1 preliminary examination is not admissible on a subsequent trial.19 Indeed, it has been asserted that nothing short of the witness's death. can be received to let in his testimony given on a former trial.20 But the great weight of authority establishes the rule that the testimony of a witness who was examined on the former trial of a criminal charge, or on the preliminary examination thereof, an opportunity to cross-examine being afforded to the accused, is admissible on the subsequent trial, on proof that the witness is absent from the state, either permanently, or for such an indefinite time that his return is merely contingent or conjectural.1 Of course in any case where it appears that the absence of a witness is by the procurement of the prosecution, the trial court should protect the defendant and refuse to permit the use of the former testimony, not because of the constitutional requirement referred to, but because the ordinary rules of evidence require the presence of the witness if it can be had, and a party procuring the absence of a witness should not be permitted. to derive an advantage from it. The constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if he wrongfully procures the absence of a witness, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated. The mere fact that a witness People v. Elliott, 172 N. Y. 146, E. 837, 60 L.R.A. 318. 1-Sims v. State, 139 Ala. 74, 36 So. 138, 101 A. S. R. 17; Henry v. State, 10 Okla. Crim. 369, 136 Pac. State, 580 Notes: 65 Am. Dec. 676; 61 A. S. R. 887; 129 A. S. R. 42; Ann. Cas. 1913C 465. 2. State v. Nelson, 68 Kan. 566, 75 Pac. 505, 1 Ann. Cas. 468. 3. Diaz v. United States, 223 U. S. 442, 32 S. Ct. 250, 56 U. S. (L. ed.) 500, Ann. Cas. 1913C 1138; Parker v. People, 13 Colo. 155, 21 Pac. 1120, 4 L.R.A. 803; Sullivan v. State, 6 Tex. 982, 52 L.R.A. (N.S.) 113; Sullivan v. App. 319, 32 Am. Rep. 580; Robert- Grant V. 808. Notes: 65 Am. Dec. 676; 129 A. S. presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.10 The circumstances that a juror was withdrawn on the first trial, and no verdict found, cannot vary the question, for the evidence derives its weight alone from the circumstance that it was given on oath, when the parties had in opportunity of examining and cross-examining the witness.11 210. Nature of Former Proceedings.-Former evidence to be admissible under the rule in question must have been introduced in the regular course of a judicial proceeding,12 before a tribunal capable of enforcing the attendance of witnesses, administering oaths, and employing cross-examination as a part of its procedure. 18 It must also appear that the party to be affected by such evidence was a party to such former proceeding, 14 and that the issue in the former proceeding was the same as that in the subsequent trial.15 The courts have refused to permit the introduction of the testimony of a deceased or absent witness given on a former trial unless it is clearly shown that the accused had an opportunity to cross-examine the witness on that trial.16 In some jurisdictions, it is held that the accused is not given a full opportunity of cross-examination at the preliminary hearing, and hence evidence given in course thereof is held to be inadmissible at the trial.17 However, some courts have taken a different view, and hold that the right of the accused to be confronted with the witnesses against him is afforded by conferring the right at the preliminary hearing. 18 211. Absence of Witness.-In some jurisdictions it has been held, that the testimony of an absent witness given on a former trial or 10. State v. Heffernan, 24 S. D. 1, 123 N. W. 87, 140 A. S. R. 764, 25 L.R.A. (N.S.) 876; State v. King, 24 Utah 482, 68 Pac. 418, 91 A. S. R. 808. v. Hill, 2 Hill L. (S. C.) 607, 27 Am. Dec. 406; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580. 15. Childers v. State, 30 Tex. App. 160, 16 S. W. 903, 28 A. S. R. 899; 11. State v. De Witt, 2 Hill L. (S. Somers v. State, 54 Tex. Crim. 475, C.) 282, 27 Am. Dec. 371. 12. State v. Hill, 2 Hill L. (S. C.) 607, 27 Am. Dec. 406; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580. 13. State v. Heffernan, 24 S. D. 1, 123 N. W. 87, 140 A. S. R. 764, 25 L.R.A. (N.S.) 876. 14. Com. v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608; State 113 S. W. 533, 130 A. S. R. 901. 