Exleton v. State
| Decision Date | 02 May 1925 |
| Docket Number | A-4588. |
| Citation | 235 P. 627,30 Okla.Crim. 224 |
| Parties | EXLETON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where an accused at a preliminary hearing had been confronted by a witness against him and had the privilege of cross-examination, if it satisfactorily appears, upon a subsequent trial involving the same issue, that for any of the reasons recognized by the law, the oral testimony of the witness is not available, the admission of a transcript of the evidence taken at the preliminary is not in violation of the constitutional right of the accused to be confronted with the witnesses against him.
Where in a criminal case a witness for the state has voluntarily testified at a preliminary trial, and an opportunity for cross-examination offered the accused, and at the final trial such witness is again offered by the state, but refuses to testify for the reason that such testimony will tend to incriminate him, his former testimony given at the preliminary, otherwise competent and material, is admissible.
It is not an essential prerequisite that a transcript of the evidence taken at a preliminary trial be filed with the court clerk in order to render it admissible in evidence, when otherwise competent and material.
In a criminal case it is ordinarily discretionary with the trial court whether he will make an order giving counsel for an accused the right to interview a state's witness incarcerated in jail, and a refusal of an interview will not be error, unless an abuse of discretion is shown.
Where an accomplice of an accused is incarcerated in jail as a witness for the state and his evidence taken at a former hearing is used against the accused on the trial of the case the accused is entitled to a reasonable opportunity to interview such accomplice and a denial of an opportunity to do so is error.
Appeal from District Court, McClain County; W. L. Eagleton, Judge.
Ed Exleton was convicted of manslaughter in the first degree and he appeals. Reversed and remanded.
Moman Pruiett, of Miami, Fla., and C. G. Moore and Glasco & Glasco all of Purcell, for plaintiff in error.
George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
For convenience and brevity, the plaintiff in error will be referred to as defendant, as in the court below.
The defendant was charged with murder of one E. L. Trimble on the 27th day of August, 1921. He was convicted of manslaughter in the first degree and sentenced to serve a term of 8 years in the state penitentiary. The homicide on which the charge was based, as disclosed by the record, is about as follows: On the morning of August 28, 1921, the train crew on the south-bound Santa Fé, out of Purcell, discovered a body on the track, but too late to stop the train, and the body was severed near the middle. On examination a bullet wound was found which had severed the aorta and caused death. One Jesse Waters and the defendant were arrested. The defendant ran a hotel at Purcell, and the mother of Waters was an employé there. Waters was about 19 years of age, and was tried a few days before the defendant and was convicted and sentenced to serve a term of 12 years in the penitentiary. At the preliminary hearing of the defendant, Waters was called as a witness for the state and was examined and cross-examined fully by counsel for defendant. His testimony was that he shot and killed the deceased at the solicitation and on the advice and direction of the defendant.
Upon the final trial of the defendant, Waters was again put on the stand by the state, and when asked a preliminary question said, "If I testified in this case, it would be different than what I did before," and on the question being repeated said, Then one of the attorneys for Waters asked permission of the court to inform him of his rights if his testimony might incriminate him. The court then informed the witness of his rights, and witness stated that he claimed this right. The court, after argument, ruled that the witness was competent and ordered him to testify, and he did thereupon answer several questions of a preliminary character, and thereupon the counsel for defendant requested the court permission to confer with the witness, which was denied by the court, then counsel for the witness Waters requested permission of the court to confer with the witness in private, which was allowed by the court. After the consultation Waters was again placed on the stand and refused to testify further, although ordered to do so by the court. On this latter questioning of the witness Waters, the counsel for defendant objected. Upon the refusal of Waters to testify further, the state offered a transcript of his evidence taken in the preliminary of the defendant, which when identified and its correctness established was admitted in evidence. The defendant objected on the ground that it was not admissible as the witness was present in court, and on the further ground that the transcript had not been filed with the clerk of court as provided by statute, which objections were overruled and the former evidence read to the jury.
In the brief of defendant only three propositions are argued. First: That the court erred in admitting in evidence the transcript of the testimony of the witness Waters given on the preliminary examination; second, that the court erred in refusing to permit counsel for defendant to interview the witness Waters before the preliminary commenced and again before the case had closed; third, that the court erred in not directing a verdict for defendant on the ground that the witness Waters was an accomplice and his testimony not sufficiently corroborated. These assignments of error will be considered in the order presented. Section 20 of Bill of Rights of the state Constitution provides that the accused in a criminal case shall have the right to be confronted by the witnesses against him. Those sections of the statute which have a bearing on the legal questions presented are section 2345, Compiled Laws 1921, as follows:
"The procedure, practice and pleadings in the courts of record of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this code, shall be in accordance with the procedure, practice and pleadings of the common law,"
-and section 2491, Compiled Laws 1921, referring to preliminary examinations, in part, as follows:
"* * * On the request of the county attorney, or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witnesses, * * * and * * * filed with the clerk of the district court, by the examining magistrate. * * *"
The general rule sustains the view that under the Constitution and this or similar statutes where an accused has once been confronted with a witness who testifies against him, and had the right to cross-examine, the admission of such testimony in a subsequent trial of the same issue where the witness has died, become insane, or is sick or unable to testify, or his presence cannot be had, is not a violation of the constitutional right of the accused. Davis v. State (Okl. Cr. App.) 201 P. 1001; Golden v. State (Okl. Cr. App.) 214 P. 946; Hawkins v. United States, 3 Okl. Cr. 652, 108 P. 561; Smith v. State, 147 Ga. 689, 95 S.E. 281, 15 A. L. R. 490; Underhill Crim. Ev. § 265.
There is an exhaustive note on this point to the case of State v. Hefferman, 22 S.D. 513, 118 N.W. 1027, 25 L. R. A. (N. S.) 868, and also an exhaustive note to the case of Blackwell et al. v. State (Fla.) 15 A. L. R. 465.
In the instant case the unusual situation is presented of a witness who at the preliminary trial voluntarily testified for the state, now declining to testify on the ground that his evidence will incriminate him. At the time of the final trial of this case, the witness had been tried for the same offense for which the defendant was on trial and had been convicted, and the time within which he might appeal had not expired. There is no question about the good faith of the state in desiring to have him testify orally. The claim of exemption was not due to any procurement or act on the part of the prosecution. The transcript of the evidence offered had not been filed with the clerk of the district court as provided by section 2491, Compiled Laws 1921, supra. But this court in the case of Baldock v. State, 16 Okl. Cr. 203, 182 P. 265, has held that such filing is not essential. It is apparent that section 2491, supra, in so far as it relates to the filing of this transcript with the clerk of the court, is a directory and not a mandatory statute, its purpose being to provide a depository so that the question of the authenticity and identity of the transcript may not be drawn in question.
There is some diversity of authority on the admissibility of evidence where the witness can be personally present and is not physically unable to testify. 2 Wigmore on Evidence, beginning with section 1401, discusses the admissibility of this character of evidence at some length, and in section 1402 says:
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