(Pro Tempore).
Rawls and Frazier were jointly indicted for murder. Separate trials were held, Frazier’s being the first. He was convicted. On the subsequent trial of Rawls, Frazier testified, even though his case was on appeal and he could have claimed the privilege against self-incrimination. Rawls was convicted of second-degree murder and appealed to this court, whiсh reversed and remanded the case for a new trial.
State v. Rawls,
On Rawls’s second trial, Frazier was called as a witness for the prosecution. On advice of his counsel he refused tо testify, claiming the privilege against self-incrimination. Oregon Constitution, Art I, § 12; U. S. Constitution, amend. V. His claim of the privilege was allowed and, over objection, all of Frazier’s testimony in Rawls’s first trial was read to the jury. Rawls was again convicted of second-degree murder and sentenced.
In this appeal, Rawls asserts that Frazier should have been required by the trial court, rеgardless of his claim of privilege, to testify. He claims that he was constitutionally entitled to be confronted by the witnesses, Oregon Constitution, Art I, § 11, U. S. Constitution, amend. VI. He also claims error in thаt after the claim of privilege was allowed, Frazier’s former testimony was read to the jury. In this connection he cites ORS 41.900(8). Evidence may be given of:
“(8) The testimony of a witness, decеased, or out of the state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter.”
This statute, he states, exclusively lists those situations in which former testimony may be used.
With reference to the first claim of error the weight of authority and the general rule often repeated in American jurisprudence is that by testifying at a preliminary hearing, before a coroner’s jury, before a grand jury, or at a previous trial, a witness does not
*559
waive liis right to claim the privilege at a later trial. This general rule is repeated in varying forms in many cases and most of the works on evidence.
United States v. Miranti, 253
F2d 135 (2d Cir 1958);
United States v. Malone,
When the privilege is claimed, the former testimony may he repеated or read to the court and jury.
Mason et al v. United States,
4 Crim L Rptr 3099 (10th Cir February 4, 1969);
Bridges v. State, State v. Reidie, Exelton v. State, Rose v. The King, People v. Pickett, Johnson v. People,
supra, and
The State v. Stewart,
85 Kan 404,
“* * * [I]f the еvidence meets the common law requirements, it will usually come in even though the permissive provisions of the statute do not mention the particular common law doctrine whiсh the evidence satisfies * * McCormick, Evidence 481, §230 (1954).
Only two cases have come to the court’s attention where the former testimony was excluded after the privilege was claimed.
People v. Lawrence,
168 Cal App 2d 510,
The Dickinson Law Review Comment cited above, published after the briefs were written in this case, discusses in detail questions involved here. It is critical of the general rules, cоntending that where the witness is called in a second trial, he should be forced to testify under threat of contempt. The writer’s theory is that the waiver of privilege given in one trial should be construed as continuing into the next. McCormick, Evidence 274, §130 (1954). What should be done if the witness chooses contempt instead of testifying is not discussed. Regardless, the majority and almost uniform rule is that the witness may avail himself of the privilege at a later trial, and several courts in the cases cited above have specifically rejected the contention that the waiver made at one trial should be construed as continuing into the next.
“ ‘The privilege belongs exclusively to the wit *561 ness, who may take advantage of it or not at his pleasure. * # * If ordered to testify in a case where he is privileged, it is a matter exclusively between the court and the witness. The latter may stand out, and be committed for contempt, or he may submit; but the party has no right to interfere or complain of the error.’ ” Samuel v. People, 164 Ill 379, 387,45 NE 728 (1896).
Defendant Eawls asserts that he has the right to be confronted by the witnesses, including Frazier. He had that opportunity at the first trial and his counsel cross-еxamined. The loss is that the jury in the second trial did not have an opportunity to note Frazier’s demeanor on the witness stand. Largely to accomplish this purpose, OES 136.530 provides thаt testimony shall be oral.
The right to oral testimony and confrontation with witnesses on the part of the defendant, and the right to the privilege against self-incrimination on the part of thе witness, become, at least in some degree, inconsistent constitutional rights in this setting. If neither gives way to the other, justice itself is defeated, for available testimony is denied the cоurt in its quest for truth. Should one give way to the other, and, if so, which? Interpretations of statutes such as OES 43.900 (8), quoted above, attempt to meet this problem, while giving effect to the constitutional rights of both witness and party. This is done by interpreting tine statute to mean not only exactly what it says, but also by ascribing to it the full common law meaning of which it was intended to be declarator ① At common law *562 the former testimony of a witness no longer available could be used. 5 Wigmore, Evidence 163-64, § 1409 (3d ed 1940). In People v. Pickett, supra, which is in point with the instant case on its facts, the court said:
“Availability [of a witness] . . . must be broadly construed in the context in which it is found. This word does not mean physical presence alone, but is definitive of ‘having sufficient force or efficacy for the object,’ whiсh object in this instance, is the attainment of justice through the admission of the witness’s former testimony.”339 Mich at 306 .
In State v. Stewart, supra, also in point on the facts, where the court distinguished the availability of a witness from the availability of his testimony, it held that the availability statutes, such as ORS 41.900(8), which were declaratory of the common law, were aimed at the testimony and not the witness. To the same еffect, see Habig v. Bastian, 117 Fla 864, 158 So 508 (1935) (in this Florida case, the court referred to the Oregon statute, now ORS 41.900(8) and said: * * such statutes have been said to be declaratory of the common law.” 117 Fla at 869). State v. Wilson, 24 *563 Kan 189 (1880); McCormick, Evidence 495, § 234 (1954).
The recent cases of
Whitehead v. State,
4 Crim L Rptr 2294 (Tex Ct Crim App, December 18, 1968);
People v. Berger,
258 Cal App 2d 622, 66 Cal Rptr 213 (1968);
Barber v. Page,
We are satisfied there was no. error in the case at bar.
Judgment affirmed.
Notes
* * The statute was intended to make the general rule, concerning the taking of depositions, inapplicable to criminal trials; but we cаnnot think it was designed to abrogate a doctrine so firmly established and generally applied as that of
*562
permitting the testimony of a witness given in the manner required by statute to be used by еither the State or defense on a subsequent trial, when he has since died or is absent from the State. A strict construction of the language of the section would, perhaps, exсlude such testimony; but it would also exclude the dying declarations of the deceased, which are everywhere admitted, on the ground of necessity. It is for the same reason that the testimony of a deceased or absent witness is admissible, and the technical language of the statute must give way to public policy and necessity. It is just as important for a defеndant that the testimony of a witness in his behalf, given on a former trial, should be competent at a second trial, where the witness is dead or is without the reach of process, as it is fоr the State, and the statute should, we think, be so interpreted as to protect and preserve the rights of both.” State v. Walton,
In this case a federal statute granting the witness immunity against рrosecution if the witness will testify was invoked by the prosecutor. When the witnesses persisted in claiming the privilege in spite of the immunity thus granted, they were held in contempt, and their former testimony was read to the jury. The use of the immunity statute does not prevent the case from being in point. For a similar statute used in a similar situation, see People v. Cassidy,