stating that, when the accuracy of a recording device and the identity of a person speaking are fully established, the recording is "as much entitled to be received in evidence as a photograph of an object, a person[,] or a place"
How later courts described this case
- stating that, when the accuracy of a recording device and the identity of a person speaking are fully established, the recording is "as much entitled to be received in evidence as a photograph of an object, a person[,] or a place"
- discussing case law to the effect that, “where the evidence discloses, or it appears likely that it will disclose, several crimes, proof of any one of which supports the charge, the court may in its discretion compel an election by the prosecutor of the specific offense, upon proof of which he intends to rely when it appears that if the application is denied the defendant will be prejudiced or that he will be prevented from properly making his defense”
- admission of confession upheld: “Indeed, a recording has value as evidence which is frequently wanting in a signed confession, for it reproduces the very words ... in [the defendant’s] own voice and with all the added meaning and significance that comes from inflection, emphasis, and the other attributes of speech”
- recorded confession admitted, "Indeed, a recording has value as evidence which is frequently wanting in a signed confession, for it reproduces the very words ... in his own voice and with all the added meaning and significance that comes from inflection, emphasis, and the other attributes of speech”
Written by the judges who cited it.
The opinion
ON REHEARING
*604 Mix & Fenner, Corvallis, for the petition.
Sidney B. Lewis, Jr., District Attorney, and James W. Walton, Deputy District Attorney, Corvallis, contra.
On Appellant’s Petition por Rehearing
LUSK, J.
In an affidavit filed in support of a petition for rehearing it is shown that the appellant moved the trial court for an order directing Benton county to *605 pay the cost of an original and two copies of “the transcript of testimony, instructions, etc., necessary for the appeal”; that the district attorney objected that the county should not be required to pay the cost of copies of the transcript of testimony and that the court on March 1, Í956, ordered the county to pay “the cost of an original copy of the transcript of the evidence”, etc. It is not expressly stated that the appellant is an indigent person, but, in view of the court’s order, we assume this to be the case.
In these circumstances, now called to our attention for the first time, to hold the appellant to a compliance with Bule 30 of the Circuit Court of the Twenty-first Judicial District, which requires service of a copy of the proposed bill of exceptions to be made on the adverse party, would be unwarranted. The objection of the district attorney and the court’s acquiescence in that objection had the practical effect of making compliance with the rule impossible. It would, of course, be highly unreasonable to hold that counsel for the appellant were under any duty themselves to bear the expense of procuring copies of the transcript of testimony.
Counsel have renewed their suggestion that the record be remitted to the circuit court for the purpose of correcting the record by incorporating the transcript of testimony, affidavits and exhibits in the bill of exceptions. In view of the facts as they are now known to this court, the motion will be allowed. But the limits of the powers of the circuit judge in this regard, as stated in our former opinion, must be kept in mind. He cannot now settle a bill of exceptions anew, but can only correct his certificate—if, in fact, it is erroneous or incomplete-—so as to make it conform to what was actually done. The power to make this determination *606 nunc pro tunc is committed to the circuit judge alone. In addition to the cases cited in our former opinion, see McCann v. Burns, 73 Or 167, 171 , 136 P 659 , 143 P 1099 , 143 P 916 , 143 P 1100 ; McGregor v. Oregon R. & N. Co., 50 Or 527, 530 , 93 P 465 ; State v. Jennings, 48 Or 483, 493 , 87 P 524 , 89 P 421 .
In the brief accompanying the petition for rehearing there is disclosed an evident misapprehension on the part of counsel for the appellant respecting the rules of this court. Counsel say that they were misled by “mimeographed instructions circulated by the Supreme Court to assist persons taking appeals.” The so-called mimeographed instructions consist of an outline of our rules adopted June 1, 1955, and which became effective after November 1, 1955, prepared by the Clerk of the Court and designed to aid the county clerks in making up the record on appeal for filing in this court. The particular portion of the outline claimed to have been misleading is a statement in a summary of Buie 7, concerning bills of exceptions in criminal cases, which reads: “do not attach transcript of testimony (to bill of exceptions).” This obviously refers only to the duties of the clerk in respect of the mechanics of making up the record on appeal to be transmitted to this court after the bill of exceptions has been allowed and settled and should not have misled counsel.
This court has no authority to change the statutory rules governing the settlement of bills of exceptions and has not attempted to do so.
Whether the transcript of testimony is physically attached to the bill of exceptions or not, it can only be made a part thereof by the authentication and certification of the trial judge. Neither Buie 3, relating to bills of exceptions in civil cases, nor Buie 7, *607 requires that the transcript of testimony shall not be attached to the bill of exceptions. Further consideration of the subject leads us to the conclusion that since the bill of exceptions and the transcript of testimony, when made a part thereof, constitute but a single document, it is the better practice for counsel to attach them together when the bill is tendered to the clerk of the circuit court and that they should so remain when it is transmitted by the clerk to this court.
The record will be remanded to the circuit court for the purpose hereinabove stated.