16. State v. Hill, 2 Hill L. (S. C.) 607, 27 Am. Dec. 406; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580; Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 A. S. R. 989, 13 Ann. Cas. 969. Note: Ann. Cas. 1913C 464. preliminary examination is not admissible on a subsequent trial.19 Indeed, it has been asserted that nothing short of the witness's death can be received to let in his testimony given on a former trial.20 But the great weight of authority establishes the rule that the testimony of a witness who was examined on the former trial of a criminal charge, or on the preliminary examination thereof, an opportunity to cross-examine being afforded to the accused, is admissible. on the subsequent trial, on proof that the witness is absent from the state, either permanently, or for such an indefinite time that his return is merely contingent or conjectural. Of course in any case where it appears that the absence of a witness is by the procurement of the prosecution, the trial court should protect the defendant and refuse to permit the use of the former testimony, not because of the constitutional requirement referred to, but because the ordinary rules of evidence require the presence of the witness if it can be had, and a party procuring the absence of a witness should not be permitted to derive an advantage from it. The constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if he wrongfully procures the absence of a witness, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated. The mere fact that a witness 19. Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580. Notes: 65 Am. Dec. 676; 61 A. S. R. 886; Ann. Cas. 1913C 464. 20. People v. Elliott, 172 N. Y. 146, 64 N. E. 837, 60 L.R.A. 318. 1. Sims v. State, 139 Ala. 74, 36 So. 138, 101 A. S. R. 17; Henry v. State, 10 Okla. Crim. 369, 136 Pac. 982, 52 L.R.A. (N.S.) 113; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580; Somers v. State, 54 Tex. Crim. 475, 113 S. W. 533, 130 A. S. R. 901; Robertson v. State, 63 Tex. Crim. 216, 142 S. W. 533, Ann. Cas. 1913C 440; Grant v. State, (Tex.) 148 S. W. 760, 42 L.R.A.(N.S.) 428; State v. King, 24 Utah 482, 68 Pac. 418, 91 A. S. R. 808. Notes: 65 Am. Dec. 676; 61 A. S. R. 887; 129 A. S. R. 42; Ann. Cas. 1913C 465. 2. State v. Nelson, 68 Kan. 566, 75 Pac. 505, 1 Ann. Cas. 468. 3. Diaz v. United States, 223 U. S. 442, 32 S. Ct. 250, 56 U. S. (L. ed.) 500, Ann. Cas. 1913C 1138; Parker v. People, 13 Colo. 155, 21 Pac. 1120, 4 L.R.A. 803; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580; Robertson v. State, 63 Tex. Crim. 216, 142 S. W. 533, Ann. Cas. 1913C 440; State v. King, 24 Utah 482, 68 Pac. 418, 91 A. S. R. 808; Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 A. S. R. 989, 13 Ann. Cas. 969. Notes: 65 Am. Dec. 676; 129 A. S. R. 42. was not placed under subpoena does not raise a presumption of bad faith or amount to such a lack of diligence as of itself to forbid the use of his testimony given at a former trial.* 212. Disability or Death.-In the case of illness or insanity or other physical or mental disability there has been considerable contrariety of opinion. According to the rule followed in the better reasoned cases mere temporary illness or disability of the witness, where there is prospect of recovery, is not sufficient to justify the reception of the former testimony, but it must appear that the witness is in such a state, either mentally or physically, or both, that in all reasonable probability he will never be able to attend the trial. When this fact satisfactorily appears it is considered that the situation is practically the same as if the witness were dead. The right of an accused to be confronted by the witnesses against him is not violated by admitting testimony given at the preliminary examination or on a former trial for the same offense by a witness since deceased, whom the accused had the opportunity to confront and cross-examine at the preliminary examination or former trial. And where a witness who testified on a former trial is dead, and that fact is shown at a subsequent trial, the admission of the evidence given on such former trial does not violate the rule against hearsay evidence.7 213. Proof of Death, Disability or Absence.-Before testimony given by a witness at a former trial or on preliminary proceedings can be admitted in evidence, however, a sufficient foundation must be laid for its admission. It must be shown either that the witness is dead, or beyond the jurisdiction of the court, or on diligent inquiry cannot be found, or that some other circumstance exists authorizing the admission of such testimony. The sufficiency of the predicate 4. State v. Nelson, 68 Kan. 566, 75 Pac. 505, 1 Ann. Cas. 468. 