State v. HeffernanState v. Heffernan
Having been convicted of adultery and sentenced to imprisonment in the penitentiary, the defendants in this аction appealed from the judgment of the circuit court and its order denying their applicatiоn for a new trial.
It is contended there was reversible error in allowing the stenographer who reported the evidence on the preliminary examination. to read from his transcript the testimony of cеrtain witnesses who then testified on behalf of the government, but who were absent from the state when the action was tried in the circuit court. As this testimony was extremely damaging to the accused, a reversal is unavоidable if error was committed with respect to its introduction. Appellants’ argument may be summarized thus: (i) The testimony of absent witnesses may not properly be introduced under any circumstances on the trial of a criminal action agamA the defendants’ objection. (2) Assuming there may be exceptions to the rule, thе present case falls within no recognized exception. (3) If it does, a proper foundation wаs not laid in this instance. Our state Constitution declares: “In all criminal prosecutions the accused shall have the right * * * to meet the witnesses against him face to face.” Article 6, § 7. Our Revised Code of Criminal
Numerous dеcisions have been cited by the learned Attorney General which appear to hold that the foregoing requirement of the Constitution may be satisfied by an opportunity to confront and cross-examinе witnesses befoie the examining magistrate, and that a statute authorizing the introduction of testimony taken down in the presence of the accused on the preliminary hearing, to be introduced on the trial when the witnes is dead, insane, or beyond the jurisdictian of the court, might be sustained. Such statutes are in force in sеveral jurisdictions. The one in California reads as follows: “In a criminal action the defendant is entitled: * * * To-produce witnesses on his behalf, and to be confronted with the witnesses against him, in the presence of the court, except that (1) where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness; or (2) where the testimony of a witness on the part of the people, who is unable to give sеcurity for his appearance, has been taken conditionally in the like manner in. the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot,with due diligence be found within the state.” 4 Kerr’s Cyc. Cоdes of Cal. p. 642, § 686. Manifestly, decisions based upon such statutes are not pertinent to the present inquiry.
Thе language of our statute is plain and unambiguous. It contains none of the exceptions found in the Califоrnia Code, and which this court would be required to engraft upon the law of this state in order to sustain this conviсtion. It entitles the accused to-be confronted with the witnesses against him “in the presence of the court.” This means, if it means anything, that the witnesses must appear and testify in the presence of the court wherein the
Believing that, in the introduction оf the testimony of these absent witnesses over timely and proper objections, there was a substantial departure from the mode of procedure prescribed by the Legislature for the trial of criminаl actions, necessarily prejudicial to the substantial rights of the accused, the judgment and order appealed from are reversed, and a new trial ordered.