State v. Budge

• Decision Date: 30 July 1928
• Citation: 142 A. 857
• Parties: STATE v. BUDGE.
• Court: Maine Supreme Court

142 A. 857

STATE

v. BUDGE.

Supreme Judicial Court of Maine.

July 30, 1928.

Exceptions from Superior Court, Penobscot County, at Law.

Smith Budge was indicted and tried for manslaughter, and he brings exceptions to the admission of certain evidence.Exceptions overruled, and judgment rendered for the State.

See, also, 126 Me. 223, 137 A. 244, 53 A. L. R. 241.

Argued before WILSON, C. J., and PHILBROOK, DUNN, STURGIS, and BASSETT, JJ.

George P. Eaton, Co. Atty., of Bangor, for the State.

Benjamin W. Blanchard, of Bangor, for respondent.

WILSON, C. J.The respondent was Indicted for manslaughter at the May term, 1925, in the superior court for the county of Penobscot, and tried at that term, and a verdict of guilty rendered, which was set aside.Upon a second trial, the state introduced, under section 171, c.,87, R. S., a duly certified copy of the stenographic notes of the official reporter of the trial court taken at the former trial of the testimony given by a witness; the state having first presented evidence upon which the trial Judge found that since the former trial the witness had left the state and was then beyond the jurisdiction of the court and the power of the state to compel his attendance.

To the admission of this testimony counsel for the respondent objected.While his objections were couched in the most general terms and a technical question might be raised as to whether they meet the rules of this court as laid down in McKown v. Powers, 86 Me. 291, 29 A. 1079, and the other cases there cited, it is perhaps clear from the colloquies between court and counsel and from the objections stated that the counsel objected, first, on the ground that proof of mere absence from the state was not sufficient to warrant the introduction of such testimony; and, secondly, that the evidence did not warrant a conclusion that the witness had actually left the state or at least that his attendance could not have been compelled under a comity statute similar to section 12, c. 134, R. S.

The issue raised by the first objection involves the best evidence and hearsay rule and also section 6, art. I, of the Constitution of this state, which provides that in all criminal prosecutions the accused shall have the right to be confronted by the witness against him.

This provision in our Constitution is a common and perhaps a universal one in the Constitution of every state.A similar one is also contained in the Federal Constitution.

It is held, however, and so far as we are advised without exception, not only in the state but in the federal courts, and in both civil and criminal trials, that the admission of testimony, given under oath at a former hearing between the same parties, and where the same issue is involved, of a witness who has since died or who is absent from the jurisdiction by procurement of the accused or adverse party, when opportunity for full cross-examination was had at the prior hearing, does not violate the constitutional provision conferring upon an accused in criminal cases the right to be confronted by the witnesses against him, is an exception to the hearsay rule, and is admitted as the best evidence obtainable under the circumstances.Mattox v. United States, 156 U. S. 237, 15 S. Ct. 337, 39 L. Ed. 409;Motes v. U. S., 178 U. S. 458, 20 S. Ct. 993, 44 L. Ed. 1150;West v. Louisiana, 194 U. S. 262, 24 S. Ct. 650, 48 L. Ed. 965;Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244;Langham v. State, 192 Ala. 687, 68 So. 1019;Dolan v. State, 40 Ark. 455;State v. Gaetano, 96 Conn. 306, 114 A. 82, 15 A. L. R. 458;Putnal v. State, 56 Fla. 86, 47 So. 864;Blackweli v. State, 79 Fla. 709, 86 So. 224, 15 A. L. R. 465;Barnett v. People, 54 Ill. 325;State v. Kimes, 152 Iowa, 240, 132 N. W. 180;State v. Nelson, 68 Kan. 566, 75 P. 505, 1 Ann. Cas. 468;State v. Simmons, 78 Kan. 852, 98 P. 277;State v. Bollero, 112 La. 850, 36 So. 754;Com. v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608;People v. Case, 105 Mich. 92, 62 N. W. 1017;People v. Gilhooley, 108 App. Div. 234, 95 N. Y. S. 636;People v. Elliott, 172 N. Y. 146, 64 N. E. 837, 60 L. R. A. 318;State v. Walton, 53 Or. 557, 99 P. 431, 101 P. 389, 102 P. 173;Brown v. Com., 73 Pa. 321, 13 Am. Rep. 740;Robertson v. State, 63 Tex. Or. 216, 142 S. W. 533, Ann. Cas. 1913C, 440;State v. King, 24 Utah, 482, 68 P. 418, 91 Am. St. Rep. 808;Jackson v. State, 81 Wis. 127, 51 N. W. 89;Wigmore on Ev. §§ 1397-1399;Greenleaf, Ev. vol. 1, § 1639.

