State v. Harmon
| Decision Date | 01 December 1904 |
| Docket Number | 14,130 |
| Citation | 70 Kan. 476,78 P. 805 |
| Parties | THE STATE OF KANSAS v. JOHN R. HARMON |
| Court | Kansas Supreme Court |
Decided July, 1904.
Appeal from Cowley district court; CARROLL L. SWARTS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL PROCEDURE--Testimony of Absent Witness--Bill of Rights. Where, in the trial of a criminal case, a witness who had given testimony at the preliminary hearing was shown to be absent from the state and beyond the jurisdiction of the court, it is competent for one who heard the testimony of the absent witness, and remembers it in substance, to testify to his recollection of the substance of the testimony of the absent witness. The requirements of section 10 of the bill of rights (Gen. Stat. 1901, § 92), tat the accused shall be allowed to meet the witness face to face, have been complied with where the accused has met the absent witness face to face at the preliminary hearing.
2. CRIMINAL PROCEDURE--Evidence--Instructions to Jury. On the trial of one charged with keeping a gaming-house evidence was introduced showing that the accused, at the time of his arrest, was in possession of gambling devices in the place charged in the information. The court instructed the jury that this testimony should be considered only to show that the property in question was in appellant's possession; that the appellant could not be convicted on testimony tending to show that he was the keeper or owner of the place after the time of the issuing of the warrant, or on testimony tending to show that the place described in the information was a gaming-house after the time of the issuing of the warrant. Held, not error.
C. C Coleman, attorney-general, J. E. Torrance, county attorney, and W. L. Cunningham, for The State.
C. T. Atkinson, for appellant.
OPINION
In the district court of Cowley county John R. Harmon was convicted of keeping a gaming-house, and sentenced to the penitentiary. From the judgment of conviction he appeals to this court. Among other witnesses sworn and examined at the preliminary hearing was one J. R. Lumpkin. Upon the trial of the case in the district court it was shown that Lumpkin was out of the state. It was also shown that no official stenographer had taken his testimony upon the preliminary hearing, and that the state was not in possession of stenographic notes or a transcript of his testimony. One C. S. Beekman, who represented the state at the preliminary hearing, was called and sworn as a witness on behalf of the state, and, over the objection of appellant, testified to his recollection of the testimony given by the witness Lumpkin. Beekman testified without notes to refresh his recollection. Upon the admission of this testimony error is assigned. The appellant claims that it was a denial to him of his constitutional right to meet the witness face to face at the trial of the case in the district court.
In The State v. Nelson, 68 Kan. 566, 75 P. 505, an appeal from a conviction for manslaughter, error was assigned that the prosecution was permitted to introduce in evidence the testimony given by a witness at a former trial of the same case, the witness having left the state and being beyond the process of the court. In the Nelson case, as in the case at bar, it was claimed by appellant that it was a denial of the constitutional right of the accused to meet the witness face to face. It was held that the constitutional provision had been complied with, the accused having already been confronted with the absent witness at a former trial of the case. Many cases were cited in support of the views therein expressed. It was stated that the rule should be the same whether the absent witness be dead or beyond the jurisdiction of the court. It is sought, however, to distinguish the Nelson case from the case at bar in that the testimony of the absent witness in the former case, and in the cases therein cited with approval, was preserved in the official stenographer's notes, or otherwise, and referred to, or used, while in the case at bar the testimony of the absent witness was offered only through the medium of the recollection of the witness Beekman, whose recollection the appellant claims was faulty.
It appears from the record that the state used the best means at its command to obtain the testimony of the absent witness. The witness Beekman, in the presence of appellant, testified that he remembered the substance of the testimony of the absent witness, and proceeded to state it. He was subjected to a rigid cross-examination by counsel for appellant. The correctness of his recollection might have been disputed. The credibility of the witness Beekman, and the weight to be given his testimony, was a question for the jury. The fact that the testimony of the absent witness was not...
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Ivey v. State
...in the presence of the accused with full opportunity of cross-examination is admissible upon a proper showing of absence. (See State v. Harmon, 70 Kan. 476; State v. Gentry, 121 P. 352; State v. et al., 25, L. R. A. N. S. 868 and note (S. D.). SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., c......
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...were set up and managed by the defendants. We think there is abundant testimony to sustain the convictions." (p. 511.) In State v. Harmon, 70 Kan. 476, 78 P. 805, defendant was charged with keeping a gaming house. The decision turns on the admission of testimony of an absent witness and of ......
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