Levi v. State, 22,444.

• Citation: 182 Ind. 188, 104 N.E. 765
• Case Date: March 31, 1914
• Court: Supreme Court of Indiana

182 Ind. 188
104 N.E. 765

LEVI
v.
STATE.

No. 22,444.

Supreme Court of Indiana.

March 31, 1914.

Appeal from Circuit Court, Howard County; William C. Purdum, Judge.

Benjamin Levi was convicted of grand larceny, and he appeals. Reversed, with instructions to grant a new trial.

[104 N.E. 766]

Albert Ward and Loveland & Sollitt, all of Peru, Bell, Kirkpatrick & Voorhis, of Kokomo, and McConnell, Jenkines, Jenkines & Stuart, of Logansport, for appellant. Thomas M. Honan, Atty. Gen., Thomas H. Branaman, Deputy Atty. Gen., Conrad Wolf, of Kokomo, and Cox & Andrews and Frank D. Butler, all of Peru, for the State.

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.

[1] 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 subpœna was issued to the sheriffs of Miami and Howard counties for such witnesses on the 11th day of November, 1912; that M. T. Driscoll and Charles A. Stauffer were residents of Griggsville, Ill., and nonresidents of Indiana; that the prosecuting attorney knew they were not in the state and were nonresidents of the state when such subpœna 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, Ill., as local freight agent and assistant local freight agent, respectively; that they were the same persons named in the subpœna; that the deposition of the witness Driscoll was taken at Griggsville, Ill., 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 subpœna 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 subpœna, which was returned with the indorsement, “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 article 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.”

[2] 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, 158 Ind. 174-177, 61 N. E. 1005;Sage v. State, 127 Ind. 15, 26 N. E. 667;Bass v. State, 136 Ind. 165, 36 N. E. 124;Wilson v. State, 175 Ind. 458-465, 93 N. E. 609;State v. Heffernan, 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

[104 N.E. 767]

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, 68 Kan. 566, 75 Pac. 505, 1 Ann. Cas. 468;Hobbs v. State, 53 Tex. Cr. R. 71, 112 S. W. 308;Jacobi v. State, 133 Ala. 1, 32 South. 158.

[3] 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...