109 Ark. 359 | Ark. | 1913
The court erred in permitting the testimony of Mrs. Wise, taken before the grand jury, to be read as evidence. The record itself does not recite that appellant consented to the reading of the testimony of the witness, Mrs. Wise, taken before the grand jury, and there is no sufficient showing of consent on the part of appellant to such proceeding in the bill of exceptions.
The court, after hearing the statements of the respective counsel, stated that it was his recollection “that there was an agreement at the last term of the court that the prosecuting attorney would be permitted to read the testimony of the witnessess; that that was the ground for granting defendant a continuance at the former term.”
The statements of the respective attorneys as to the purported agreement on the part of appellant were not under oath, and, at most, on the part of the prosecuting attorney, it was but a statement of his understanding or recollection of what was said by the appellant’s counsel. The appellant’s counsel earnestly denies that' he made such an agreement, and states affirmatively what he did agree to, which was entirely different from the understanding of the prosecuting attorney. The court adopted the understanding of the prosecuting attorney as correct, stating that it was in accord with his own understanding of the agreement.
The showing made by this record is not sufficient to deprive appellant of the right given him under the Constitution, “to be confronted with the witnesses against him. ’ ’ Const, of Ark., art. 2, § 10.
The testimony thus introduced on behalf of the State against the appellant was prejudicial to his rights, and the court erred in admitting it.
Other errors are complained of; which may not occur again, and we deem it therefore unnecessary to discuss them.
For the error indicated, the judgment is reversed and the cause remanded for a new trial.