it. Meyers v. United States, 84 U.S.App.D.C. 101, 113, 171 F.2d 800, 812, 11 A.L.R.2d 1. Inasmuch as the defendant herein made no effort to prove the alleged conflicting statements by the means available to him, the requisite necessity for obtaining the transcript was not shown.
We come then to the question whether the defendant should have been permitted to subpoena the reporter who recorded the testimony at the first trial. Although the Sixth Amendment guarantees to the defendant in a criminal case compulsory process, the granting or denial of an application for subpoena at the expense of the United States is in the discretion of the trial court, Austin v. United States, 9 Cir., 19 F.2d 127, citing Goldsby v. United States, 160 U.S. 70, 16 S. Ct. 216, 40 L. Ed. 343. Even where the defendant is not proceeding in forma pauperis, the court may refuse to permit the issuance of subpoenas which it appears may be an abuse of process, until it has been informed what testimony may be expected of the prospective witnesses. May v. United States, 84 U.S.App.D.C. 233, 249, 175 F.2d 994, 1010.
Had the subpoena been permitted, the defendant, at the expense of interrupting- for a substantial period of time- the proceedings in another court then in session, in which the reporter was then serving, would have in effect obtained that which was refused him on his motion for the transcript. The defendant would have delayed proceedings also in the trial court for the length of time it took the reporter to read his notes, all in the mere hope that something useful to the defendant might appear. According to defense counsel's own statement, the cross-examination of one government witness at the first trial took from two and one-half to three hours, so that it would have taken the reporter some time to search through his notes for the contradictory statements which defense counsel now alleges they contain. I am informed by the reporter that it would have taken him from three and one-half to four hours to read through his notes of the prior testimony of the two government witnesses whom defendant charges with contradictory statements. It is obvious that to permit attorneys indiscriminately, under such circumstances and in the midst of a trial, to subpoena a reporter from another branch of the court would so disrupt proceedings as to bring about chaos in administering the courts.
The court does not hold that in no case should an indigent defendant be permitted to prove testimony at a former trial through the transcript of evidence or by subpoenaing the reporter of the former trial; but it does hold that to warrant authorization of such extraordinary procedure there should be an adequate, timely, and definite showing of necessity and that the proffered testimony is substantive and not merely collateral or cumulative. The discretion of the court in granting all or portions of the transcript of a prior trial to an indigent defendant, should be governed by the same considerations as control the court where a defendant demands the transcript of the testimony of government witnesses at a prior administrative proceeding. When it is apparent that no essential ingredient of the offense is in any way dependent upon any matter contained in the transcript and there is no reason to believe that any matter contained therein is a competent, relevant, or material matter of defense, the substantial rights of the defendant are not affected by refusal of the transcript. Boehm v. United States, 8 Cir., 123 F.2d 791, 805, certiorari denied 315 U.S. 800, 62 S. Ct. 626, 86 L. Ed. 1200.
In the instant case, defense counsel argues that he could have proved by the transcript or by the reporter prior contradictory statements by two government witnesses, Detective Hitt and Officer Masters of the Metropolitan Police Department.
Detective Hitt testified that the defendant told him certain fingerprints could not be his 'because he always wore gloves,' and admitted on cross-examination that he did not testify to such admission at the first trial, excusing the omission on the ground he was not asked and denying that he was given an opportunity to tell all admissions of the defendant.
Defense counsel argues as to Detective Hitt's testimony that his failure at the first trial to testify as to the defendant's admission amounted to an assertion of the non-existence of the fact, citing Dorian v. Federal Shipbuilding & Dry Dock Co., 52 A.2d 551, 25 N.J.Misc. 249. In that case the trial court reversed an award by the Workmen's Compensation Board on the ground that the claimant's failure to assert hat he had struck his head when it would have been natural to so state, amounted in effect to an assertion of the non-existence of the fact. It is to be noted that the appellate court reversed the lower court and reinstated the award of the Compensation Board, 136 N.J.L. 302, 55 A.2d 776, stating that the claimant might have thought nothing of the head injury at the time he reported to First Aid, his other injuries being much more obvious. So here, in order for the principle urged by defendant to be applicable, it must have been natural for Detective Hitt to testify to the defendant's admission before his failure to do so will be considered assertion of non-existence of the fact. Defendant's sole purpose in seeking the reporter's notes as to this alleged omission in Detective Hitt's testimony is for the purpose of impeaching his credibility.
Officer Masters, a fingerprint expert, testified that a certain mark on a fingerprint found at the scene of the offense was a temporary scar, and denied that he had testified at the first trial that it could be a permanent scar. At the second trial, the area of the print containing this scar was not used by the prosecution for the purpose of identifying the print as defendant's, and the cross-examination concerning the scar was merely for the purpose of testing the expert's credibility.
It is to be noted that defendant's attorney was permitted to cross-examine each of these witnesses at length and to question them as to the alleged prior contradictory statements, being denied only the transcript or testimony of the reporter as to their statements at the first trial.
Defense counsel cites Ewing v. United States, 77 U.S.App.D.C. 14, 135 F.2d 633, certiorari denied 318 U.S. 776, 63 S. Ct. 829, 87 L. Ed. 1145, in support of his contention that the evidence of prior statements which he sought to introduce for the purpose of impeaching the testimony of these two witnesses was material and not collateral. That decision 135 F.2d 641, states: '* * * when (matter) goes to challenge directly the truth of what the witness had said in matters crucial or material to the issues on trial, by no process of reason can it be held 'collateral." In the instant case, the alleged contradictory statements did not challenge directly the truth of what either witness said in 'matters crucial or material to the issues on trial,' but were brought out in cross-examination merely for the purpose of testing the witnesses' credibility.
However, in an excess of caution, the court, outside of court hours, has checked with the reporter the testimony of the two witnesses at the first trial. It finds that Detective Hitt's answers were responsive to the questions put and that he was not asked any general question which should have elicited all admissions of the defendant.
The court has checked also the former testimony of Officer Masters with reference to the scar in question. The answers of Officer Masters at the two trials considered in their context are not contradictory, particularly in view of the fact that the cross-examiner's line of questioning was extremely confusing. Although Masters refused at the first trial to testify definitely that the mark could not be a permanent scar, on both occasions he adhered to his opinion that the mark was a temporary scar.
Even if it should be held that the court abused its discretion in denying the subpoena, since the prior statements of neither witness were contradictory of his testimony at the second trial, the court's refusal to permit subpoenaing of the reporter and his notes as to their former testimony was not prejudicial to defendant.
For the foregoing reasons the motion for new trial will be denied.
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