Concurring. — It must be conceded that -errors were committed in the trial of this case. I do not think, however, that they render it necessary to reverse the judgment. It is quite apparent from the whole record that .substantial justice has been done in the case, and the errors that have been committed and which have received consideration in the opinion by Justice Stewart do not appear to have prejudiced any of the rights of appellant.
I find myself unable to agree with what is said in the majority opinion with reference to the witness Thurber refreshing his memory from an examination of the testimony given by .him at a previous trial of the same case. I particularly disagree with the holding of the court to the effect that evidence *796given by a witness upon the trial of a cause and taken by the shorthand reporter comes within the purview and meaning of section 6078 of the Eev. Codes, and is entitled to be classed as memoranda “written .... under his direction at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh1 in his memory and he knew that the same was correctly stated in the writing.”' Such a holding is not justified by the language employed in the statute. To say that notes taken by a shorthand reporter on the trial of a case are entitled to be classed as private memoranda made under the direction of the witness, is indeed a far-reaching and dangerous rule. Such a rule, in my judgment, would in many cases endanger both a man’s liberty and his property, and would furnish a shield for the production of false testimony upon subsequent trials, rather than a safeguard for eliciting the truth. In the first place, the court reporter is an officer of the court, and he makes his notes, not under the direction or control or sanction of the witness, but under the specific direction of the law. His oath as stenographer or court reporter is his official oath, but it in m> way lends the sanction of an oath to the facts reported. The' witness does not give his statement to the stenographer but to the court and jury. In order for a statement taken under his direction to be used for reference and to constitute a private memorandum, the statute says the witness must have known at the time it was taken down “that the same was correctly stated in the writing.” The witness has no way of knowing that the stenographer has correctly stated what he'. has said. The witness is unable to read it himself, and the-law does not require the stenographer to read it over to the witness, and indeed it is never done. Besides, the writing as-it was taken in shorthand is not what is presented to the witness, but the written transcript made weeks or months thereafter, and in the absence of the witness, is what is used to-refresh the memory of the witness.
The cases cited in the majority opinion do not appear to me to be in point, and I do not believe they sustain the rule in support of which they are cited. People v. Durrant, 116 Cal. *797179, 48 Pac. 75, from which the opinion in this case quotes, was not a parallel with the case at bar. There the deposition that was used to refresh the memory of the witness was one that had been taken at a preliminary examination in the same case. The opinion says: “For the purpose of refreshing his memory, the district attorney, over objection and exception by the defense, was permitted to read the following question and answer from the testimony of the same witness upon the preliminary examination in the police court.” Now, there can be no similarity between a deposition taken at a preliminary examination and the stenographer’s report of testimony given by a witness on the trial of the ease. In the first place, the statute specifically requires, and that is true in California as well as under our statute, that the deposition “must contain the questions put to the witness and his answers thereto, each answer being distinctly read to hiin as it is taken down, and being corrected or added to until it conforms to what he declares is the truth.” (See. 7576, Rev. Codes.) The statute further provides that the witness shall subscribe his name to the deposition given at a preliminary examination. Under these conditions the deposition given by a witness at a preliminary examination is clearly a memorandum made under his direction and, in the language of the statute, he must have known “that the same was correctly stated in the writing.” None of these reasons apply to evidence given by a witness on the trial of a ease in the district court. The quotation from the Durrant case, which is contained in the majority opinion in this case, cites Reid v. Reid, 73 Cal. 206, 14 Pac. 781, as supporting the rule announced in that case. An examination of Reid v. Reid will at once disclose that it does not hold as was announced in the Durrant ease. In the Reid case it was sought to contradict the witness who had testified, by introducing the stenographer’s transcript of evidence the witness had given on the same subject in another action. The stenographer’s transcript was certified “to be a true and correct transcript from my shorthand notes taken in the trial of said cause.” The court held that the transcript could not be used and did not fall within the rule prescribed by the statute. *798The stenographer.was not called to identify the transcript or to testify that it correctly stated what the witness had testified to. The court says: “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,” etc. It then proceeds to hold that if the court reporter had testified to the correctness of the transcript, it would then constitute a “private memorandum,” as to the stenographer, of what he had done, but it nowhere holds that such transcript would have been a “private memorandum” as to the witness who testified. It is further said: “This being the case5 the transcript could at most have been used to refresh the memory of the witness.” “The witness” mentioned and referred to in this sentence is the stenographer or court reporter, and not the witness who had given the testimony at the previous trial. People v. McFarlane, 138 Cal. 481, 71 Pac. 570, 61 L. R. A. 245, rests solely on the authority of Reid v. Reid and People v. Durrant, and gives no other reason whatever for the holding.
I am satisfied that the evidence given by a witness in course of a previous trial and taken by the court reporter does not fall within the purview of sec. 6078, Rev. Codes. It has been held by many courts that such a transcript should not be used for refreshing the memory of a witness. (Bashford v. People, 24 Mich. 244; Brown v. State, 28 Ga. 211; Velott v. Lewis, 102 Pa. 326; Commonwealth v. Phelps, 11 Gray (77 Mass.), 73; Morris v. Lachman, 68 Cal. 109, 8 Pac. 799; Putnam v. United States, 162 U. S. 687, 16 Sup. Ct. 923, 40 L. ed. 1118.)
The question which confronts us in this ease is not an inquiry as to what is the general rule, independent of statute, to be applied in a ease like this, but is rather a construction of see. 6078 of our code. We are not asked to say what the law ought to be, but rather what the legislature has written into the law in this state. The language of the statute is plain and simple, and I submit that by no reasonable analysis *799or interpretation can this statute be so construed as to cover a case like the one at bar.
In the case at bar, I do not think the fact that the witness was allowed to read an answer given by him on a previous trial of the same case was in any respect detrimental to the defendant. The witness did not pretend on either trial to have stated the time of day accurately or as recorded by a timepiece, but merely made an estimate of the time. His explanation as to how he determined the time was before the jury, as well as the uncertainty of his memory and the defendant had the opportunity of cross-examining the witness touching his previous testimony as well as with reference to his memory of the time as he fixed it on the last trial. It was too indefinite and carried too great a latitude to believe that the jury rested a conviction on this change of testimony made after reading in their presence a transcript of the evidence given by the witness at a former trial.
Upon a view of the whole record, I concur in affirming the judgment.