Cunning v. State

Whitfield, C. J., delivered the opinion of the court. It is held in Wright’s case, 50 Miss., 332, that the law conclusively presumes that the committing magistrate took down all the testimony if he took down any, because — and the reason is vital' — he conformed to the law in taking down the testimony in writing, and certifying it, and sending it up to the next term of the'circuit court, etc. It is just because, and only because, the examination of the witnesses by a committing magistrate has been taken and dealt with as the law prescribes in such cases, and thus has all the sanctions of the law guaranteeing [287] its genuineness, that it can be used as the basis for contradicting witnesses, or the accused himself testifying voluntarily in his own behalf. In the Steele case, 76 Miss., 393 (24 So. Rep., 910), the law had been complied with in all respects as to the testimony taken before the coroner, and hence it was proper to use that correctly taken and certified examination as a basis for contradiction. But it clearly appears here that this examination of the witnesses by the magistrate in the committing trial was not signed by the witnesses, was not signed by the magistrate, was not certified in any way by him, and was not returned to the next term of the circuit court by him. It is impossible to sanction such utter disregard of the statute requirements. This paper is a nullity. It cannot be used in any way to contradict a witness. It is nothing but some loose sheets of paper, which might have been written by anybody, without any official certification as to what they are, without even the signature of the magistrate, and dealt with in no respect as the law directs. To hold that these fugitive sheets of paper, unsigned and uncertified by the magistrate, and never returned into court as required by law, constitute a proper compliance with the statute, would, in effect, repeal the statute, and destroy utterly all the safeguards necessary to make an examination such as the law requires it shall be. It will not do to say that the magistrate was testifying merely from his ‘ ‘ own recollection ’ ’ of what the witness said, in contradiction of the witness. His examination shows that he was testifying to piece out orally the solemn requirements of the law omitted by him in respect of the written examination of the witnesses. This sort of oral piecing out is not allowable. He said,he knew ‘£ most ’5 of the evidence had been written down by Bellamy, not the substance of all the testimony; and he was not allowed to answer whether Bellamy took it all down, or took it down correctly. In so ruling the court was evidently acting on the rule laid down in Wright’s case, supra, and the ruling would have been correct had the examination been dealt with accord [288] ing to law. The error was in treating these fugitive, uncer-tified sheets as a proper record. Where the examination is dealt with in accordance with the material requirements of the law, it is, because it has been so dealt with, the evidence, and the exclusive evidence, of what was testified in the committing-trial. But, where it has not been so dealt with — material requirements . being- wholly disregarded — it is a nullity; and in such case parol testimony may be received, from one who heard the testimony in the committing trial, to contradict a witness or the accused who testified there, as held in Steele’s case, supra. But the magistrate’s testimony here was not offered along this line, as the above rulings of the court below show. Had it been along- this line — the examination being discarded as a nullity— then the question asked by appellant’s counsel supra should have been answered. In short, if the examination be such as the law requires, it is the exclusive evidence. If not, parol evidence may be used by either side to contradict. Here the effort was to piece out orally the omitted requirements of the law, and to use the examination so pieced out, which is not permissible. Reversed and remanded.