Davis v. State
| Citation | 201 P. 1001,20 Okla.Crim. 203 |
| Decision Date | 23 November 1921 |
| Docket Number | A-3647. |
| Parties | DAVIS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where the accused at a former trial or at a preliminary hearing once enjoyed his right to be confronted by a witness against him and had the privilege of cross-examining the witness, if at a subsequent trial, involving the same issues, it satisfactorily appears that the witness has died, become insane, or has permanently left the state without collusion or procurement of either party and that his presence with due diligence cannot be had, or where the witness is sick and unable to testify, or his whereabouts cannot with due diligence be ascertained, a transcript of the testimony of such witness may be introduced as the evidence of such absent witness.
(a) Having once been confronted with a witness, and having had the right to cross-examine him, the admission of such transcript in evidence is not in violation of the constitutional right of the accused to be confronted with the witnesses against him.
Where it appears that the attendance of a resident witness could have been had by the exercise of due diligence, the mere showing that on the day of trial the witness is temporarily in another state on private business is not a sufficient predicate to authorize the reception of his evidence taken at the preliminary hearing.
Where the accused is charged with larceny and the possession of the stolen property is admitted by the accused, who by himself and others makes a plausible explanation of such possession which if believed by the jury would indicate his innocence the accused under such circumstances, at his request, is entitled to appropriate instructions touching upon his possession of recently stolen property.
Appeal from District Court, Kay County; J. W. Bird, Judge.
Bert Davis was convicted of larceny and sentenced to serve a term of four years in the state penitentiary, and he appeals. Reversed and remanded.
B. C Wieck, of Ponca City, for plaintiff in error.
S. P Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
Bert Davis, plaintiff in error, herein referred to as the defendant, was convicted on the 24th day of April, 1919, of the larceny of a Ford touring car, said to have been stolen early in the month of February, 1918. His punishment was fixed at four years in the state penitentiary. After the overruling of a motion for a new trial, an appeal was taken and regularly lodged in this court.
The record shows that the subject of the larceny, a Ford touring car, was stolen from the residence of F. C. Hall at Chickasha, Okl., and that the car was afterwards found on the 20th day of February, 1918, in the possession of one Vince Cumiford, in Kay county, and that Cumiford had purchased the car from the defendant a short time previous. Mr. Hall, the owner of the car, went to the premises of Mr. Cumiford and identified the car to the satisfaction of Mr. Cumiford, who then surrendered it to Mr. Hall.
The defendant at this time was engaged in the shoe repairing business at Ponca City, where he maintained a shop for that purpose. In addition to this business, he had been engaged in buying and selling secondhand cars, and the testimony on the part of the defendant tends to show that he had bought this particular car from David Lessert, who was a member of the firm of Lessert & Lessert, and that they conducted a garage at Ponca City; that soon after Davis claims to have purchased the car, David Lessert disappeared, and though diligent search was made to ascertain his whereabouts, no one had been able to locate him. There is testimony tending to show that Irv Killion made or negotiated this trade between the defendant and Cumiford, and that Killion had delivered the car to Cumiford; that after the defendant was arrested and placed in jail, Cumiford went to see him, and the defendant denied having sold the car to him.
Numerous assignments of error have been urged why this case should be reversed. Two of these assignments we think are decisive in this case, and these only will be analyzed, namely:
(1) That the court erred in permitting the state to introduce in evidence a transcript of the testimony of F. C. Hall given at the preliminary hearing of this cause, for the reason that a proper predicate was not laid and proper diligence to obtain the presence of the witness was not shown, as a condition precedent for the reception of such testimony.
(2) That the court erred in instructing the jury only upon the state's theory of the case and, on the same issue, in refusing to instruct the jury upon the defendant's theory of the case, tending to explain his possession of the stolen car.
Upon the first proposition, it appears that F. C. Hall's residence was known to the county attorney and the sheriff as being in Chickasha, Grady county, Okl.; that Mr. Hall had promised the sheriff of Kay county that he would come to Kay county to testify in the case upon notice, without a subp na. The case was set for trial in the trial court for the 7th day of April, 1919, and on that day was continued and reset for the 22d day of April, 1919. On the 16th day of April, the county attorney testified, he put in a call at the telephone office for F. C. Hall at Chickasha and found that he had left his home temporarily and was informed that he had gone to Wichita Falls, Tex. The county attorney then talked over the telephone to Mr. Hall at Wichita Falls, and Mr. Hall explained that he had intended to appear at the trial voluntarily, as promised, but that he had an important oil deal pending in Southern Texas, and that it would be impossible for him to be present on Tuesday, April 22d. The county attorney then appealed to the sheriff to do what he could to persuade Mr. Hall to come. The sheriff then telephoned to Wichita Falls and was informed that Mr. Hall had gone to Southern Texas.
No subp na was ever issued to the officers of Grady county, where the witness resided. On the 16th day of April, 1919, a subp na for F. C. Hall was issued, directed to the sheriff of Kay county, and the sheriff's return thereon showed, "F. C. Hall not found in Kay county." Upon this showing the court, over the objections of the defendant, permitted the testimony of F. C. Hall taken at the preliminary hearing to be read to the jury as his deposition.
We have no direct statute in this state with reference to the introduction of testimony of a witness given upon a former trial or preliminary hearing of a case. Section 5543, R. L. 1910, provides:
"The procedure, practice and pleadings in the courts of record of this...
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