State v. Gallina

• Decision Date: 07 February 1944
• Docket Number: No. 38853.,38853.
• Citation: 178 S.W.2d 433
• Parties: STATE v. JAMES GALLINA, Appellant.
• Court: Missouri Supreme Court

178 S.W.2d 433

STATE v. JAMES GALLINA, Appellant.

No. 38853.

Supreme Court of Missouri.

Division Two, February 7, 1944.

Motion to Modify Opinion Sustained and Rehearing Denied, March 6, 1944.

Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.

REVERSED AND REMANDED.

John L. Sullivan and Joseph M. Walsh for appellant.

(1) The law of Missouri seems to be well settled that the testimony of a witness given upon a former trial is competent on a second trial, the witness having died in the meantime. State v. McO'Blenis, 24 Mo. 402; State v. Rose, 92 Mo. 201, 4 S.W. 733; Garrett v. State, 6 Mo. 1; State v. Hudspeth, 159 Mo. 178, 60 S.W. 136; State v. Eastham, 240 Mo. 241, 144 S.W. 492; State v. Pierson, 337 Mo. 475, 85 S.W. (2d) 48; State v. Lloyd, 337 Mo. 990, 87 S.W. (2d) 418. (2) Testimony of witness on former trial is not admissible on proof that witness is beyond jurisdiction of the court, unless it also be shown that the State used due diligence to secure attendance of witness upon trial. State v. Lloyd, 337 Mo. 990, 87 S.W. (2d) 418. (3) Bare showing of absence from the State insufficient. State v. Nicholas, 149 Mo. App. 121, 130 S.W. 96; Opinion Adopted (1912), 163 Mo. App. 527, 143 S.W. 1198; State v. Lloyd, 337 Mo. 990, 87 S.W. (2d) 418. (4) Where State does not exercise reasonable diligence to secure attendance of such witness, admission of testimony of witness upon a former trial, over the defendant's objection, violates the defendant's constitutional right (Constitution of Missouri, Article 2, Section 22) to "meet the witnesses against him face to face." State v. Lloyd, 337 Mo. 990, 87 S.W. (2d) 418; State v. Williford, 111 Mo. App. 668, 86 S.W. 570. (5) Testimony of witness on former trial, if admissible at all, should not be admitted unless it appears that the process of the court was invoked to compel attendance of such witness or that it would have been ineffectual if it had been invoked. State v. Evans, 65 Mo. 574. (6) Testimony of witness on former trial, if otherwise admissible, should not be admitted until competent proof of the following facts has been shown by the side offering the evidence: (a) That such former trial was had in a judicial tribunal, having jurisdiction. (b) That the parties and issues therein were substantially the same as in the present trial. (c) That the witness had been sworn and had testified. (d) That the opposing party was present and had an opportunity to cross-examine. (e) That the witness' presence to testify personally cannot be secured, despite the exercise of due diligence. (f) That the witness has rendered himself incompetent as a witness without fault on the part of the side offering his former testimony. (g) That the testimony can be substantially reproduced. 23 C.J.S., sec. 892, pp. 118, 119.

Roy McKittrick, Attorney General, and Lawrence L. Bradley, Assistant Attorney General, for respondent.

The court did not err in permitting the testimony of the witness Lucille Walsh, as given at the former trial, to be read and admitted in evidence. In re Thomasson's Estate, 347 Mo. 748, 148 S.W. (2d) 757; 79 A.L.R. 1392, 1409; State v. McGuire, 327 Mo. 1176, 39 S.W. (2d) 523; State v. Riddle, 179 Mo. 287, 78 S.W. 606; State v. Lloyd, 337 Mo. 990, 87 S.W. (2d) 418.

BOHLING, C.

The contested issue presented is, principally, whether the State showed sufficient diligence upon which to predicate the admission in evidence of the transcript of testimony given at a prior trial of an absent witness. We think appellant's contention will have to be sustained. The appeal is by James Gallina from a judgment imposing a sentence of one year in jail for manslaughter.

The facts with respect to diligence, shown in the absence of the jury, follow. The indictment charged murder, was filed September 5, 1941, and appellant pleaded "not guilty." At the first trial, April 17, 1942, the jurors were unable to agree. Mrs. Lucille Walsh, who had witnessed the occurrence, was a State's witness at that trial. Appellant's counsel testified, and counsel for the State admitted, appellant at all times thereafter was ready for trial. The case was set for trial in June, 1942. Upon investigation the Circuit Attorney's office was informed that Lucille Walsh had married a Mr. Wright and had moved from her address in St. Louis to a mailing address on a rural route out of Camdenton, Missouri. A continuance was had. The case was next called on October 5, and was continued to October 19, 1942. An Assistant Circuit Attorney testified that he got in touch with Mrs. Walsh by long distance telephone "and made an effort to get her up here, asked her to come up here, and she stated that she couldn't come up"; that she informed him "she was willing to cooperate with the State and come up"; that her husband "had a serious lung ailment and she couldn't come up, and she wouldn't come up if she was subpoenaed." The Circuit Attorney informed appellant's counsel and the case was then set for December 7, 1942. The Circuit Attorney's office wrote a letter, dated November 10, 1942, to Mrs. Wright but this letter "came back with Mrs. Wright's name scratched out and an arrow pointing up to the return address of the Circuit Attorney's office." This, according to the record, indicated that someone had "scratched out the address" and redeposited the envelope in an "out-going box at Camdenton." November 28, 1942, witness made an effort to get in touch with Mrs. Wright by long distance telephone. He was informed by the telephone operator that Mrs. Wright was not there and asked if he cared to speak to Mrs. Wright's daughter who was at the phone. The substance of the long distance conversation with this person was that Mr. and Mrs. Wright had gone to Colorado; that the speaker received a card from them "now and then" but always from a different address; that they moved from place to place and she could not give their address; that the speaker did not know whether they would return to Missouri but that they would not return before warm weather if they returned. Witness testified that he never caused a subpoena to be issued and forwarded for service on Mrs. Wright; he "wanted to be careful; I didn't want to get her hostile"; that after the telephonic conversation of November 28, witness did not know where to send a subpoena for service. He informed appellant's counsel he was going to trial without Mrs. Wright, and did not, until the day or a day or so before the trial, inform counsel he would attempt to use her former testimony.

In respect to the issue the State and an accused occupy essentially different positions. An accused is entitled to the full weight of, among others, the constitutional...