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Opinion by

DEVEREUX, C.

(after stating the facts as above). There was error in excluding the testimony of the stenographer. In Wilmoth v. Wheaton, 81 Kan. 29, 105 Pac. 89, it is said:

“To reproduce the evidence of a witness deceased or absent from the jurisdiction of the court who has testified to the fact in issue on a former trial, it is not error to permit the court stenographer to translate and read his stenographic notes of such evidence in the hearing of the *277 jury, instead of requiring that the notes be transcribed and certified.”

And see Harman v. Territory, 15 Okla. 147, 79 Pac. 765.

If this is taken as impeaching evidence, the reason given by the court for excluding it is unsound, for the witness had been asked if he did not testify to certain facts at the former trial inconsistent with his testimony at the instant trial, and his answer was, as given by the court in- excluding the evidence, that he did not remember. In 1 Greenleaf on Evidence (16th Ed.) sec. 462, it is said:

“But it must statement to be confronted by the inconsistent statement is by hypothesis something said before the inquiry is made of him, and independently of his answer to it. Consequently, it is immaterial that he answers that he does not remember whether he made the inconsistent statement; e. g., if he has testified that A. was at X., a prior statement that A. was at Y. is none the less inconsistent, even though he answers on inquiry that he does not remember saying so; the inquiry is made merely for fairness sake, and not to secure an answer that would be contradictory.” be remembered that**%ie substantial

And see, to the same effect, 2 Wigmore on Evidence, sec. 1037; Crowley v. Page, 7 Car. & P. (Eng. Common Law) 789, where it is said that, if the rule were not so, it would be impossible to contradict a witness who said that he could not remember.

We therefore recommend that the judgment be reversed, and the cause remanded, with instructions to grant a new trial.

By the Court: It is so ordered.

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