24 S.D. 1 | S.D. | 1909
The former opinion in.this case, reversing the judgment of the trial court, is reported in 22 S. D. 513, 118 N. W. 1027. Petition for rehearing having been granted the cause is again before this court for all purposes upon reargument of the entire record. There is but one debatable question in the record. The defendants were convicted of the crime of adultery. On the trial in the circuit court certain witnesses, children of tbe defendant Taylor, were absent from this state and beyond the jurisdiction of the trial court, having but a short
It is contended on the part of defendants that the admission of this testimony was in violation of section 7, Code Cr. Proc., which, among other things, provides that: “In a criminal action defendant is entitled) to be confronted with witnesses against him in the presence of the court.” It is evident the learned trial court overruled the objections to the testimony, in question on the theory that it was admissable.under a well-known exception to the “hearsay rule.” The reason for excluding hearsay evidence is that it was not given under the sanction of an oath, and that there was no opportunity for cross-examination. It has long been a settled rule of evidence, as one of the exceptions to the general rule excluding hearsay, that the testimony of a witness given in a former action, or at a former stage of the same action, is competent’in a subsequent action, or in a subsequent proceeding of the same action,' where it is shown that such witness is’ dead, has become insane or disqualified, is beyond the jurisdiction of the court (that is, out of the state), cannot conveniently be found, or has been kept away by the opposite party, where it is also shown that the former giving of such testimony was under oath, and that opposing party cross-. examined or was afforded an opportunity to cross-examine such
Formerly, according to the history of these provisions of the state and federal Constitutions and like statutes, defendants in criminal actions were prosecuted arid convicted upon ex parte
This seems to be the view taken by the courts of last resort of other states having similar statutes. Section 8, Code Cr. Proc. N. Y., provides that the defendant shall be confronted with the witnesses against him in the presence of the court, except that when the charge has been preliminarily examined before a magistrate and reduced to writing - in the presence of the defendant, who has had an opportunity to cross-examine the witness, it may be read in evidence on the trial, where it is shown that the witness is dead or insane, or could not be found in the state. . In effect, the same as section 686, 5 Kerr's Cyc. Code Cal. In the recent case of People v. Elliott, 172 N. Y. 146, 64 N. E. 837, 60 L. R. A. 318, it is held that this section 8, Code Cr. Proc. N. Y., with this exception incorporated, and containing, “in the presence of the court,'' is merely re-enactment -of section 14 of -the New York Bill of Rights, which provides that “the' accused shall be confronted with the witnesses against him,” the exact language of article 6, Const. U. S. Amend, arid the exact legal effect of article 6, § 7, Const. S. D. It is also held in this case that this
Mr. Wigmore, in his valuable work on Evidence, reaches the same conclusion. He has gone into the history and purpose of this question so thoroúghly and to such length that it is impracticable to fully quote the whole of his argument. Volume 2, §§ 1365-1418, inclusive. In the period when? the hearsay rule is being established and ex parte depositions are still used against an accused person, we find him frequently protesting that the witnesses should be “brought face to face” or that he should be “confronted” with the' witnesses against him. The final establishment of the hearsay rule meant that this protest was sanctioned as a just, -one; in other words, that confrontation was required. What was,
This inquiry, the conditions of unavailability of demeanor-evidence by reason of death, illness, and the like, remains now to be made. .But first the effect must be considered of the constitutional sanction in the United States of the principle of confrontation; for this has often erroneously affected the judicial attitude towards demeanor-evidence. In the United States most of the Constitutions have given a permanent sanction to the principle of confrontation by provisions requiring that in criminal cases the accused shall “be confronted with the witnesses against .him” or “brought face to face” with them. The question thus arises whether these constitutional provisions affect the common-law requirement of confrontation otherwise than by putting it beyond the possibility of abolition by an ordinary legislative body. The only opening for argument lies in the circumstance that these brief provisions are unconditional and absolute in form; i. e., they do not say that the accused shall be “confronted” except when the witness is deceased, ill, out of the jurisdiction, or otherwise unavailable, but imperatively prescribe that he “shall be confronted.” Upon this feature the argument has many times been founded that,. although the accused has had the fullest benefit of cross-examining a witness now deceased or otherwise unavailable, nevertheless, the witness’ presence before the tribunal being constitutionally indispensable, his decease or the like is no excuse for dispensing with his presence. That this argument is unfounded is doubtless; and the answer to it may be put in several forms: (i) There never was at common law any recognized right
The former testimony given before any tribunal which can enforce the attendance of witnesses, and administer oaths, and employs cross-examination as a part of its procedure, is admissible. Jones, Ev. 342; Wigmore, 1373. It seems to be generally held that the confrontation and meeting face to face is .sufficient and satisfies the Constitutions where the cross-examination or oppor
Some objection was made to this evidence in question on the ground that the complaint before the committing magistrate alleged the offense to have been committed January 2, 1907, while the information on which defendants were convicted alleged the offense to have been committed June 2, 1907, but we are of the opinion that the precise time was immaterial in a charge of this character, and, besides, the record shows clearly that the offense in relation to which the said witnesses testified on the preliminary examination was the same identical offense of which defendants were convicted under the information. State v. Fordham, 13 N. D. 494, 101 N. W. 888; State v. Rozum, 8 N. D. 548, 80. N. W. 477.