I approve the ruling of the district judge, rejecting the special charge quoted in bill of exceptions No. 1. The first part of the proposed charge was a correct statement of the law, and it should have been given if it had ended there, but it was spoiled by the addition of a statement of the facts of the case or supposed facts.
I do not concur in the ruling that a defendant in a criminal case has no right to have the testimony taken down stenographically, under the provisions of the Act 113 of 1896, in order to make his bills of exception effective. In New Orleans, in every criminal prosecution, all of the testimony is taken down stenographically, and it is transcribed and made a part of the record or transcript of appeal in every case that comes to this court. That method of trying criminal cases is a great protection to the defendant, because, in the very nature of things, the issues which are contested on appeal are between the defendant and the district judge, as to whether the latter's rulings were right or wrong; and the question of correctness of the judge's rulings depends, very often, upon what the evidence was, or whether there was any evidence offered, on some particular phase of the case.
It will virtually do away with the Act 113 of 1896, as far as criminal trials in the country parishes go, if we maintain that a district judge may, according to his own whim, either allow or not allow the evidence to be taken down stenographically. There is no reason why one rule should prevail in New Orleans, in that respect, and another rule — or no rule — prevail in the country *Page 762 parishes, or why the right which is vouchsafed in one judicial district may be denied in another.
The rulings in State v. Lowry, 153 La. 180, 95 So. 596, and State v. Chaney, 153 La. 371, 95 So. 417, cited by Justice LAND, do not sustain the proposition that a defendant in a criminal prosecution is not entitled to have the evidence taken down stenographically. On the contrary, both of those decisions recognize and affirm the right of the defendant in a criminal prosecution to have the evidence taken down stenographically, provided he makes provision for the stenographer's pay. The trouble about the matter, as observed in both of those cases, has been that the district judges have not found any provision in the law for paying stenographers' fees in criminal cases, outside of New Orleans. In State v. Craft, 118 La. 125,1 (cited by Justice LAND), the request was, not that all of the evidence should be taken down stenographically, but only that the testimony of the eyewitnesses to the homicide should be so taken down, to show that the deceased had been the aggressor in the fatal difficulty, in anticipation of an objection being made by the district attorney to the introduction of evidence of previous threats made by the deceased. I think that the ruling in that case, refusing to have the testimony of the eyewitnesses taken down by the stenographer in anticipation of a ruling on the admissibility of evidence of previous threats, was wrong; but the ruling, if right, would not be authority for a refusal to have all of the testimony in a criminal prosecution taken down by the court stenographer, when the defendant is willing to pay the fee.
1 42 So. 718. *Page 763