¶1Dissenting Opinion
¶2Appellant was charged with giving false sworn testimony to the Marion County Grand Jury on August 24, 1966. The sole evidence in the record on appeal of the questions asked appellant and her answers to the Grand Jury consists of a purported transcript of the Grand Jury proceedings, which transcript was read into the trial record in this case by two of appellee’s witnesses. The transcript was never authenticated and the trial court refused to permit it to be introduced in evidence. The trial court did, however, permit the two witnesses to read the transcript on the theory that they were merely using it to refresh their recollection of the Grand Jury testimony of appellant.
¶3There is no question that a witness may use a written memo to refresh his memory concerning past events. Clark v. State (1853), 4 Ind. 156; DeArmond v. Carter (1956), 127 Ind. App. 34, 134 N. E. 2d 239; 3 WIGMORE, EVIDENCE, § 758 (3d ed. 1940). When this is permitted, the evidence concerning the past events is the testimony relating the independent recollection of the witness and not the written memo. In Clark v. State, supra,the Court said:
. “A witness may be permitted to refresh his memory of facts, by referring to a written memorandum, written either by himself or by another, at or near the time of the occurrences; but the memorandum cannot be substituted in the *663stead of the recollection of the witness.” (Emphasis added.) 4 Ind. at 157.
¶4In Southern R. Co. v. State (1905), 165 Ind. 613, 75 N. E. 272, this Court said:
“While it was proper for this witness to refresh or stimulate his memory by reference to the original memoranda, still as a general rule he could not be permitted to testify wholly or entirely therefrom, which, to some extent at least, he apparently did. It was essential that he possess some knowledge or recollection independent of the memoranda, or, in other words, it could not be substituted instead of the recollection of the witness. This is the rule adhered to and enforced at least in this jurisdiction.” (Emphasis added.) 165 Ind. at 625.
¶5See also: Elmore v. Overton (1885), 104 Ind. 548, 4 N. E. 197; U.S. v Riccardi, 174 F. 2d 883 (3d Cir. 1949) ; 3 WIGMORE, EVIDENCE, § 763 (3d ed. 1940).
¶6The major safeguard which minimizes the risk that the memo will create or shape the witness’ memory rather than revive or refresh it, is that after looking at the written memo, the witness must be able to testify from his own memory. To guarantee that the witness is doing that, he must lay the memo aside and testify from memory, and he is not permitted to read the memo into evidence. Otherwise the written memo would be the evidence of the past events and not the refreshed recollection of the witness.
¶7I believe the record clearly shows that the only evidence of appellant’s Grand Jury testimony was supplied by appellee’s two witnesses reading into evidence a purported verbatim transcript of the Grand Jury proceedings. During the questioning of the Grand Jury foreman, he was handed State’s Ex. 1, a purported transcript of appellant's testimony before the Grand Jury, and the following occurred:
“Q. Would you tell the court what questions were asked of Mary Richardson and what answers she gave August 24, 1966 before the Marion County Grand Jury?
A. All the questions, sir?
*664Q. All the questions.
MR. WARD: Your Honor, I will object to the witness reading from the exhibit.
THE COURT: He said he needed it for specific help. Overruled. (Emphasis added.)
* H* H«
THE COURT: Now, the answer to the question, Mr. Witness ?
A. The question to Mary Richardson was, ‘Within the last two weeks. And where was it that you met Dorothy Tucker?’ Mary Richardson’s answer was, ‘I’ve never met her.’ The second question to Mary Richardson, ‘Well, when did you first see her?’ Mary Richardson answered, ‘Never have.’ The third question to Mary Richardson, T understood you to say that you do know her.’ ‘By name’ was the answer by Mary Richardson. The next question, ‘Oh by name, you don’t know her? You do know her name, is that right?’ Mary Richardson’s answer was ‘Yes.’ The next question to Mary Richardson was, ‘When was the first time that you heard her name?’ Mary’s answer, ‘Well, it was about that that me and Mr. Battles broke our relationship.’
MR. WARD: I object, as being irrelevant.
THE COURT: Overruled.
A. The next question to Mary Richardson, ‘Oh. What caused you and Battles to break your relationship?’ Her answer was T had some information that he was a panderer which to my knowledge was supposed to have been Miss Tucker and that’s why I broke my relationship with him.’ The next question, T see. How had you heard that he was a panderer or procurer for Dorothy Tucker, how did you learn that?’ Mary’s answer, ‘Through the newspaper.’ Question to Mary Richardson, ‘You saw it in the newspaper, right?’ Mary’s answer, ‘Yes.’ Next question to Mary, ‘And did you then have a conversation with Don Battles?’ Answer by Mary, ‘Yes, I did.’ Next question to Mary, ‘What did you say to him, what did he say?’ Mary’s answer, ‘I asked him if it was true and he said that it was and I said, well, I didn’t think that you would do such a thing.’ Next question, ‘What else did He say?’ *665Mary’s answer, ‘And while this was going on I said that we should quit going together and that I didn’t want anything else to do with him.’ Next question, ‘What did he say to that?’ Mary’s answer, ‘Nothing he said okay.’ Next question, ‘Where did you have this conversation with him?’ Mary’s answer, ‘At my place.’ Next question, ‘Where you live?’ ‘Yes’ was Mary’s answer. Question, ‘Well, did he just go ahead and leave then?’ Mary’s answer, ‘Yes.’ Next question, ‘You’ve never talked to Dorothy Tucker though, is that right?’ Answer, ‘Yes.’ Next question, ‘Have you ever known a Faith Adams?’ Mary’s answer, ‘No.’ Next question, ‘Have you ever known a girl that went by the name of Faith Adams?’ Mary’s answer, ‘No.’
MR. WARD: No, Your Honor, I move to strike all the testimony. It appears it is the product of a third person. I have no opportunity to cross examine.
THE COURT: Overruled. He said he knew the questions and answers and used that to refresh his memory.”
¶8It is obvious that the witness is reading the transcript verbatim and is not testifying from memory concerning the testimony of appellant before the Grand Jury. The same thing occurred with the second witness, who read the exact same portion of State’s Ex. 1 into the record.
¶9This is not a mere technicality, especially in a perjury case, where the appellee was required to show that appellant’s answers to certain questions were wilfully false. This can only be determined if we know exactly what questions appellant was asked and exactly what she answered. The Grand Jury proceedings were on August 24, 1966, and the trial was on October 2, 1967, over a year later. It may be true that in spite of this time gap the witnesses had an independent recollection of appellant’s testimony before the Grand Jury and could have testified on that basis. However, we have no way of knowing that because their recollection is not placed in evidence and all we have is the reading verbatim of an unauthenticated, inadmissible, purported transcript of the grand jury proceedings. I dissent.
¶10Note.—Reported in 266 N. E. 2d 51.