¶1delivered the opinion of the court.
¶2If the appellant had desired to contradict the witness Howard Thomas by the production of his testimony as taken down before the magistrate, he should not then have offered the entire testimony of all the other witnesses taken down by the magistrate, for the reason that there were other witnesses whose testimony was taken down by the magistrate who were not offered as witnessses in the circuit court at all. This would be so if there was now any law authorizing magistrates to take down testimony; but what is conclusive against the competency of the pretended transcript sent up by the magistrate is that there is not now any law, owing to the failure of the legislature of 1900 to enact a section recommended by the Code commissioners, as a substitute for Code 1892, § 1463, and in omitting that section altogether, allowing or requiring a justice of the peace to reduce to writing the testimony of witnesses on a committing trial. This most extraordinary failure on the part of the legis*836lature to enact either the recommended section or Code 1892, § 1163, has resulted in this condition of the law, so that there is not now any authority in law for any justice of the .peace or other conservator of the peace to take down the testimony of the witnesses in writing and certify it up to the circuit court. Consequently the transcript of the. justice of the peace here was ■incompetent for that reason, without, regard to any other reason.
¶3The attention of the next session of the legislature is now and here called to this omission, in order that they may enact the recommended section on the subject, or, at all events, some statute that does properly cover the ground.
¶4The word “confession” in the recommended section, is a clerical error. It should have been “statement.” The language of the recommended section — “and also the substance of the material testimony of all the witnesses examined, including the accused, if he chooses to testify” — was framed by the commissioners of the Code of 1906 in view of what is said in the case of Steele v. State, 76 Miss., 387, 24 South., 910, which case points out the anachronism of taking the “voluntary confession” of the accused, since the accused has been permitted to testify, by the act of February, 1886', in his own behalf.
¶5'Affirmedl