368
THE GREEN BAG
him. Defendant in a criminal prosecution was deaf, and it was contended that because of this the court committed error in declining to postpone the trial until an expert typewriter could be ob tained to take down the evidence as it was given by the witnesses and furnish it to accused to be read by him. The court holds that in view of the inability of accused to hear the evidence of the witnesses for the state, the judge should permit some reasonable mode of having their evidence communicated to him, but in view of the facts shown in this case, the rights of the accused were not infringed. It was shown that there was no official stenographer, and it did not appear that an expert typewriter could have been obtained without unduly delaying the trial. The court, however, offered to let counsel write down the testimony as the trial progressed, and give it to his client to be read by him, and this is regarded as sufficient to satisfy the requirements of the constitution. Professor Wigmore has made it clear (Wigmore, Evidence 1395 et seq.) that the Constitu tional provision construed in this case secures a common law right and creates no new right; that the common law right was subject to neces sary exceptions, and that the chief purpose of the provision is to secure the right of cross examina tion. Although the cross examination be con ducted by counsel for the accused, the accused himself should hear and understand the testimony and also see the witness in order that the cross examination may be rendered entirely effective by suggestions made by the accused to his counsel. The case decided is closely analogous to the cases frequently occurring where the witness testifies in a foreign tongue and it is held that the Consti tutional privilege is preserved by an interpreta tion in the presence of the accused (see 12 Cyc. 545). The extent to which the accused shall have the advantage of confrontation must, neverthe less, depend upon what is practicable. If the accused be blind he must necessarily lose the advantage of observing the witness's demeanor. If he be dull of comprehension the confrontation will be of less advantage to him than if he be of alert intelligence. Does the provision require more than that the examination shall be con ducted in the presence of the accused in order that he may exercise such faculties as he may possess, aided, as in the present case,' only where aid is practicable. F. I. CRIMINAL LAW. (Manslaughter— Negligence.) Iowa. — State v. Moore, 106 N. W. Reporter, 16, is a conviction of manslaughter based upon facts so unusual that they give rise to one or two other
peculiar propositions of law. Defendant was a professional horse breaker or trainer and while engaged in this occupation a horse escaped from him in the street. Defendant procured another horse which he mounted and rode off in pursuit. During the chase, deceased, who was a man con siderably advanced in years, saw the runaway horse and sought to check him by running out into the roadway and flourishing his cane. Failing in this attempt and while trying to get back to the sidewalk, he was struck by the horse ridden by defendant and received the injuries from which he died. Under these facts it is held that a con viction of manslaughter was proper, the court observing that express intent is not a necessary element of manslaughter, but that negligent and reckless indifference to the lives and safety of others will supply the intent for the purposes of criminal law. It is also said that evidence that defendant was riding at a greater rate of speed than was allowed by ordinance, while not conclu sive, was properly considered in connection with other evidence on the question of defendant's negligence. In response to the contention that in order to convict the defendant of negligently and recklessly causing the death of deceased, the state should have negatived negligence on the part of the latter, the court delivers the holding that contributory negligence is not an excuse or de fense for crime. EVIDENCE. (Witnesses — Self-incrimination.) U. S. S. C. — Several related questions of great growing interest at this particular time are decided in Nelson v. United States (Paper Trust Case), 26 Supreme Court Reporter, 358. The court there determines that evidence, whether documentary or oral, sought to be elicited from witnesses summoned in an action brought by the United States, to enjoin an alleged conspiracy, by manufacturers of paper, to suppress competi tion in violation of the Anti-Trust Act, by creating a general selling and distributing agent is material where it would tend to establish the manner in which such agent executed its functions. It is also held that the materiality of the evidence sought to be elicited cannot justify the refusal of witnesses to obey the orders of the Federal Circuit Court, requiring them to answer the ques tions put to them and to produce written evidence in '.their possession on their examination before a special examiner. A contention resting upon a very shadowy foundation is disposed of by the further holding that the refusal of corporate officers to obey orders of a Federal Circuit Court requiring them to produce documentary evidence on their examination before a special examiner, cannot be justified on the theory that such evi
