specially concurring:
I concur in the result reached by Mr. Justice White and' in his-.'dpinion, except in so far as the views I herein express may conflict with or modify it.
It appears from the record in this case that at the trial an official stenographer was present and took down the testimony in shorthand, and that afterwards his shorthand notes were unintentionally destroyed. Apparently these notes were unwittingly picked up by some member of the stenographer’s family at his home and with other papers, supposed tó- be of no value, thrown into a fire. Anyway the stenographer could not find them, and, therefore, could not furnish the testimony as is usual -in -such cases. Neither the defendant nor anyone for him had anything to do with the loss or destruction of these notes. Section 1472, Rev. Stats., provides that the judge of each judicial district may appoint a shorthand reporter to attend during any term of court and on the direction of the court take down in shorthand the testimony and other matters occurring at the trial. This section was in the General Laws of 1877, the General Statutes of 1883 and -all statutes since. For years it has been the invariable custom for district judges to appoint stenographers for their respective districts to .appear at every criminal trial, and under- the court’s direction, take down the.testimony and other matters, and when a defendant-wanted a bill of exceptions, containing- all of the testimony in *131a case, if desired, it has been the custom invariably to obtain it from the stenographer. In accordance with that custom, and by virtue of the statute, a stenographer was present and was •directed to take down the testimony in this particular case, and he did take it down. The defendant had the right, unlder such circumstances to assume that he would obtain-the'testimony from this stenographer for his bill of exceptions, tie was not called upon to make any other arrangements than were, in virtue of the statute, provided by the direction of the court trying him, nor to anticipate that he would be called upon to procure that testimony from any other source, nor compelled to depend upon the uncertain memory of those present as to what the testimony was. In this condition of affairs, without any fault of his own, he was deprived of this statutory and usual, and in this case particular, source for obtaining the testimony for his bill of exceptions, solely on account of the fault of an official of the court, who did not properly care for 'his notes. It is for this reason that the testimony does not appear in the bill of exceptions. Of course he might have collected together some persons who were present at the trial, who might have detailed to him their version of what the testimony was, and the judge of the court, upon his own memory and the memory of these persons, may have put into the bill of exceptions something which they thought was the testimony.
It cannot be the law of this state that the defendant, under sentence of death, must suffer for the fault of the court stenographer, whose duty it was to preserve his notes, nor that the defendant, by reason of such official neglect, was compelled to resort to an uncertain and antiquated method df obtaining the testimony for his bill of exceptions, which has long ago been discarded in the practice in this state. If the defendant or his attorney were to blame for the loss of the notes, or if the stenographer had the notes and the defendant had 'failed or neglected to have them extended and put into the bill of exceptions, that is if the absence of the testimony from the *132bill of exceptions was caused by any fault, neglect or wrong of the defendant, an entirely different question would be presented. Here, the absence of the testimony is the fault of the official of the court, and not of the defendant. Unde, suck circumstances, it is'the law, in my judgment, that the instructions can be reviewed, notwithstanding the absence of the testimony. To say that they can not be is to take away from defendant the right of review, on account of the fault of the other party to the litigation. It was the officer of the court who was to blame for the condition of the record. Through no fault of his, but by reason of the officer’s fault, it was impossible for the defendant to obtain the testimony and put it into his bill of exceptions, in accordance with the recognized practice in this state. He was entitled to. pursue that practice, and was not required to resort to some discarded one. To say that he is cut off from his right to have the instructions reviewed, on account of the absence of the testimony, is to say that the prosecution, The Pe’ofle, shall profit by the fault of their official and that the defendant shall bear the burden of their faultl In the cases wherein this court has said that instructions can not be reviewed in the absence of the testimony no such circumstances existed as are here presented to. account for such absence, and they are, therefore, not. applicable. Let him who is at fault bear the resulting burden.
Therefore, forasmuch as the absence of the testimony was occasioned by the neglect of the court official, which neglect rendered the recognized and established practice impossible, it should be conclusively presumed as against the people that there was. evidence that would warrant the jury in returning7 a verdict of murder in the second degree, because the court instructed in that degree. This being so, the defendant was entitled to a correct instruction. As Instruction No. 12 ■ was erroneous, for the' reasons stated by Mr. Justice White, the error could not be otherwise than prejudicial in the state of the testimony.