It is obvious that the credibiltiy of DeBerry is critical in this case. At two earlier trials when DeBerry testified, the jury was unable to agree. At this trial, when DeBerry was not present but when the transcript of his earlier testimony was read to the jury, defendant was convicted. Because of the facts as found by the trial judge, it was not error to allow the transcript to be used even though it did deprive defendant of the opportunity to further cross-examine the witness and have the jury observe his demeanor. Defendant’s burden was prejudicially compounded, however, by the refusal of the court to allow him to testify about an earlier altercation he had had with the witness. The evidence should have been admitted for the purpose of showing bias.
The record discloses that DeBerry was apprehended by federal officers after defendant’s trial. Every reasonable effort should be made to have the witness present at the retrial of this case.
New trial.