Foster v. State
| Decision Date | 28 August 1926 |
| Docket Number | A-5657. |
| Citation | 248 P. 847,35 Okla.Crim. 70 |
| Parties | FOSTER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The Constitution of this state (section 20, Bill of Rights) guarantees to every accused person the right to meet face to face the witnesses against him. To read to the jury over the objection of defendant the material testimony of a witness given in a proceeding in which defendant was not a party, is prejudicial error.
Appeal from District Court, Muskogee County; Enloe V. Vernor, Judge.
Olson Foster was convicted of robbery with firearms, and he appeals. Reversed and remanded.
C. A Summers, of Muskogee, for plaintiff in error.
Geo. F Short, Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of robbery with firearms, and sentenced to serve a term of 25 years in the state penitentiary.
The evidence disclosed that J. M. Bates was engaged in the mercantile business at Haskell, and on the night of the commission of the crime charged was sleeping in his store. During the night he heard some one in the building, and discovered a man with a flash light, whom he intercepted. A fusillade followed; the intruder shot Bates, and Bates returned the fire and shot the intruder twice. The man shot was Orie Smith, who was later tried and convicted for robbery. In the trial of defendant, Bates testified that he saw only one man in the store, but heard an automobile running outside. Other witnesses, immediately after the shooting, saw some one running away from the store, whom the state attempted to identify as defendant. The shooting was about 2:30 a. m. About sunrise, defendant was arrested two miles north and three-quarters of a mile east of Haskell. There was some evidence of a statement made by him which might be construed as an admission of his connection with the crime.
The defendant testified that on the night of the offense charged he met Orie Smith at a barber shop at Muskogee, and Smith suggested that he would take defendant to his home near Haskell after work hours; that he came between 11 and 12 o'clock, and defendant went with him in a Ford roadster to the town of Haskell, and there Smith left the car ostensibly to get some barber tools, and defendant remained at the car, and while waiting he heard some shooting, became alarmed and left, and started to walk home, and had gone about 2 1/2 miles when overtaken by the officers, about 7 or 7:30 a. m.; that he did not know that Smith intended to commit any robbery, and had no connection with him other than as stated. Separate trials of the defendant and Smith were had.
Several assignments of error are argued in the brief, but we deem it necessary to consider only one of them. It is argued that the trial court erred in permitting the state to introduce a transcript of the testimony of a witness, Swanson, given at the separate trial of Smith. Swanson was a deputy sheriff and his testimony was material. On the day preceding the trial of defendant, a subp na was issued for this witness; but, as he was temporarily out of the state, it could not be served. His testimony, ex parte so far as defendant was concerned, was thereupon read in evidence, over the objection of def...
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