Plaintiff in error, A.O. Corliss was convicted at the October, 1914, term of the district court of Payne county, upon a charge of maintaining a place where intoxicating liquors were kept and sold, and his punishment fixed at a fine of Two Hundred Fifty Dollars and imprisonment in the State Penitentiary for the term of one year and one day. From this judgment of conviction, plaintiff in error has duly prosecuted an appeal to this court.
The propositions preserved for review have been heretofore determined by this court.
The first assignment of error is based upon the failure of the court to exclude incompetent and irrelevant testimony. This *Page 528 assignment covers several different phases of the testimony, among others, the proposition that the court permitted the county attorney to ask the plaintiff in error if he had not been arrested upon similar charges for conducting the same place as charged in the information. This the county attorney had no right to do, and this court has repeatedly so held. A discussion of the principle is not again required for the reason that the doctrine is too well established to be misunderstood. A witness can only be asked if he has been convicted of crime.
Porter v. State, 8 Okla. Crim. 64, 126 P. 699.
White v. State, 4 Okla. Crim. 143, 111 P. 1010.
Hendrix v. State, 4 Okla. Crim. 611, 113 P. 244.
The second assignment of error is based upon the proposition that the court erred in refusing to require the reporter to take in shorthand and transcribe as a part of the record the argument of the county attorney, after due and proper demand had been made therefor by the attorney for the plaintiff in error. The court, it appears, had excused the reporter, and he was not in the court room, and therefore denied the request of the plaintiff in error to have the argument of the county attorney taken. The fact that the court reporter was out of the room is no fault of the plaintiff in error. We have repeatedly held, and that too in important cases, that controversies of this kind cannot be incorporated into the record by affidavits. Where the court refuses or fails to require the stenographer to take any part of the proceedings upon the defendant's request, then the fact of such refusal can be shown by affidavits. See 4 Okla. Crim. 641,Lamm et al. v. State. When questions of this kind arise, and the reporter is not available to record the proceedings as provided by law and uniformly followed by this court, it is the duty of the trial court to grant a new trial. Upon his failure to do so, this court will reverse the judgment regardless of the merits of that portion of the record thus omitted. In fact, it is the duty of this court, regardless of the materiality of the proposition, to reverse the judgment and award a new trial. The question of whether or not the particular controversy was material to the *Page 529 issues is not important here. The court reporters are paid to take the proceedings in the trial court, and when a demand is made for the same, it is only necessary for the record to show that this demand was made and not complied with by the court. A reversal follows as a matter of right. But when counsel for the defendant requests the trial court to have the stenographer take down in shorthand any statement made by the prosecuting attorney during his argument to be made a part of the record on appeal, and the court refuses or fails to comply with this request, then the fact of his request and the court's refusal may be shown by affidavit or other competent evidence, and thus the refusal upon the part of the court so shown constitutes grounds for reversal without regards to the merits of the case.
Section 1786 R.L. provides "an attorney in any case pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer, or when his presence is required by such attorney, shall be taken and transcribed or, when requested to require any statement to be taken down by the stenographer, a refusal of the court to permit any statement to be taken down by the stenographer, or transcribed after being taken down upon the same being shown by affidavit or other competent evidence, to the Supreme Court will be deemed prejudicial error without regards to the merits thereof." The statute applies with equal force to proceedings in this court. So it is seen that the doctrine is settled both by acts of the legislature and decisions of this court.
The third assignment of error is based upon the contention that the court erred in permitting the county attorney to rehash the state's testimony after the defense had closed, under guise of rebuttal. The order of introducing testimony and the character of rebuttal permitted by the court is largely discretionary. It is, however, most unfair to permit a complete rehash of the testimony introduced in chief. The defendant would be justly entitled to introduce his testimony if such practice is permitted. In any trial, many of the authorities hold that only new testimony contradicting or rebutting something proved by the defendant is *Page 530 entitled to be introduced in rebuttal. We are unable to see that this rule is either unfair or unjust to the State, and although the matter is largely discretionary, the trial courts are warned that an abuse of same or apparent disregard of the rights of a defendant, would warrant reversal. Fairness and equal recognition to the parties is essential.
Constitutional questions usually raised in this class of cases are not raised in the case at bar. The court is therefore not to be considered as committed to any particular view in these questions.
For the errors indicated the judgment is reversed, and the cause remanded for a new trial.
DOYLE, P.J., and BRETT, J., concur.