5. Marler v. State, 67 Ala. 55, 42 Am. Rep. 95; State v. Staples, 47 N. H. 113, 90 Am. Dec. 565; Robertson v. State, 63 Tex. Crim. 216, 142 S. W. 533, Ann. Cas. 1913C 440; Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 A. S. R. 989, 13 Ann. Cas. 969. Notes: 61 A. S. R. 887, 888; 129 A. S. R. 40. 6. Com. v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608; State v. MeO'Blenis, 24 Mo. 402, 69 Am. Dec. 435 and note; People v. Elliott, 172 N. Y. 146, 64 N. E. 837, 60 L.R.A. 318; Brown v. Com., 73 Pa. St. 321, 13 Am. Rep. 740; Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 A. S. R. 989, 13 Ann. Cas. 969. Notes: 25 L.R.A.(N.S.) 869; 1 Ann. Cas. 471. 7. Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Territory v. Evans, 2 Idaho 651, 23 Pac. 232, 7 L.R.A. 646; Com. v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608; State v. Staples, 47 N. H. 113, 90 Am. Dec. 565; State v. Hill, 2 Hill L. (S. C.) 607, 27 Am. Dec. 406; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580; Robertson v. State, 63 Tex. Crim. 216, 142 S. W. 533, Ann. Cas. 1913C 440 and note; State v. King, 24 Utah 482, 68 Pac. 418, 91 A. S. R. 808; Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 A. S. R. 989, 13 Ann. Cas. 969. Notes: 65 Am. Dec. 676; 69 Am. Dec. 440; 61 A. S. R. 888. 8. Maloney v. State, 91 Ark. 485, laid for the purpose of admitting testimony given at a former trial is a matter resting largely within the discretion of the trial court, and in the absence of a showing that such discretion has been abused the appellate court will not interfere. Where it is sought to introduce the evidence of a witness taken on a prior trial, based on the fact of his death, this death must be shown as a fact; 10 and general reputation of the death of the witness is not sufficient to establish that fact so as to permit of the introduction of the testimony given by him at a former trial.11 Likewise the mere return on a subpoena that the witness could not be found or is dead is insufficient to justify the admission of evidence given on a former trial.12 214. Manner of Proving Former Testimony.-There is some conflict of opinion as to the degree of exactness required in detailing the testimony of a witness given on a former trial. Some courts are very and perhaps unreasonably strict in requiring that the whole of what the witness said be proven, insisting that the very words of the witness are to be recited.18 It is admitted that this strictness will generally exclude such testimony; for if the evidence of a witness was minute and protracted and related to a transaction which was of a complicated character, it would seem to be almost incredible that any person should be able with certainty to recite it.14 A better rule declares that it is sufficient in such a case to prove by the witness called, substantially what the witness at the former trial testified upon the particular subject of inquiry.15 According to one view, in a criminal prosecution the statements must be proved by living witnesses who speak from their own recollection of what the deceased witness said; 16 and neither the notes of the presiding judge, nor of the attorney-general, nor any one else, of the evidence given on the former trial, are of themselves evidence.17 On the other hand it has been ruled that the notes of counsel, showing what a witness testified to on a former trial between the same parties touching the same subject-matter, are evidence when proved to be correct in substance, although the counsel does not recol 121 S. W. 728, 134 A. S. R. 83, 18 Note: Ann. Cas. 1913C 464. 9. Note: 17 Ann. Cas. 77. (Mass.) 434, 29 Am. Dec. 608. 15. Brown v. Com., 73 Pa. St. 321, 13 Am. Rep. 740. Note: 29 Am. Dec. 612. Where the testimony of a deceased witness is reproduced, it is not com 10. Driggers v. U. S., 21 Okla. 60, petent to show that he had confessed 95 Pac. 612, 17 Ann. Cas. 66. 11. Note: 17 Ann. Cas. 76. 12. State v. McClellan, 79 Kan. 11, 98 Pac. 209, 17 Ann. Cas. 106; Driggers v. U. S., 21 Okla. 60, 95 Pac. 612, 17 Ann. Cas. 66. that his evidence was false. Craft v. Com., 81 Ky. 250, 50 Am. Rep. 160. 16. Kean v. Com., 10 Bush (Ky.) 190, 19 Am. Rep. 63; State v. De Witt, 2 Hill L. (S. C.) 282, 27 Am. Dec. 371. Note: 65 Am. Dec. 676. 13. Com. V. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608 and note. 17. State v. De Witt, 2 Hill L. (S. 14. Com. V. Richards, 18 Pick. C.) 282, 27 Am. Dec. 371. |