*1 (2d) W. 562. Harp, S. Appellant. The State Josh Banc, May 1928. en Court m *2 Ely, Wammach, R. Dunneway Cooper
T. M. E. Welborn <& R. for appellant. Curtis, Special As- Attorney-General, and Claud Gentry, T.
North respondent. Attorney-General, for sistant
HTGBEE, C. An filed information was in the Circuit Court County Dunklin May charging with mur- etc., degree he, der in April 5, 3922, deliberately, the. first in that Trving Spinks. and killed changed shot The venue was to Stoddard County jury, resulting the cause was where tried in a verdict finding guilty of murder in the degree, second and as- sessing punishment imprisonment penitentiary for a twenty years. term appeal On the conviction was reversed for failure the trial court manslaughter, to instruct on cause was remanded. Harp, 267 W. Mo. S. [State 845.] *4 19, a of the 3926, guilty retrial cause on was November he found of manslaughter punishment imprisonment and his assessed at in the penitentiary years again for term appealed. of five and he substantially on evidence the second trial was the same as on the first appeal clearly trial On first the the evidence sum- was opinion by marized in the Judge Railey, point and written as no by sufficiency made the on the of the it need not be restated. I. 16, On November defendant 3926, the filed a motion for his 1919,
discharge provisions under 4043, the of Section Revised Statutes bring
because the State |)Cfore to had failed the case to trial en(^ £]ae 0£ the third term of the Circuit of Court County transcript Stoddard after the of the record the had cause filed in the of the clei’k of court said county, been office the of circuit September 13, 1922. which was on Court; County of arc of Stoddard hold'each the Circuit
Two terms Mondays September. March and The. beginning' on second of the veal*, during September 12, the docketed trial on October 1822, for ease was application term term, continued the next of court on of and tried, term, 1923, defendant was At the March found the State. court, of stated. The mandate guilty appealed as heretofore trial, remanding in the reversing and for new was filed the cause 1925, and, January ap- clerk court 28, officeof the of the circuit say, thereafter cause stood for pellant’s learned counsel said trial had had therein. At in said court as no conviction ever been agreement term, by succeeding March was of the cause continued parties application on the absent State on account witnesses. September term, term, 1925, At the March also at the application cause was continued on State on account on hail absence witnesses. The defendant was all out at ready discharge times was for trial. The motion to was overruled. Appellant insists error. this was Section Revised Statutes 1919, reads: any person
“If offense, indicted for and held to answer on bail, brought shall trial not be third before the end term is pending court which cause shall which be held after such indictment found, discharged, he shall be entitled to be so far as offense, relates to such 'delay happened application, unless his by or be occasioned try the want of time to such cause at such third ’’ term. term, We are not September concerned about the at the continuance 1922. If discharged entitled it to be was on ac failing bring count the laches of the State cause trial after the reversal. The first of the three continuances after the reversal at by agreement. Appellant March can term, not blow hot cold; except he cannot to a continuance made with consent, his nor make discharge basis it the for motion under the statute. “The consent the accused will toll the statute.” [State Nelson, 279 S. 401,W. 403.] State, II. The assigns defendant as error that “the use of the testimony of the witness Ben Mercer taken the former trial exceptions, the bill of the witness being State, outside of the violated the defendant’s
unto the of Missouri to meet Constitution face.” against him face to witnesses *5 Mercer were non-residents Missouri and Spinks and Ben
Trying freight Kentucky. They way on trains from their had “bummed” freight Malden, in put off a train Dunklin and at were discovered by defendant, special who was a County, the officer of the railroad Thereupon engaged company. defendant became in an the encounter Spinks with shot and killed him. Mercer and witnessed the homicide for first trial. testified as a witness the State the The three at of his from continuances were ordered account absence the State. error, appears assignment It the terms the as from also from the of exceptions, bill that Mercer’s first evidence at the trial had preserved exceptions been in the bill of and that he was out the by State at the time of second trial. was prosecut- the It shown the ing by attorney, questioned defense, and not that the he the diligently, sheriff had unavailingly, but endeavored to locate Mercer days they that a few the second trial found Mercer’s name before waiting on a of applicants list work in Illinois, for a mine at Herrin, him, but they were unable to find that believed Mercer still On showing objected prosecution alive. this the to reading jury in the the of Ben Mercer as evidence the exceptions, bill of for the reason above mentioned. In McO’Blenis, opin- State in exceptionally an able Mo. Ryuand by Judge (Judge
