#### Fuson v. Commonwealth.

(Decided January 26, 1915.)

Appeal from Whitley Circuit Court.

1. Criminal Law — Trial—Continuance—Absent Witnesses — Diligence. — Where in a criminal prosecution an affidavit for continuance on the ground of absent witnesses fails to show that subpoenaes for the desired witnesses were placed in the hands of the sheriff for service, such a showing does not establish due diligence on the part of the defendant in securing the absent witnesses, sufficient to- entitle him to .a continuance.

*3422. Trial — New Trial — Newly Discovered Evidence. — A new trial will not be granted because of newly discovered evidence, where very little, if any, of tbe newly discovered evidence relied on is competent, and tbe facts alleged are not sufficient to sbow tbat tbe evidence could not have been discovered prior to the trial by the exercise of reasonable diligence.

3. Appeal — Transcript—Certificates—When to be Signed. — Tbe practice of signing certificates to be appended to tbe transcript of evidence before the transcript is prepared or filed is disapproved.

STEPHENS *&*STEELY for appellant.

JAMES GARNETT, Attorney General, and ROSE & POPE for appellee.

OpxnioN op the -Court by

William; Rogers Clay, Commissioner

Affirming.

Defendant, Lida Fnson, was found guilty of obtaining property by false pretenses, and asks a reversal of tbe judgment of conviction.

Tbe facts are these:

Prior to tbe commission of tbe offense with wbicb he is charged Fuson bad executed two notes to James Wynn, one for $400 and one for $200. Wynn became ill, and Alice Wynn, bis wife, placed tbe notes in tbe keeping of her father, William Carpenter. According to the evidence for the Commonwealth, Fuson went to Wynn’s home to inquire about tbe notes. Wynn was unconscious, and Fuson was told- tbat William Carpenter bad tbe notes. Fuson then went to William Carpenter and told him tbat Alice Wynn, bis daughter, bad sent him there to get tbe notes. This statement was false. Carpenter, be lieving tbe statement, and relying thereon, delivered tbe notes to Fuson. At tbe same time Fuson gave Carpenter a cheek for $500, stating tbat he bad tbat amount of money in tbe bank on wbicb it was drawn. Fuson claims that tbe two notes represented borrowed money and tbat tbe $200 note should have been for $100. He also claims tbat be bad paid Wynn about $325 on tbe two notes, and owed only a balance of about $170. He denies telling Carpenter that Alice Wynn bad sent him for tbe notes. He denies executing a $500 check, and claims tbat the check which be actually delivered was for $170, and tbat be bad sufficient money in bank to pay this note.

Defendant insists tbat the trial court -erred in refusing a continuance. His affidavit shows tbat be gave to jibe clerk a few days before tbe trial a written memoran*343dum containing the names of certain witnesses, with directions to issue subpoenaes for them, hut he did not know whether they had ever been issued or served. As the affidavit did not show that the requested subpoenaes had ever been placed in the hands of the sheriff for service, it is manifest that due diligence was not used by the defendant in securing the attendance of the absent witnesses. Notwithstanding this fact, however, the trial court permitted the affidavit to he read as the deposition of the absent witnesses. Under these circumstances, the defendant cannot complain of the court’s refusal to grant a continuance, because the action of the court was more favorable to him than the circumstances warranted.

It is next insisted that the court also erred in refusing to grant a new trial. The affidavit being very long, we deem it unnecessary to copy it in full. It is sufficient to say that very little, if any, newly discovered evidence relied on was competent, and the facts alleged are not sufficient to show that the evidence could not have been discovered prior to the trial by the exercise of reasonable diligence.

As the court did not err in refusing either a continuance or a new trial, and the indictment and instructions are not subject to criticism, and the evidence is sufficient to sustain a conviction, we see no reason for disturbing the judgment.

Before closing this opinion we deem is necessary to discuss a question affecting the transcript of evidence. It appears that the stenographer’s certificate appended to the transcript, wherein she certifies that “the foregoing is a complete transcript of the evidence heard on the trial of the case of Commonwealth of Kentucky v. Lida P. Fuson, as appear from my stenographic notes taken on the 7th day of the September term, 1914, of the Whitley Circuit Court, and all the objections, exceptions and avowals made during the trial of said case,” is on a separate page from the transcript, and was signed by the stenographer on October 24,1914. Following the certificate is the certificate of the circuit judge, signed on said date, wherein he certifies that “the foregoing transcript of evidence has been examined, approved and signed by me as the judge before whom the trial was had at the September term, 1914, of the Whitley Circuit Court.” It is admitted by counsel, and the facts show, that these two certificates were signed prior *344to the time that the transcript was filed, or even prepared. It farther appears that this method of certification has long been the practice of that court, and was adopted for the convenience of the court and the parties to the action. Manifestly the very purpose of the certificates is to establish the integrity of the record by showing that the transcript is in fact what it purports to be. Therefore, certificates signed before the transcript is even prepared, though with the expectation that the transcript will thereafter be inserted in a place left for that purpose, utterly fail to accomplish the’ purpose for which they are required. Though no advantage of the opportunity may be taken, it must be conceded that an opportunity for tampering with the transcript is fully afforded by the practice in question, which necessarily leaves, the minds of the members of this court in doubt as. to, the verity of the record which they are called on to consider. Under the circumstances, therefore, we would be derelict in our duty if we did not express our unqualified ..condemnation of the method of certification employed in this case.

Judgment, affirmed!..