Levi v. State

• Decision Date: 31 March 1914
• Docket Number: 22,444
• Citation: 104 N.E. 765,182 Ind. 188
• Parties: Levi v. State of Indiana
• Court: Indiana Supreme Court

104 N.E. 765

182 Ind. 188

Levi v. State of Indiana

No. 22,444

Supreme Court of Indiana

March 31, 1914

Rehearing Denied July 3, 1914.

From Howard Circuit Court; William C. Purdum, Judge.

Prosecution by the State of Indiana against Benjamin Levi. From a judgment of conviction, the defendant appeals.

Reversed.

McConnell & Stuart, Loveland & Sollett, Albert Ward and Bell Kirkpatrick & Voorhis, for appellant.

Thomas M. Honan, Attorney-General, Thomas H. Branaman, Conrad Wolf Cox & Andrews and Frank D. Butler, for the State.

Spencer, J. Morris, J. Cox, C. J., concurs in this conclusion.

OPINION

Spencer, J.

Appellant was charged, jointly with five others, with burglary and grand larceny. The first trial, held in the Miami Circuit Court, resulted in a mistrial by reason of the failure of the jury to agree, and the cause was thereupon venued to the Howard Circuit Court where, in December, 1912, appellant was convicted of grand larceny. Over a motion for a new trial, he was sentenced by the court to serve a term in prison and from such judgment this appeal is prosecuted.

The first error assigned is that the court erred in overruling the motion to quash the indictment. The count on which appellant was convicted, and as to which such motion is here presented, is as follows: "The Grand Jury of the County of Miami, in the State of Indiana, for a further and second count herein, upon their oath do present, that one Frank Revis, Bert Gay, Theron E. Weaver, Bert Snoke, Letcher Revis and Benjamin Levi did, on the 16th day of January, 1911, at the County of Miami, and State of Indiana, then and there unlawfully and feloniously take, steal and carry away of the personal goods and chattels of the Wabash Railroad Company, bailee, four thousand five hundred pounds of clover seed, then and there of the aggregate value of six hundred dollars. All of which the said Grand Jury do present is contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana." This indictment was properly signed and is a good and sufficient charge of grand larceny.

It is next contended that the court erred in permitting the witness Vally D. Condo, as the stenographer who reported the evidence in the former trial, to read from her shorthand notes to the jury the testimony given in such former trial by four witnesses, M. T. Driscoll, Charles A. Stauffer, Charles Clark and Charles Pitzer. The preliminary hearing by the court as to the admissibility of such evidence shows that, on the direction of the prosecuting attorney, a subpoena was issued to the sheriffs of Miami and Howard counties for such witnesses on November 11, 1912; that M. T. Driscoll and Charles A. Stauffer were residents of Griggsville, Illinois, and nonresidents of Indiana; that the prosecuting attorney knew they were not in the State and were nonresidents of the State when such subpoena was issued; that they had been present and testified at the former trial in June, 1912, and had not been in the State since that time; that they were employed by the Wabash Railroad Company at Griggsville, Illinois, as local freight agent and assistant local freight agent respectively; that they were the same persons named in the subpoena; that the deposition of the witness Driscoll was taken at Griggsville, Illinois, on May 31, 1912, after the defendant had filed his written consent for the State to take depositions of witnesses. It further appears that the witnesses Clark and Pitzer testified at the trial in June, 1912; that they resided in Toledo, Ohio; that the representatives of the State knew their addresses and knew that they were not in Indiana when the subpoena was issued. There was no showing that any effort was made to secure the attendance of such witnesses other than by the issuance of the subpoena, which was returned with the endorsement "not found". No effort was made to take their depositions for the second trial and no showing was made that their evidence was necessary or that it was exclusive and not to be procured readily through other witnesses.

