Scott v. State
| Citation | 278 P. 393,43 Okla.Crim. 232 |
| Decision Date | 08 June 1929 |
| Docket Number | A-6140. |
| Parties | SCOTT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where a showing, and the only showing, made by the state as a condition precedent to the introduction of the testimony of the witness taken at the preliminary trial, was that the subp na issued for the witness was indorsed, "somewhere in Texas; not found in Leflore County," and where there was no showing that the witness was dead, or that he was sick and unable to be present at the time or was out of the jurisdiction of the court, or no proper diligence was shown to procure the attendance, the admission of the testimony of such witness taken at the preliminary trial, over the objection of the accused, was error.
(a) If such witness can be produced at a final trial, the defendant has the right to be confronted by the witness.
Proof of predicate for the introduction of the transcript of the testimony of an absent witness taken at a preliminary trial held insufficient.
Record examined, and held, there is no competent evidence sufficient to sustain the judgment.
Appeal from District Court, Leflore County.
A. B Scott was convicted of arson in the second degree, and he appeals. Reversed and remanded.
Lunsford & Windham, of Poteau, for plaintiff in error.
Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for the State.
The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Leflore county, of arson in the second degree, and his punishment fixed at two years in the state penitentiary. Motion for new trial was filed and overruled, and defendant duly excepted and has appealed to this court.
The state to sustain the allegations called J. T. Pope, who testified that on the 1st day of July, 1922, he lived on the southeast quarter of section 9, township 4, range 26 east that he had a dwelling house built especially for a dwelling he had a two-room house with a porch across the north side of it near his home; to the best of his recollection on the 23d day of March, 1922, he was awakened by a fire; the two-room house was burning down; it was immediately south of the house in which I lived.
The state offered in evidence the subp na for Jeff Davenport as a witness on behalf of the state, which was objected to by the defendant, and the objection overruled; the subp na was offered in evidence, and showed that it was issued at Poteau, on the 25th day of September, 1925, and returned on September 26, 1925, showing that Jason Milsap is in Ft. Smith, and Jeff Davenport somewhere in Texas, not found in Leflore county.
County Attorney: I have offered in evidence the return of the officers made properly to support that fact if the court desires further proof of that.
Court: You had better call the officer who made the return."
The officer who made the return was not called, but J. T. Pope was recalled and stated he was acquainted with Jeff Davenport, and something like a month ago he heard from him; he was in Sherman, Tex., or on a rural route out of Sherman. The defendant objected to the witness' testimony on the ground that if he had a letter from Jeff Davenport, the letter itself would be the best evidence.
By Mr. Babb: Is he around or about Zoe, at this time or not, in this country? A. I don't think so."
Mr. Lunsford: We desire to object further for the reason that the post mark is the best evidence of where it was mailed and where it came from.
On cross-examination the witness was then asked by the county attorney if the could swear of his own knowledge that this witness is not within the state of Oklahoma, and he answered, "No, sir." The county attorney then offered in evidence the transcript of the testimony of Jeff Davenport which was taken at the preliminary trial in the case of the State of Oklahoma v. A. B. Scott. Defendant objected for the reason there had been no competent evidence introduced which was sufficient to support the finding of the court that the witness Jeff Davenport is dead or without the jurisdiction of this court and cannot be produced to testify in person.
The transcript of the record of the Jeff Davenport testimony was then read by the county attorney, in which Davenport stated he had rented the blacksmith shop from the defendant at Zoe, and that in the spring of 1922, and before Pope's house was burned, witness came down to the shop and asked me if I would do him a favor, and I said it was owing to what he wanted. He said there was some money in it, I will give you $350 if you will set fire to Pope's house so it will burn the big house; and I said, I cannot do that, for it will be found out sooner or later. Some fellow came in and he went out. That evening I went to his house to get a brace and bit. While there defendant took me around the house and got those things, and pulled out a roll of greenbacks and counted out $50 and gave it to me and said, "Do that and I will pay you the rest." That evening I set fire to the small house. It was near the Pope house on the west side. I whittled kindling off a pine stump and set fire to it. The next morning I saw defendant on the porch as I came to work. I stayed at Lee Mullins that night. I went to see him next morning, and he said, "How did you make it?" I shook my head, all right. The second day after that, as I came back from Stapp, I saw him. Defendant said, "You did not do what I asked you to do," and I said, "I did the best I could." He said he would not pay me one cent, and I said I had a notion to sue, and he said, "Sue and be damned," and turned and walked off. I quit the shop and went to Redland; left there and came back to Poteau and tried to get this money. When I asked him about it, he said he wasn't going to pay me. I was arrested on a charge of arson and pleaded guilty and received a sentence that expires to-day. On cross-examination the witness, in substance, restated what he had stated in direct examination with reference to defendant hiring him to burn Pope's house, and that he stayed at Lee Mullins house the night of the fire; he ate supper at Will Gillams; that Gillams house was something like a mile and a half from Popes; it was tolerably late when he came to Mullins place. The witness stated he did not have a racket with defendant over the shop; that he worked about a day in the shop after he claims he set fire to the house; Pope and Taylor have not paid me any money since the house was burned; they sent me money to keep me in tobacco, and I mean to pay that back; they sent two, three, or four dollars at a time; I did not claim to any one that old man Scott had threatened to have me arrested for embezzlement.
Jason Milsap was called, and stated he lived last year at Zoe; knew the defendant A. B. Scott and J. T. Pope; he had had a conversation with defendant down between the house and barn just after the new year a year ago last new year; we was out looking at the barn, and he said, "Do you want to make some money easy?" and I said, "Sure if I can make it honest," I said, "I never made any easy money," and defendant said, "I have a problem and you can make some easy money," and I said, "all right, tell it." "You take out big insurance on the house and the things in it, they will not have to know what we have in there." This was objected to by the defendant, and the county attorney stated he was leading up to the conversation about the Pope house. "You burn the house and give me the insurance, and I will give you a deed to this place; if you will burn Pope out I will make you a deed to this place," is the very words the old man said to me, and I told him, "No, you will have to let me study about that," and in about two weeks he came to my house and asked me about the matter again, and I said "I can't do that." He said he got a fellow to burn Pope out; that he did not burn him out; that he was to pay him $350; that he paid $50, but he said he did not have the nerve; he burned the small house and ran off. On cross-examination witness stated: "Yes sir, I was afraid of him, I was not exactly afraid of him just afraid he might do something to me." Witness was then asked why he...
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