23 Haw. 421 | Haw. | 1916
Lead Opinion
OPINION OF THE COURT BY
(Quarles, J., dissenting.)
This case comes to this court upon the defendant’s bill of exceptions. The defendant has no counsel, and no brief has been filed on his behalf. The record has nevertheless been examined and the only exception which seems to require notice is that which was taken to the admission in evidence of the testimony of one Derda who testified as a witness on a prior trial of the case but who was absent from the Territory at the time of the trial which resulted in the conviction of the defendant.
The defendant was charged with having committed the offense of assault and battery, and, the jury having disagreed, the case was called up again for trial on the 22d
We think the question is to be decided without reference to the statute (R. L. 1915, Sec. 3821) relating to the admissibility of depositions “taken in the preliminary or other investigation of any charge” etc., which, in our opinion, does not apply to this case.
The constitutional right of the accused in a criminal case to be confronted with the witnesses against him is in the nature of a privilege which he may waive. Diaz v. United States, 223 U. S. 442, 450; Republic v. Yamane, 12 Haw. 189, 221. And where it has not been waived the requirement is satisfied when the opportunity has once been accorded and the witness has since become unavailable. “The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used
In 1 Greenleaf Ev. (16th ed.) Sec. 163g, it is said the application of the rule in cases where the witness is ill or
In the case of Motes v. United States, 178 U. S. 458, 474, where a witness for the government who had been in custody was allowed to escape, though it was not shown that
The evidence in the case was conflicting, but the jury, of course, were the judges of the credibility of the witnesses and the weight of their testimony. There was ample evidence to sustain the verdict.
The exceptions are overruled.
Dissenting Opinion
DISSENTING OPINION OF
I am unable to concur in the conclusion reached by the majority, but do concur in the conclusion of the majority that section 3821 R. L., relating to the admissibility of depositions, does not apply to the case at bar.
In my opinion the evidence of the witness Derda was not admissible. All of the authorities agree that the evidence
The position taken in the majority opinion that forsooth the defendant made an objection to the manner in which the jury was being selected and the trial judge then offered to continue the case two weeks and the prosecution asked that it go over for a little longer time or until after the 13th of December, to which the defendant failed to agree, is not sufficient excuse upon which to predicate the admission of evidence not otherwise admissible. Nor was the suggestion made by the trial judge during the trial, that the case could be continued until Derda’s return and the failure of the defendant to agree thereto, sufficient upon which to predicate the admission of evidence not otherwise admissible. To my mind the idea seems novel that it is the duty of the defendant to prepare or help to prepare the case against himself. Such may be correct practice, but to the writer, if it be, it is certainly something heretofore unknown to him.
A careful perusal of the record, which is very lengthy,
This brings us to the principal question in this case. We have no statute making the evidence of an absent witness, given at a former trial, admissible at a later trial, and hence if admissible it must be so under the common law which is in full force in this jurisdiction where a rule of the common law relating to substantive right is binding upon this court until changed by statute (Macaulay v. Schurmann, 22 Haw. 140). All of the authorities agree that if the evidence of a witness given at a former trial in the same case be admitted on some rule of the common law or statute making it admissible, that the constitutional right of the defendant
“It is an incontrovertible rule, that when the witness himself may be produced his deposition cannot be read, for it is not the best evidence. But the deposition of a witness may be read not only where it appears that the witness is actually dead, but in all cases when he is dead for all purposes of evidence; as where diligent search has been made for the witness, and he cannot be found, where he resides in a place beyond the jurisdiction of the court, or where he has become lunatic or attainted” (1 Starkie’s Evidence 310, 311).
In Buller’s Law of Nisi Prius 242, it is said: “And by 1 & 2 P. & M. c. 13 and 2 & 3 P. & M. c. 10 justices of the peace shall examine of persons brought before them for felony, and of those who brought them, and certify such examination to the next gaol delivery; but the examination of the prisoner shall be without oath, and the others upon oath, and these ' examinations shall’be read against the offender upon an indictment, if the witness be dead.”
It was a rule of the common law that if a witness be dead or be diligently sought for and cannot be found (the same as dead to the party desiring his evidence) his deposition, taken in a case involving the same matters and between the same parties, is admissible. Godbolt 326; Bull. N. P. 239.