Appellant seriously insists that under the provisions of Art. 1, § 13, of our Constitution he had a right to "meet the witnesses face to face." Appellee concedes this as a general proposition but contends that the evidence in question was properly admitted under an exception to the general rule of law which excludes what is termed "hearsay evidence". From an analysis of the following cases it seems that it is incumbent on the party offering such testimony to show affirmatively the existence of all facts necessary to bring the secondary evidence clearly within the exception, and unless this is done the evidence should be excluded. Wabash R. Co. v. Miller (1902), 158 Ind. 174, 177, 61 N.E. 1005; Sage v. State (1891), 127 Ind. 15, 26 N.E. 667; Bass v. State, 136 Ind. 165, 36 N.E. 124; Wilson v. State (1911), 175 Ind. 458, 465, 93 N.E. 609; State v. Heffernan (1908), 22 S.D. 513, 118 N.W. 1027; note in 25 L. R. A. (N. S.) 868, and cases cited. We are not unmindful of the cases which seem to hold that where, on a former trial, the defendant has been afforded an opportunity to confront and cross-examine the witnesses, whose evidence is offered to be reproduced, this satisfies the constitutional guaranty that a person accused of a crime shall have an opportunity to meet the witnesses face to face; also, that the admission of such evidence is not limited to instances where the witness whose former evidence is offered, has since died or become insane, but extends also to the former testimony of witnesses who are permanently or indefinitely absent from the State and beyond the jurisdiction of the court in which the case is pending. Wilson v. State, supra; State v. Nelson (1904), 68 Kan. 566, 75 P. 505, 1 Ann. Cas. 468; Hobbs v. State (1908), 53 Tex. Crim. 71, 112 S.W. 308; Jacobi v. State (1901), 133 Ala. 1, 32 So. 158. The real basis for the admission of such testimony is to prevent the miscarriage of justice where the circumstances of the case have made it unreasonable and unfair to exclude the same. Thus, the death or insanity of the former witness, the absolute impossibility of securing his presence, his absence by procurement of the defendant, or such nonresidence as will preclude the taking of his deposition, will furnish proper grounds for the admission of his former testimony. The question of the necessity of such admission to prevent a miscarriage of justice, is addressed to the sound legal discretion of the trial court and only the abuse of such discretion can be presented to a court of review. In this case, appellee and the absent witnesses were in no different position at the second trial than when the case was tried in June, 1912. Nothing is shown to have occurred that made necessary the introduction of such secondary or hearsay evidence and it does not appear that it was either impracticable or impossible to secure the attendance of such witnesses. No reason is presented why their depositions could not have been taken and used. The issuance of the subpoenas to the sheriffs of Howard and Miami counties under the direction of the representative of the State, when he knew that the witnesses were in neither of said counties and that the return would show that they could not be found, was a useless and unnecessary act and can hardly be said to be a good faith effort to secure their presence at the trial. It can be explained only on the ground that appellee was preparing to make a showing of what it considered to be diligence, as a basis for the introduction of the former testimony of such witnesses at this trial on the ground that they were out of the jurisdiction of the court. It seems to us that had the same energy and diligence been exercised in an effort to secure the attendance of such witnesses at the trial or to have taken their depositions (where the defendant had properly consented to the taking of the same), this question would not have arisen. If the whereabouts of the witness are known and his deposition could have been taken, the former testimony is inadmissible, and in criminal cases this rule is stricter than in civil cases. Jones, Evidence (2d ed.) § 342 (6); Gastrell v. Phillips (1886), 64 Miss. 473, 1 So. 729; Gerhauser v. North British, etc., Ins. Co. (1871), 7 Nev. 174; State v. Heffernan, supra.

As said in Underhill, Crim. Ev. (2d ed.) § 262: "It was formerly doubted, even in civil cases, whether the testimony of a living witness who was absent merely would be received in trial. Though the authorities sustain the rule by which in civil suits the testimony of an absent witness is received not only in case of death, but where he is incompetent by insanity or illness, or mere absence, the criminal courts always hesitate, in the absence of a permissive or mandatory statute, to admit such evidence unless the death or insanity of the witness is shown. The mere fact that the witness is sick or out of the jurisdiction, or that his whereabouts are unknown so that he cannot be reached by a subpoena, is not enough. The authorities are not wholly harmonious, though usually now, by statute, such evidence is admissible." We have no such statute in this State.

As to diligence in procuring the attendance of witnesses, it is said in 1 Wharton, Crim. Ev. (10th ed.) § 229 "While it is difficult to frame a rule stating the kind and degree of proof that should be made as to the absence of a witness,...