State v. . MaynardState v. . Maynard
There was evidence on the part of the State tending to show that on the night of 22 Marсh, 1922, the store of the prosecutors was broken into and several articles of the property described in the bill stolen therefrom, and that the four defendants named in the bill were guilty parties. It further appeared that in May, 1922, at a preliminary trial before the recorder‘s court, defendants being present, Guy Barnes having been duly sworn, testified as a witness, defendants Maynard and McGehee being present, and that personally and by counsel said Barnes was cross-examined in behalf of the defendants now on trial. That said Barnes gave in detail the doings of the four defendants named, on the night the store was robbed, stating, among other things, that the four were in
There was evidence offered on a preliminary inquiry to the effect that some time before the trial Barnes had escaped from custody and was now a fugitive from justice, and that this escape had been brought about by the aid and procurement of the defendants now on trial, and on hearing the evidence, the court so found. The State then introduced the stenographer, who, after being duly sworn, testified that he took the stenographic notes of Barnes’ evidence on the preliminary investigation; that same was taken correctly, and had been accurately transcribed by him, and he had the notes with him, and by the aid of the notes he could give the testimony of Barnes as delivered on the preliminary hearing.
The court having found, as stated, on a preliminary inquiry, that the escape and absence of Barnes was by the aid and procurement of present defendants, allowed the stenographer to state to the jury the evidence of Barnes before the recorder, to which ruling defendants excepted. In connection with this ruling, the stenographer further stated that his notes of the evidence were not read over to Barnes, nor signed by him at the close of his evidence, nor was a copy of same filed with the clerk.
In apt time, defendants, in writing, asked the court to charge the jury as follows: “It is a principle of law that persons charged with the commission of crime аre entitled to be confronted by the witnesses, who shall be examined in the presence of the jury and the parties. This prosecution depends largely upon the testimony of Guy Barnes given before the recorder of Vance County, given upon the preliminary hearing of this case, as statеd by the witness Oliver. This testimony is not admissible, and ought not to be considered by you against the defendant,
There was verdict of guilty agаinst both defendants, judgment, and defendant Maynard excepted and appealed. Defendant Maynard, who alone appeals, objects to the validity of this conviction on account, chiefly, of the admission of the testimony of the stenographer by which the evidence of the accomplice, Barnes, was placed before the jury, and on the ground: (1) that he was not properly confronted with the accusing witnesses; (2) that the evidence of said witness was not completed, attested, or filed as required by the statute in order to a proper receptiоn of such evidence.
In regard to the first position, it is a recognized principle of trials at common law that where, in a judicial proceedings before a court having power to compel the attendance of witnesses, administer oaths, and hear evidence pertinent to the inquiry, a witness has given his evidence and the defendants are present and have the right and have been afforded opportunity to cross-examine the witness, such testimony, when properly attested and verified, may be introduced and used on a second trial of the cause against said dеfendants, where the witness is since dead, or has become hopelessly or permanently insane, or is wrongfully absent from the trial by the acts and procurement of the defendants. And by the weight of authority when the witness has departed from the jurisdiction of the court and become permanently а nonresident. S. v. Bridgers, 87 N.C. 562; S. v. Thomas, 64 N.C. 75; S. v. Valentine, 29 N.C. 225; Mattox v. U.S., 156 U.S. 237-242-244; Reynolds v. U.S., 98 U.S. 145; People v. Elliott, 172 N.Y. 146; Commonwealth v. Richards, 35 Mass. 434; State v. John Nelson, 68 Kansas, 556; Trial of Lord Morley, 6 Howell State Trials, 770.
These authorities proceed upon the principle fully approved with us that in the cases specified, the right and privilege of a defendant in a criminal case to confront the accuser and his witnesses, as contained in
As to the second ground of this objection, our legislation as to these preliminary examinations appearing in
It will be noted that this examination was never either subscribed or certified, nor was it read over to thе witness Barnes or approved by him, said Barnes being then a defendant, and we concur in the view of defendant‘s counsel that the stenographer‘s notes do not comply or come within the provisions of the statute. But a proper perusal of this legislation will disclose that the same is in extension of the common-law principle which we are considering, that its purpose was to make these preliminary examinations, when properly taken, certified, and filed, in the nature of an official record, to be read in evidence on mere identification, and that it does not and was not intended to restrict or trench upon the common-law principle that evidence of this kind, when repeated by a witness under a proper oath, and who can and does swear that his statements contain the substance of the testimony as given by the dead or absent witness, shall bе received in evidence on the second trial. And well considered authority is to the effect that stenographers’ notes, when the stenographer who took them goes on the stand and swears that they are accurate and correctly portray the evidence as given by the witnеss, come well within the principle.
Speaking to this question, in the case of Mattox v. U.S., supra, at p. 244, Associate Justice Brown said: “That all the authorities hold that a copy of stenographic report of his entire former testimony, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of the deceased witness, is cоmpetent evidence of what he said.” And the principle is approved by us in Settee v. R. R., 171 N.C. 440. In that case it was held, among other things, as follows: “The testimony of a witness, stenographically taken
Defendant excepts further to the refusal of the court to give his special prayer for instructions, but such an objection cannot for a moment be sustained. The prayer, as shown above, embodies the proposition, in effect, that although the court on a preliminary hearing and with ample evidence in support of the position had found that the witness Barnes was absent by procurement of the defendant, that the evidence of the witness is inadmissible, and should not be considered by the jury, unless they should find from the evidence that Barnes is absent by the inducement or other act of defendant. And all the authorities on the subject so far as examined are to the effect that this question of admitting the evidence and the pertinent findings preliminary thereto, are for the courts and not for the jury; that they are referred primarily to the sound discretion of the trial judge, and his action thereon will not be disturbed on exception or appeal unless there has been manifest abuse of such discretion. Reynolds v. U.S., p. 145, supra; State v. Wiggins, 50 La. Ann., 330; People v. Bruno Lewandowski, 143 Cal. 574; Rex v. Stephenson, 9th Cox Cr. App., 156.
In the Reynolds case, supra, Chief Justice Waite, speaking to the question, said: “Such being the rule, the question becomes practically one of fact, to be settled as a preliminary to the admission of secondary evidence. In this respect it is like the preliminary question of the proof of loss of a written instrument before secondary evidence of the contents of the instrument can be admitted. In Lord Morley‘s case, supra, it would seem to have been considered a question for the trial court alone, and not subject to review on error or appeal; but without deeming it necessary in this case to go so far as that, we have no hesitation in saying that the finding of the court below is at least to have the effect of the verdict of a jury upon a question of fact, and should not be disturbed unless the error is manifest.” The objection, therefore, is overruled.
Again, on the trial, one of the prosecutor‘s witnesses had testified that McGehee, at the preliminary trial in Henderson, had made the statement and sworn to it that he, McGehee, had been in the front of thе store that was broken into, and counsel for appellant requested the court to instruct the jury that the statement made by McGehee could not be considered as against Maynard. The court gave the instruction with the qualification “unless the circumstances go to show that they were together that night.”
On careful consideration, we are of opinion that no reversible error appears in the record, and the judgment of the trial court is affirmed.
No error.