“Evidence given by a witness in a previous action is relevant for the purpose of proving the matter stated in a subsequent proceeding, or in a later stage of the same proceeding, when the witness is dead, or is mad, or so ill that he will probably never be able to travel, or is kept out of the way by the adverse party, or in civil, but not, it seems, in criminal cases, is out of the jurisdiction of the court, or,*434 perhaps, in civil, but not in criminal, cases when he cannot be found” (Stephen’s Evidence, Art. 32).
Stephen cites as supporting the rule Rex v. Hogg, 6 C. & P. 176; Reg. v. Scaife, 5 Cox Cr. 243, 244; Fry v. Wood, 1 Atk. 444. To the same effect is the decision in Lord Morly’s case decided in the year 1866 and reported in Kel. 53, 55, and the decision in Reg. v. Hagan, decided in 1837, reported in 8 C. & P. 167.
In Reg. v. Scaife, supra, Scaife was indicted with two others on the charge of larceny. One of the defendants, Smith, it appears, contrived to get a witness, one Ann Gar-nett, who had been examined before the magistrate upon the committal of the prisoners, to absent herself from the trial. Her deposition was admitted against all of the defendants. The court of Queen’s Bench in 1851 reversed the judgment as against Scaife and his codefendant, other than Smith, upon the ground that the deposition of said Ann Garnett was improperly admitted in evidence. Lord Campbell, chief justice, in commenting upon the admission of the deposition, said: "Then, is such a document admissible against a prisoner without proof either that the deponent is dead, or that he is kept away by the contrivance of the prisoner, upon the bare ground that the witness is absent and cannot be found? No case has gone so far hitherto, and I should be sorry that we should now make a precedent, which might have the effect of depriving the accused person of the advantage of having the witnesses against him examined personally in the presence of the jury, with full liberty for the accused to examine upon all matters which may be material to his defense.” In the same case Coleridge, J., said: "Before the recent statute (11 & 12 Viet, c. 42), the deposition of an absent witness was only admissible in case of the death of the witness, or his absence being procured by the prisoner. All other cases were in one category, and the depositions of absent witnesses were in
Phillipps on Evidence, pp. 368, 369, says: “Before the statutes of Philip and Mary, a deposition taken before a justice of the county, where a felony was committed, would not have been evidence, even though the witness had died, or was unable to travel.”
“The deposition of a witness, taken upon oath, in the presence of a prisoner, who has been brought before the magistrate on a charge of felony, may be given in evidence on the trial of an indictment for the same felony, if it be proved on oath, to the satisfaction of the court, that the informant is dead, or prevented by sickness from attending, or that he is kept away by the means and contrivance of the prisoner; provided also, that the deposition, offered in evidence, is proved to be the same as was sworn before the justice, without any alteration.”
The common law rule as to admitting the deposition of an absent witness, as amended by the Stat. Geo. 4, c. 65, is stated in 2 Starkie’s Ev., 383, as to preliminary proof, laying the predicate therefor, to be as follows:
“It must also be previously proved that the witness is dead; or that he has been kept away by the practices of the prisoner, or, as has been said, that he is unable to travel. It seems, however, to .be very doubtful whether the mere casual and temporary inability of the witness to attend in a criminal case, be a sufficient ground for admitting his deposition, which affords evidence of a nature much less satisfactory than the testimony óf a witness examined viva voc.e in court, and which might be procured at another time if the trial were postponed.” To the same effect is the text in 3 Russell, Cr. 466.
Colorado has a provision in its constitution authorizing the taking of depositions and their use in criminal cases. In Ryan v. People, 21 Colo. 119, it was held that the provision being a modification of the general rule that upon final trial the accused must be confronted with the witness against him all of the requirements as to the taking of such depositions must be strictly complied with unless waived by the accused. Decisions from the States adopting such statutes are not authority here where the question is whether or not the admission of Derda’s evidence is authorized at the common law. 1 Greenleaf Ev., Sec. 163, is often cited as sustaining the admissibility of evidence when the witness cannot be found. That authority and decisions holding the same thing are not authority authorizing the admission of Derda’s evidence for the reason that Derda could be found; his whereabouts were known, and his return to this jurisdiction was to take place within a few days after the commencement of the trial. There are numerous decisions holding that under such circumstances the party desiring his evidence should move for a postponement of the trial. The bare suggestion that a trial be postponed is not an application for a postponement. The matter of postponing a trial is largely in the discretion of the trial court, as has been held by this court (Waldeyer v. Wailuku Sug. Co., 19 Haw. 245), and, as heretofore suggested, a mere oral request by the prosecuting attorney, or a suggestion by the court, although not agreed to by the defendant, does not waive any right as to postponement or as to the admissibility of evidence if the trial proceeds. An
“The principle upon which depositions and former testimony should be resorted to is the simple principle of necessity, — i.e. the absence of any other means of utilizing the witness’ knowledge. If his testimony given anew in court cannot be had it will be lost entirely for the purposes of doing justice if it is not received in the form in which it survives and can be had. The only inquiry, then, need be: Is his testimony in court unavailable? We may of course distinguish further between testimony unavailable by any means whatever and testimony unavailable without serious inconvenience. The common law rulings certainly stopped at unavailability of the former sort; conditions of the latter sort rest wholly on statutory sanction.”
