44 of the Acts of 1878, the presiding judge and the chancellor of. each Court of Chancery was given power to appoint and employ a stenographic reporter to make a verbatim report of the proceedings of either court at any term thereof, and of such proceedings and hearings before auditors, referees and masters in chancery as such judge or chancellor might order to be reported. The third section provided for the filing with the clerk, within a time fixed, of all evidence and proceedings in all cases directed by the presiding judge, and the furnishing of copies to any parties interested. The fourth section provided that all such transcripts, in cases ordered to be reported by the presiding judge or chancellor, duly certified by such reporter, should be received in evidence in any cause where the subject matter would be admissible under the rules of evidence. The exceptions show that the transcript made by the official stenographer, offered in evidence in this case and excluded by the court, was duly certified by the stenographer to be a verbatim transcript of his verbatim stenographic notes of the evidence given upon a former trial. The transcript was not filed in the clerk’s office or ordered to he transcribed by the court. Was it error to exclude it? — 10 — In construing statutes, such construction should be adopted as will carry into effect the true intent and object of the enactment. There can be no doubt as to the object and purpose of the statutes above referred to. It was to preserve the proceedings and evidence in causes in a manner and form that would be authentic and certain, as well as to expedite the transaction of business by the court, and for the benefit of those who might be interested in the proceedings. With that purpose in view, the reporter was made an officer of the court, to be sworn before entering upon his duties, and made responsible for the correctness of his reports and the copies made by him and certified to be correct. His duties are prescribed by the statutes providing for his appointment, and while acting in the discharge of his duties he is acting under the order of the court making the appointment. He is required to furnish a copy of his notes to any party in interest, upon request and the payment of fees. The fact that it may have been made under a special order of the court was not intended to effect the question of its admissibility as evidence, and to make its admissibility depend upon such an order would, in our judgment, be contrary to the spirit and intent of the law. In State v. Hannett, 54 Vt. 83, referred to by plaintiff’s counsel, no transcript made by the reporter was offered in evidence, but the reporter was improved as a witness and asked to read his notes of respondent’s evidence upon a former trial, and the contention was as to what portion of his notes he should be permitted to read. No such question was made as is here presented. In Quinn v. Halbert, 57 Vt. 178, Judge Tart, in the opinion, says: “Was the transcript of Quinn’s testimony admissible? While there is force in the suggestions of defendant’s counsel, we think the section 816 of R. L. makes it admissible, although the stenographer described in words signs made by the witness.” The above are the only Yermont cases to which our attention has been called that it is claimed has any bearing upon the question here presented. Keeping in view the evident intention — 11 — of the law and the purposes to be accomplished by it, we hold that to make the transcript admissible for the purposes for which it was ofíered, it was not necessary that it should have been made under a special order of the court, and that.it was error to exclude it. It appears to have'been properly certified, and, inasmuch as the law required that the reporter should be sworn, the presumption would be that he was sworn. The evidence offered by the defendant that upon the former trial the plaintiff claimed that the person with Dr. Corey, upon the occasion referred to in the evidence, was a different one from the one claimed upon this trial, should have been admitted* The reasons given for the admissibility of that kind of evidence are fully stated in Landers v. Seaver, 32 Vt. 114; Nye v. Merriam, 35 Vt. 445, and Hotchkiss v. Ladd, 43 Vt. 355. The copy of the note which was made by the witness Bridgman at the request of defendant’s counsel upon his cross-examination, was offered as evidence by the defendant. Its admissibility would depend upon the purpose for which it was offered. If offered for the purpose of comparison with the copy of the note in controversy, which it was admitted the witness made, or with the signature, which it was claimed by defendant he wrote, it would have been admissible, but it was only offered for the purpose of showing that he disguised his hand and did not write an honest copy. Its use would have no direct tendency to show whether the witness wrote the signature to the note in controversy or not, and it does not appear that it was error to exclude it. The same witness testified in relation to the claim here made before the commissioners on Dr. Corey’s estate, and upon his cross-examination was inquired of with reference to his testimony given before the commissioners, and counsel for defendant proposed to ask him: “Did you testify to all the particulars of what transpired there when you testified before the commissioners ?” The question was properly excluded. If counsel would discredit a witness by showing that he has testified differently upon some previous occasion, or has omitted to state facts which — 12 — are regarded as material, the attention of the witness should be called to the particular things in which it is claimed his testimony is variant, or to the facts omitted to be testified to by him, so that he may have opportunity to make all proper explanations. The plaintiff’s evidence tended to show that the note in suit was given and the money procured upon it on the occasion of Nr. Corey’s going to Hardwick to make a pension affidavit for Mr. Edwards; and Mrs. Corey, after stating her knowledge of Nr. Corey’s business affairs, was asked whether the Dr., when he came home that day from Hardwick, brought home $300 with him; and the court ruled that the question was inadmissible. The only answer that the witness could have given to the question must have been the expression of an opinion, or the statement of what was communicated to her by Dr. Corey, and such an answer would have been inadmissible; so there was no error in that ruling. There was no error in defining the purpose for which the evidence of Dorman Bridgman was admissible. In relation to the testimony of the witness Miles, it was simply an offer to prove the declaration of Dr. Corey, and was clearly inadmissible; and the fact that Dr. Corey had a large sum of money in the savings bank when the note in suit was given and when it became due, had no such bearing upon the question of the signature to the note in question as to make it admissible. The tax inventory made by Dr. Corey was not admissible. The plaintiff was not a party or privy to it, and it was not allowable for Dr. Corey to manufacture evidence to affect her rights. The question proposed to be put to Mr. Perley in relation to a conversation he had with the witness Bridgman, was immaterial and properly excluded; and the offer to show, the condition of Dr. Corey’s health by his declarations was properly excluded. The fact that he was engaged in settling up his business for some time previous to his death had no tendency to show that his signature to the note was forged. — 13 — The witness Ames testified that for several years he had been largely engaged in the examination and comparison of hand writing ; that in making such examinations he frequently made use of the compound microscope, and that for the last five years he had made almost daily use of it; that one unacquainted with its use could not make use of it in making such examinations, but that one having intelligence and judgment in the use of the different object glasses he supposed might use it. After the witness had so testified, the defendant offered to show by him that upon an examination of the paper upon which the note was written under the microscope, he discovered traces of pencil marks, and that the fibre of the paper had the appearance of having been broken and rubbed before the ink was laid on. The court ruled that expert evidence was not competent for that purpose ; that the microscope, which was in court, could be used by the jury; and excluded the evidence. It is now claimed that it does not appear that the witness was qualified to testify as an expert; but it will be noticed that the exclusion of his evidence was not put upon that ground. The court treated him as an expert, and based its ruling upon the fact that expert evidence was not admissible ; and no objection appears to have been made to the evidence upon the ground that the witness was not qualified to testify as an expert. It is not necessary to repeat what has been, often said in the adjudged cases in this state as to what constitutes an expert. The only reason that can be assigned for the exclusion of the evidence must be that in the judgment of the court the jury, with the aid of the microscope, were as well able to judge of the facts to which the witness’s attention was proposed to be called as the witness. That, we think, was an erroneous view to take of the subject. In Bemis v. Railroad Co., 58 Vt. 636, it was said that experience and familiarity constitute peculiar knowledge and give a person special skill, and that such a person could testify as an expert. The witness possessed these qualifications, and should have been permitted to testify as an expert. Judgment reversed and cause remanded.