ion dissenting) it was held that a Leonard deposition hearing upon preliminary committing taken the before a magistrate presence in the accused in be received upon proof the trial witness, of the death of such and that the provision declaring of the Constitution of this in all State “that prosecutions right criminal the accused has the meet witnesses against him illegal. face face” does not render such evidence [See also State v. Barnes, 274 Mo. 204 W. S. 627.] by In Judge State v. 26 Mo. Houser, opinion it was in an held Napton deposition that the upon preliminary of witness taken magistrate, examination committing before- a accused, upon was not proof admissible in that evidence on trial beyond jurisdiction witness was If, however, the court. .of absence of the trial procured witness the defend- ant, deposition would be In admissible evidence. the course Napton opinion, page 436, Judge further, said: “But we find that only authority England is there no which excludes the testi- mony witness, aof deceased accruing under the circumstances McO’Blenis, case country.” but none is to be found are, page they 437: dying declarations, “The admission of as termed, precisely ground occupy seems to the same as that of the deposition of If the deceased witness. Constitution excludes one say it must exclude the other. To that the who must meet dying accused who repeats ‘face face’ is he what the man said, evasion; is a mere the Constitution admits this evasive interpretation dying just easy it is relation to the declarations,
7 deposition the dead to the of of construction rule the same apply ’’ witness. has admissibility dying of declarations not page 43S: On “The case, in this They frequently resorted to questioned. have been been having made suggestion ever been elsewhere, as without as well exclude them provision. To the conflict with constitutional of Eng- in only contrary precedents all be the ground would long adoption of consti- acquiesced the these in since here, land justice that of provisions, be abhorrent to sense but it would tutional safety security 'its public which exclu- regard individual for dying inevitably naught. But declara- set at in eases would sion some circumstances, at common were admissible tions, under certain made repudiated by was not our Constitution law, and that common law deposition adopted to, and cherished. the clause referred but law; permitted at common and the same witness was also the deceased under Constitu- allows the former the interpretation rule which ’’ will admit the latter. tion not, however, do page 439: made in this case we point “The that, McO’Blenis. It be by the case of consider determined considered, provision far to is the as the constitutional referred so deposition just admitting for is as conclusive the one reason the beyond process, reach as other. the is his ease the witness If though (Our utterly were presence he dead.” is as unattainable italics.) jurist deposition upon
Yet the learned of the witness held that preliminary presence examination was accused beyond upon proof at the trial that was inadmissible jurisdiction although just is ob- stated, of the he had what court ‘‘ viously indisputable, beyond proc- is the witness reach that ess, utterly though dead.” his is as he were unattainable as
Again, page P. ‘if 440: “In N. it is said that Buller’s inquest dead, beyond sea, witnesses a examined on coroner’s be or depositions may read, appoint- their be for an officer the coroner is public inquiry behalf ed on about the matters within make jurisdiction.’ In ... Rex 8 Carr. & P. Huyon, beyond seas., deposition being was offered, the witness Coutman, *].,(cid:127) it country said was In this inadmissible consent. unless way. People, decisions 5 Hill, have been same In v. The Beebe 32, absence from was to warrant the State held not admission Ala, deposition. In Tharp v. the same doctrine State, Upon asserted. principles public such policy the admission of extremely depositions, question- witness, the mere absence able, so excluding that them. principle precedent both concur If procured by prisoner absence of the witness was the rule would be different.”
