St. Louis, I.M. & S. Ry. Co. v. Harper

• Decision Date: 14 January 1888
• Citation: 6 S.W. 720,50 Ark. 157
• Parties: ST. L., I. M. & S. RY. v. HARPER
• Court: Arkansas Supreme Court

6 S.W. 720

50 Ark. 157

ST. L., I. M. & S. RY. v. HARPER

Supreme Court of Arkansas

January 14, 1888

APPEAL from Hempstead Circuit Court, L. A. BYRNE, Judge.

Judgment reversed and cause remanded.

Dodge & Johnson, for appellant.

1. The deposition of a witness which was taken while the witness was competent to testify, cannot be read in the trial of an action at law, if at the time of the trial he has become incompetent by reason of the law. The deposition of Deno Casat, taken while he was a competent witness, but offered to be read, after his conviction of an infamous crime and execution for murder, was incompetent and could not be read in evidence. 1 Wharton Ev., sec. 397; Mansf. Dig. sec. 2859; 1 Salk., 286; 1 Strange, 101; 29 Iowa 485; 6 Abb. Pr. N. S 342; 51 Me. 113; 20 Ga. 561; 2 Ala, 62; Weeks on Dep., sec 515; 12 Heisk., 482; Greenl. Ev., sec. 168; 17 Ohio Rep. 51; 14 Mass. 233; 4 Yeates, 513; 17 S. & R., 412; 17 N.W. 774; 2 S.W. 697; Ransom v. State, 49 Ark. 176.

We find only one American authority which sustains the text quoted from Greenl. Ev., and that is 9 Rob. (La.) 203, which was a chancery proceeding to obtain an injunction. 3 Peck and 33 N.H. 52 have no reference to the question under discussion although cited by Mr. Greenleaf.

2. Review the instructions, and contend that certain of them were erroneous, citing authorities, but as this court has not passed upon them, the argument is omitted.

J. D. Cook and A. B. & R. B. Williams, for appellee.

The question in this case is whether Deno Casat, a competent witness when his deposition was taken, and who, after the first trial in this case, and before the trial from which this appeal is taken, was indicted, tried, convicted, sentenced and hanged for murder, was under this admitted state of facts, properly admitted as evidence on the second trial of the case.

There is grave doubt of the admissibility of such evidence except after the death of the witness, but after the death of the witness, we have failed to find a single authority, or even the dictum of a respectable judge, which does not recognize the admissibility of the evidence. Starkie on Ev., 9th Ed. pp. 409 and 410; Greenleaf on Ev., pp. 163 to 168; 14th Mass. 234; 6th Cowen, 162; 12 Wend., 41; 1st Nott & McCord, 409; 2d Strange, 833 and 9th Rob. (La.), 203.

The rule seems to be well settled, by the best authorities, and supported by reason, that the deposition of a witness who subsequently becomes incompetent can be read in evidence if the witness is beyond the jurisdiction of the court. 15 Wisc., 1. The test of the competency of the evidence in this case, as in all other similar cases, is the time when the witness is offered for examination, and not when the evidence is offered on the trial. 5 Am. Law Reg., 319; Ib., vol. 3, 309; 20 Ga. 561; 45 Iowa 231; 8 N.W. 651; 9 Id., 347; 1 Salk., 286; Mansf. Dig., secs. 2921, 2925; 14 Mass. 233.

OPINION

COCKRILL, C. J.

Harper recovered judgment against the railroad for a personal injury, but on appeal to this court it was reversed and a new trial ordered. 44 Ark. 524. Deno Casat's deposition was read on the first trial, and the verdict was based in the main upon that evidence. The deposition had been taken while Casat was confined in the Pulaski county jail on a charge of murder. On the second trial, the defendant objected to the use of Casat's testimony, upon the ground that since the first trial he had been convicted of a capital offense. The production of the record of conviction was waived, and it was agreed that Casat had been convicted of murder in the first degree in the Pulaski circuit court, and executed since the first trial. The court permitted the deposition to be read as evidence to the jury, the verdict was for the plaintiff, and the company appealed.

The question is, did the court err in receiving Casat's testimony? If Casat had been offered as a witness after his conviction, his testimony could not have been received. The conviction rendered him infamous and disqualified him to testify. Mans. Dig. sec. 2859; Werner v. State, 44 Ark. 122. But as he was a competent witness when the deposition was taken, it is argued that a subsequent conviction could not render his previous testimony incompetent. All depositions in actions at law are taken de benne esse--that is, subject to the contingency of the witness not being able to attend court at the trial. Mans. Dig., secs. 2925, 2921. If it is shown at the trial that the witness is not embraced in one of the excepted classes at that time, the deposition is excluded and the witness must be called for oral examination. If he is within the contingency provided by the statute, the deposition is taken in lieu of the witness. The status at the trial governs the question of competency, (Weeks on Depositions, sec. 515; Fielden v. Lahens, 6 Abb. Pr. (n.s.) 342; Oliver v. Moore, 59 Tenn. 482, 12 Heisk. 482; Webster v. Mann., 56 Tex. 119), for, in contemplation of law, the deposition is the witness (Jones v. Scott, 2 Ala. 58), and the witness is presumed to testify when the deposition is used. Park v. Lock, 48 Ark. 133, 2 S.W. 696; Quick v. Brooks, 29 Iowa 484; Fagin v. Cooley, 17 Ohio 44.

If Casat had been living at the time of the trial, his deposition would have been incompetent, because he was infamous and could not himself testify. The question was directly ruled in Webster v. Mann., 56 Tex. sup. See too. LeBarron v. Crombie, 14 Mass. 234.

To hold otherwise, would be to make the circumstances of the whereabouts of a witness on the day of trial the test of the admissibility of his testimony. If the witness be present at the trial his deposition cannot be used, because he may be examined orally in court; but the witness cannot testify then because of his infamy....