The reason for the rule is stated by the federal Supreme Court in Mattox v. U. S., supra:

"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against a prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness.* * * But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case.To say that a criminal, after once having been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent.The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused."

It is true that the courts at first were somewhat hesitant in extending the admission of such testimony beyond cases where the witness had died since the prior hearing or trial or in cases where his absence was through the procurement of the accused in criminal cases or the adverse party in civil cases; and the view has been expressed in dissenting opinions that the admission of such testimony was in contravention of the constitutional provision requiring confrontation.At times the Texas Court of Criminal Appeals has excluded such testimony altogether.Cline v. State, 36 Tex. Cr. App. 320, 36 S. W. 1099, 37 S. W. 722, 61 Am. St. Rep. 850;Kemper v. State, 63 Tex. Cr. App. 1, 138 S. W. 1025.

In certain jurisdictions the admission of such testimony is still limited, at least in criminal cases, to instances where the witness is dead or out of the jurisdiction of the court through procurement of the accused.Collinsv. Com., 12 Bush.(Ky.) 271;Owens v. State, 63 Miss. 450;State v. Lee, 13 Mont. 248, 33 P. 690;State v. Houser, 26 Mo. 431;Finnv. Com., 5 Rand.(Va.) 701;State v. Wing, 66 Ohio St. 407, 64 N. E. 514.

In Massachusetts and New Hampshire and in one instance in Connecticut the court in dicta intimates the admission of such testimony might be limited to cases where the witness was dead.Com. v. McKenna, 158 Mass. 207, 33 N. E. 389;State v. Brauneis, 84 Conn. 222, 79 A. 70;State v. Staples, 47 N. H. 113, 90 Am. Dec. 565.No case in Massachusetts or New Hampshire has been called to our attention where the precise question here involved has been considered.In Connecticut, State v. Gaetano, 96 Conn. 306, 114 A. 82, 15 A. L. R. 458, the court, when the question was squarely raised, adopted the rule contended for by the state in the case at bar.

The trend of modern decisions, however, and the great, weight of authority, have extended the rule to cover cases in which the witness was permanently or for any indefinite period out of the jurisdiction of the court, and in some instances to inability to attend by reason of illness, insanity, or even a temporary absence from the state.Vaughan v. State, 58 Ark. 353, 370, 24 S. W. 885;Pope v. State, 183 Ala. 61, 63 So. 71;Lowe v. State, 86 Ala. 52, 5 So. 435;Rogers v. State, 136 Ark. 161, 172, 206 S. W. 152;Putnal v. State, 56 Fla. 86, 94, 47 So. 864;Smith v. State, 147 Ga. 689, 95 S. E. 281, 15 A. L. R. 490;State y. Simmons, 78 Kan. 852, 98 P. 277;State v. Heffernan, 24 S. D. 1, 123 N. W. 87, 25 L. R. A. (N. S.) 868, 140 Am. St. Rep. 764;Wilson v. State, 175 Ind. 458, 465, 466, 93 N. E. 609;State v. Brown, 152 Iowa, 427, 432, 436,132 N. W. 862;State v. Gentry, 86 Kan. 534, 121 P. 352;People v. Bruno, 220 N. Y. 702, 115 N. E. 1004;People v. Schepps, 217 Mich. 406, 186 N. W. 508, 21 A. L. R. 658;State v. Meyers, 59 Or. 537, 542, 117 P. 818;State v. Walton, 53 Or. 557, 99 P. 431, 101 P. 389, 102 P. 173;Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533, Ann. Cas. 1913C, 440;Modello v. State, 85 Tex. Cr. R. 291, 211 S. W. 944;State v. Hillstrom, 46 Utah, 341, 366, 150 P. 935;Meldrum v. State, 23 Wyo. 12, 146 P. 596;People v. Devine, 46 Cal. 46;State v. Nelson, 68 Kan. 566, 75 P. 505, 1 Ann. Cas. 468;Com. v. Ryhal, 274 Pa. 401, 118 A. 358;Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 Am. St. Rep. 989, 13 Ann. Cas. 969.Also see the discussion of the rule and authorities cited in Wigmore, Ev. §§ 1395-1418;Chamberlayne's ModernEv. § 1625;Greenleaf, Ev. vol. 1, § 163g;10 R. C. L.p. 468;16 C. J. 757;WhartonEv. § 177;1 Bish. Crim. Pro. §§ 1194, 1195.A full discussion of the rule, with a collection of authorities, may also be found in an annotation in 15 A. L. R. 495, with additional citations in 21 A. L. R. 622.

That the tendency has been to extend the rule is indicated by the overruling of earlier cases which confined it to a deceased witness.SeePittman v. State, 92 Ga. 480, 17 S. E. 856, overruled bySmith v. State, 147 Ga. 689, 95 S. E. 281, 15 A. L. R. 490;State v. Heffernan, 22 S. D....