People v. Galbraith

Quinn, P. J.

A jury convicted defendant of breaking and entering a housetrailer with intent to commit larceny, MCLA 750.110; MSA 28.305. He was sentenced and he appeals.

All of the issues raised on appeal relate to defendant’s claim that reversible error occurred when the, trial court, over defendant’s objection, permitted the reading of that part of the preliminary examination transcript which contained the testimony of a witness missing at the time of trial. A recitation of the facts relating to the crime would add nothing to our analysis of the procedural problem presented.

The witness whose testimony was involved had escaped from prison and could not be located. Defendant does not question the admissibility of the testimony under MCLA 768.26; MSA 28.1049. Defendant’s contention was and is that because the testimony was electronically recorded prior to transcription, he was entitled as a matter of right to have the recording played to the jury instead of reading the transcript to it. This contention raises a novel question.

After swearing the district court recorder, (qualifying him and identifying the transcript involved, the prosecuting attorney offered in evidence that part of the transcript which contained the testimony of the missing witness. Defendant objected to the offered evidence on the basis of improper foundation and that the transcript was not the best evidence.

MCLA 600.8601; MSA 27A.8601 provides that a district court shall have a recorder or stenographer. MCLA 600.8611; MSA 27A.8611 provides that all proceedings in district court shall be recorded by the recorder by recording devices or by the stenographer. The record establishes that the district court recorder recorded the testimony on his recording device and then transcribed the recording in a transcript thereof. A sufficient and proper foundation was laid.

MCLA 600.8635; MSA 27A.8635 provides:

"An original and copy of the verbatim record of all preliminary examinations in which the defendant is bound over to circuit court for further proceedings, * * * shall be reduced to writing by the district court recorder or stenographer and upon completion thereof shall be filed with the clerk of the district court or with the clerk of the circuit court, as directed by the district court.”

We note that MCLA 600.8601 and MCLA 600.8611, supra, provide alternatively for a recorder or stenographer and recording by recording device or by stenographer but that the only provision for the record of the proceedings is the reduction to writing by the recorder or stenographer of the verbatim record. We conclude that the only statutorily recognized record is the transcript, which eliminates the best evidence argument.

There is merit in defendant’s argument relative to the use of the recording. As stated in People v Sligh, 48 Mich 54, 57 (1882):

"The production of witnesses in open court is one of the best means of trying their credit, and every one knows how difficult it is to judge from written testimony of the demeanor and appearance which would strike those who examined them.”

The recording will not produce the witness, but it will produce the voice of the witness, the inflections, the hesitancy and the pauses, all of which are helpful in assessing credibility. However, until the Legislature or the Supreme Court recognize that merit and by statute or rule provide for the use of the recording, the argument is academic.

Affirmed.

All concurred.