A statute in Georgia authorizes the introduction of evidence given by a witness at a former trial when his presence is unavailable (Atlanta & C. A. R. Co. v. Gravitt, 20 S. E.-Ga.-550).
Before referring to other decisions I will briefly review the principal authorities relied on to support the majority conclusion in this case. In People v. Bird, 132 Cal. 261, the witness was dead. What the court said as to the rule at common law when a witness was out of the jurisdiction was purely obiter, as a statute of California permitted the use of evidence given at a former trial under the circumstances. In People v. Droste, 160 Mich. 66, the absent witness was sick at home and could not attend. The defendant had refused to go to her home to be present at the taking of the deposition and have the opportunity to cross-examine. In State v. Walton, 53 Ore. 557, one witness was dead, the other beyond the jurisdiction of the court — whether permanently or temporarily does not appear. The court only considered the constitutional question of confrontation and cross-examination. This decision also was under a statute making the evidence given at a former trial admissible. In State v. Moeller, 24 N. D. 165, the witness was shown to be
In addition to the long line of Alabama cases holding that the absence of a witness from the jurisdiction at the time of a second trial does not furnish a sufficient predicate for admitting his evidence given at a former trial, unless his absence from the jurisdiction is shown to be permanent, see Berney v. Mitchell, 34 N. J. L. 337; Gerhauser v. N. B. & M. Ins. Co., 7 Nev. 174; Vandewedge v. Peters, 83 Neb. 140, 143; State v. Houser, 26 Mo. 431.
In Kirchner v. Laughlin, 5 N. M. 365, 368, it is held that the evidence of a witness at a former trial, taken by the court stenographer, is hearsay evidence in the absence of a statutory provision declaring it to be evidence. A statute in Alabama permitted the accused to take depositions in certain cases. The accused took some depositions but did not offer them in evidence; the State offered them and the trial court admitted them. This was held to be reversible error (Anderson v. State, 7 So.-Ala.-429). In State v. Chambers, 10 So. (La.) 886, the deposition of a sick witness was
In Forney v. Hallagher, 11 S. & R. 203, the deposition of a witness was taken by consent in arbitration proceedings. On appeal and trial de novo, held, that the deposition was not admissible without showing the witness was dead or without the jurisdiction. In Giberson v. Mills Co., 41 Atl. (Pa.) 525, the evidence of a witness for the defendant was offered by the plaintiff and admitted, it being shown that the witness was out of the State. The only objection made to the introduction of his former evidence was that the plaintiff had not shown diligence to procure his attendance and had not caused subpoena to issue for the witness. In Benson v. Olive, 2 Str. 920, the English court held that a deposition taken fifty years prior to the trial, and offered without proof of the death of the witness, was inadmissible.
Some decisions not heretofore cited, which are in harmony with my views and out of harmony with the views of the majority, are as follows: State v. Wing, 66 Ohio St. 407, 415; Collins v. Com., 12 Bush 271, 273; State v. Hall, 6 Baxt. (Tenn.) 522; State v. Nelson, 68 Kans. 566; People v. Newman, 5 Hill (N. Y.) 295; Brogy v. Com., 10 Grat. 722; Owens v. State, 63 Miss. 450; Bergen v. People, 17 Ill. 425; United States v. Angell, 11 Fed. 34; Finn v. Com., 5 Rand. 701; Pittman v. State, 17 S. E. (Ga.) 856.
In my opinion no decision can be found, unless it be