Madison v. State

• Decision Date: 11 November 1911
• Citation: 118 P. 617,6 Okla.Crim. 356,1911 OK CR 309
• Parties: MADISON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

118 P. 617

6 Okla.Crim. 356, 1911 OK CR 309

MADISON v. STATE.

Court of Criminal Appeals of Oklahoma

November 11, 1911

Syllabus by the Court.

The provision of our statute to the effect that the adverse party may consent to the reading of the affidavits for continuance as the deposition of absent witnesses is a provision of the Civil Code, and has no application to criminal cases.

(a) When a person accused of crime in this state makes out a clear case for continuance owing to the absence of material witnesses, and makes a reasonable showing that he is likely to secure the attendance of such witnesses at the next term of the court, the cause should be continued, notwithstanding counsel for the state may offer to admit the application for continuance as the deposition of the absent witnesses.

(b) If however, the state is willing to admit the statements set out in the affidavits for continuance to be absolutely true, the trial court may, in its discretion, if it can see the accused will not be prejudiced thereby, refuse a continuance.

It is error for a trial court in its instructions to point out to the jury the interest of the defendant in the result of the trial, and give special instructions on his credibility as a witness in his own behalf, over his objection and exceptions.

Appeal from District Court, Oklahoma County; John J. Carney, Judge.

Richard Madison was convicted of manslaughter, and appeals. Reversed and remanded.

Giddings & Giddings, for plaintiff in error.

Charles West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

ARMSTRONG J.

Plaintiff in error was tried in the district court of 0klahoma county at the March, 1909, term, on a charge of murder, and convicted of manslaughter in the first degree, and sentenced to confinement in the state penitentiary for 15 years.

He now seeks a reversal of the judgment in this court for errors assigned to the trial court. A statement of facts is not necessary for the determination of the legal questions involved in this appeal.

The first proposition relied upon by plaintiff in error is based upon the contention that the trial court erred in overruling his motion for continuance on account of the absence of certain material witnesses. It appears that a motion for continuance in due form was filed, setting out the materiality of testimony of witnesses for the plaintiff in error. One of the witnesses was sick in bed. The county attorney agreed to admit the statements set up in the motion for continuance and supported by affidavits as the testimony of the absent witnesses, but not the truth of the statements. The plaintiff in error insisted upon his right to have the witnesses present, and sought to have the case passed for this purpose. The trial court overruled the motion for continuance upon the agreement of the county attorney to permit the application for continuance to be read as the deposition of the absent witnesses, and the plaintiff in error excepted.

Counsel contend that the statute authorizing the admission of the application for continuance in a criminal case as the deposition of the absent witness is unconstitutional, when the application shows diligence and materiality of the evidence. The effect of their contention is that, if the application for continuance is such as would entitle them to a continuance, an offer by the county attorney to admit the affidavits as the deposition of the absent witnesses would be of no avail, and that the action of the court in forcing the trial upon the admission in effect deprives them of a constitutional right. Our Constitution provides that the accused in a criminal trial shall have compulsory process for the attendance of his witnesses.

The statute under which the trial court based the right of the state to insist upon a trial upon the admission of the application for continuance as the deposition of the absent witness is Comp. Laws 1909, § 5836, is a provision of the Civil Code, and has no application to criminal trials. It has been almost, if not, universally held that such provisions cannot be construed to govern the trial of criminal cases. A strong case supporting this doctrine is Dominges v State, 7 Smedes & M. (Miss.) 475, 45 Am. Dec. 315. The court in that case held: "The substitution of depositions for oral testimony belongs to civil trials. In no state of circumstances, under our Constitution, can a deposition of a witness be used against the accused in a criminal prosecution, and a similar rule seems to hold as to depositions of witnesses in his favor, unless by his consent. The system of criminal jurisprudence appears to require the presence of the witnesses, both for and against the accused. Very often, in such prosecutions, much depends upon the appearance, manner, and mode of testifying of a witness, and it is this that adds the superior character and importance to oral testimony. The practice in criminal cases of proposing to admit what was expected to be proved by absent witnesses is not calculated to advance the ends of public justice; and if, indeed, regular and competent, should not be allowed or encouraged except in very extreme cases. But, when such an admission has been once made, it constitutes an admission not merely that the absent witnesses would have sworn to certain alleged facts, but also that the facts alleged are absolutely true. Such an admission is an absolute concession of the facts stated by the accused upon his part, because that alone would be a fair substitute for what might have been the result of the evidence upon an oral examination of the witnesses whose actual presence was sought to be obtained."

The Supreme Court of Nevada in the case of State v Salge, 2 Nev. 321, in reversing a judgment of conviction upon the ground that the court permitted the application to be read in evidence as the deposition of absent witnesses, says: "The court ruled that a continuance would be granted unless the state would admit that the absent witnesses, if present, would swear to the facts as alleged in the affidavit. Upon the state making this admission, the defendant was forced to go to trial without his witnesses. Respondent now contends, and we think rightfully, that, if he made out a case for continuance, it was error to compel him to go to trial on such admissions. An admission that, if a witness were present, he would swear to certain facts, is not calculated to have the same effect as if a respectable witness were present in court, swearing to the same state of facts. We think that where a defendant makes out a clear case for a continuance, owing to the absence of a witness, and shows that he is likely to obtain the testimony of that witness by the next term of court, he is entitled to the continuance, notwithstanding the state may be willing to admit that the witness, if present, would swear as claimed by the defendant."

The Supreme Court of Illinois discusses this proposition in the case of Van Meter v. People, 60 Ill. 168, and lays down what we think is the correct rule. The court in part says: "The act of 1867 [Sess. Laws, p. 157], under which this admission was made, is simply an amendment of the practice act, and does not apply to the trial of criminal cases. The original act in regard to the admission of affidavits was not designed to apply to criminal proceedings. *** We see, however, no objection to such practice, in the discretion of the circuit judge, even in criminal cases, but it must be the old practice of admitting the statements of the affidavits to be absolutely true, and not the rule established by the law of 1867 for civil cases, permitting the affidavit to be contradicted.

This would take from the accused what might be of the greatest importance, if his affidavit might be contradicted--the right to have his witnesses seen and heard by the jury. If the court refuses a continuance because the prosecuting attorney offers to admit the truth of the affidavit, and not to contradict it, it must do so, not by virtue of the practice act, but because, independently of that act, it can see the accused would not be prejudiced by the refusal of a continuance on such terms."

The Texas courts appear to hold to the same rule as that announced by the Illinois Supreme Court in the case of Van Meter v. People, supra. In the case of De Warren v State, 29 Tex. 465, this issue was squarely raised. That ...