Judge Naiuun upon prior English based his conclusions and Amer- appears deposition, ican decisions. It that a in- taken at coroner’s quest was held be beyond seas, admissible if the be- witness was peculiar importance cause proceedings "some attached to this officer.” Certainly greater dignity importance no or [P. 440.] English can beiongs attach to the of an office coroner than to our *7 court, circuit a court our created and clothed with Constitution general original jurisdiction, and proceeding in the exercise of jurisdiction in its the trial principle of criminal cause. what justice public of or of in policy case, of then, circumstances this preserved can the evidence of in ex- Mercer, the bill of ceptions, be excluded? Law, 53,
In 6 Ruling important Case it is said: "An canon con- struction is that must constitutions be construed with reference to common law. ... It said has been that without reference to this language common law the of the Federal Constitution could not be understood. This is due to the fact that this instrument plan government of the United States were founded the com- England mon law as established in at the time the Revolution. Rights in Bill Phrases taken from the common law therefore must be in construed reference to the latter.” adopted
Since we have the common law in Missouri this rule applicable interpreting construction is in our Constitution. page At 246 of volume, referring same the first ten amend- Constitution, ments to the Federal said: is it is "It well settled that amendments, commonly these ten Rights, known as the Bill of were laj^ not principles intended to down novel of government, but sim- ply embody guaranties certain in- immunities which had we English ancestors, herited from our and which had from time im- subject recognized memorial been to certain well exceptions, arising from of the case. In eorporating principles necessities these inte disregarding the fundamental law there no intention such ex ceptions, they recognized they but if instead have been as had been formally expressed in the text of the amendments.” application principle
The question this to the in is hand con- Ruling' 8 Law, sidered in Case where it is said: "The 88, admission given prior stage in evidence a former trial or of the same proceeding, parties and the are the where the issue same both against hearsay exception to the rule instances—another one —was infringement thought, jurisdictions, time to be an some de- usually right; fendant’s constitutional but this not the view taken present at the The confrontation of the witness at the former time. trial, opportunity cross-examine, had is suffi- compliance requirement, and the cient with the constitutional testi-
9 ,at trial, provided may the witness is given be used mony thus in which Among . . . the circumstances legally available. testimony from is the absence evidence allow this the rules of testified, jurisdiction previously and this is true of the witness who . neglected opportunity an to sub- although prosecution have ’’ jurisdiction. poena him he left the before 995, quoted approvingly 285 to the Brown, In State v. S. W. we great Corpus 839, 2116, from 16 Section where a same effect Juris v. support [See, also, of the text. State array of cases are cited (S. Nelson, D.), N. W. Kan. State Heffernan S.) (N. 25 L. R. and annotations.] A. State, beyond proc- reach of witness Mercer was out of the purposes
ess. To all at the trial was un- intents as attainable as if he was confronted with were dead. The the witness at the former trial and cross-examined him. The Con- reasonably meeting stitution must be construed. This of the witness requirements Rights Bill of face face conforms to respect. exceptions If the bill of case, general rule, admissible as seems to we can one be see *8 why no reason it be excluded the other. There was no error should admitting of the witness at the former trial. The ruling longer Houser, supra, State v. no be followed. shojrld During
1H. jury the examination of the on their voir dire the attorney inquired they prosecuting give testimony would to the a witness offered on a former trial of the ease and exceptions weight they give bill of testimony the same would present testifying such witness if he were before them. Each juror objected answered that he would. in- The defendant to the quiry proper question; being right as hot that the State has no juror inquire bind or to him will how he consider tes- timony credibility, in so far as relates to and for its the reason it give prominence particularity tends to undue unduly and to point particular out objection evidence. Tn The overruled. support of condemning this contention learned counsel cite eases in- single which structions out or comment on the evidence. generally
Tt is deposition believed that of an absent witness given is orally is testimony the consideration that accorded to the by the. jury. purpose delivered of the prosecuting attorney making’ inquiry have been challenges. him say to enable to make his "We are unable to there any prejudicial ruling error in the of the court. assignments disposes This of all of error appel- referred to in counsel; had the benefit of able brief. The lant’s he had a Henwood, OG., judgment is affirmed. Dmis and fair trial concur. opinion adopted
PEE foregoing Higbee, C., CUEIAM:—The except concur, opinion judges as the Banc. All of Court en Graves, J., who dissents. Appellant, v. United Garment Workers Mayes,
Nellie of America
et al. 6 S. W. (2d) 333. Banc, May 18, Court en 1928.