Koenigstein v. State

• Decision Date: 23 June 1919
• Docket Number: 20606
• Citation: 173 N.W. 603,103 Neb. 580
• Parties: ARTHUR J. KOENIGSTEIN v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

173 N.W. 603

103 Neb. 580

ARTHUR J. KOENIGSTEIN v. STATE OF NEBRASKA

No. 20606

Supreme Court of Nebraska

June 23, 1919

ERROR to the district court for Madison county: ANSON A. WELCH JUDGE. Affirmed.

AFFIRMED.

Reese & Stout and Jack Koenigstein, for plaintiff in error.

Willis E. Reed, Attorney General, Charles S. Roe and M. D. Tyler contra.

OPINION

SEDGWICK, J.

The defendant was convicted of accepting a bribe from Nannie Meyers, who was keeper of a house of prostitution at Norfolk while he was county attorney, in consideration of protecting her from prosecution for violation of the law. A former conviction upon the same information was reversed by this court. 101 Neb. 229. In that opinion the nature of the evidence in support of the charge is fully stated, and the evidence on this second trial is similar in character. The witness Nannie Meyers was not present in court at the trial, and her evidence given upon the former trial was by the court allowed to be read in evidence over the objection of the defendant.

The first question now presented, and the one principally relied upon in the brief of defendant, is as to the competency of this evidence. The constitutional provision that "the accused shall have the right * * * to meet the witnesses against him face to face" (Const., art. I, sec. 11) guarantees a very important right for the protection of the defendant. When a witness has been previously examined in open court, with the opportunity for cross-examination, which has been fully availed of, and the witness cannot be procured for examination at the second trial, the evidence so given upon a former trial for the same offense is universally held to be competent, and may be necessary to prevent a failure of justice. Hair v. State, 16 Neb. 601, 21 N.W. 464. The important question in such a case is whether it sufficiently appears that the personal attendance of the witness at the trial cannot be had. If it appears that the personal attendance of the witness might have been obtained by diligence on the part of the prosecution, the reading of the former evidence will not be allowed, and if it appears probable that the witness may be found and his examination be had in open court within a reasonable time, the trial will ordinarily be delayed for that purpose. In this case the trial had been adjourned from a former term of court and an order had been entered that the witnesses for the state should give an undertaking for their appearance at the trial. Pursuant to this order, the witness in question had deposited money in the amount of the required recognizance as fixed by the court in lieu of bond. When she failed to appear, a formal forfeiture of her recognizance was entered and the money paid into court. The case had been set down for trial on Monday, the 18th of February, 1918, and on Friday, the 15th, a subpoena was issued for this witness and placed in the hands of the sheriff for service. This subpoena was returned by the sheriff, and on the return it was said that after diligent search the witness could not be found. On Monday, the 18th, a capias was issued for this witness, and again returned by the sheriff that he was unable to find the witness. The sheriff was also examined as a witness, and testified that he went to the residence of the witness, and found no one there and the doors were locked, and that he had made inquiries in regard to the whereabouts of the witness, and was unable to find her. There was also evidence that the witness had recently been known to be in places outside of the state of Nebraska. It is strenuously insisted that under these circumstances it was an abuse of discretion on the part of the trial court to permit the reading of the former testimony. It appears that there are different statutes in the various states in regard to reading former testimony of an absent witness.

"If the witness has disappeared from observation, he is in effect unavailable for the purpose of compelling his attendance. Such a disappearance is shown by the party's inability to find him after diligent search. The only objection to recognizing this ground of unavailability is the possibility of collusion between party and witness; but, supposing the court to be satisfied that there has been no collusion and that the search has been bona fide, this objection loses all its force. For former testimony this cause of unavailability has long been recognized." 2 Wigmore, Evidence, sec. 1405.

In 17 C. J. pp. 240-242, it is said: "The discretion of the court is very broad in determining questions relating to the reception of evidence and is reviewable only for abuse. The broadest application of this principle covers the rulings of the trial court on the relevancy of evidence, especially with respect to its remoteness. Similarly, the trial court's rulings on the admissibility of circumstantial evidence are treated with great respect, and the general rule applies with peculiar force to the reception or rejection of testimony given at prior proceedings. * * * Similarly, it is peculiarly the province of the trial, as distinguished from the appellate, court to pass on the preliminary proofs essential to the admission of certain kinds of evidence, such as evidence received in prior proceedings, dying declarations, and secondary evidence generally."

This presents two very important questions: (1) Have the officer and prosecuting attorney acted in good faith in attempting to find this witness and procuring her at the trial; (2) Is there any ground to suppose that the defendant connived at her absence? The text-writers agree that the matter of allowing the...