State v. Heffernan

• Decision Date: 16 December 1908
• Citation: 22 S.D. 513,118 N.W. 1027
• Parties: STATE v. HEFFERNAN et al.
• Court: South Dakota Supreme Court

22 S.D. 513

118 N.W. 1027

STATE

v.HEFFERNAN et al.

Supreme Court of South Dakota.

Dec. 16, 1908.

Appeal from Circuit Court, Kingsbury County.

Thomas Heffernan and Ellen J. Taylor were convicted of adultery, and they appealed from the judgment and order denying a new trial. Reversed, and new trial ordered.D. A. Crawford and George G. Yeaman, for appellants.

S. W. Clark, Atty. Gen., William H. Warren, State's Atty., and Chas. P. Warren, Asst. State's Atty., for the State.

HANEY, P. J.

Having been convicted of adultery and sentenced to imprisonment in the penitentiary, the defendants in this action appealed from the judgment of the circuit court and its order denying their application for a new trial.

It is contended there was reversible error in allowing the stenographer who reported the evidence on the preliminary examination to read from his transcript the testimony of certain witnesses who then testified on behalf of the government, but who were absent from the state when the action was tried in the circuit court. As this testimony was extremely damaging to the accused, a reversal is unavoidable if error was committed with respect to its introduction. Appellants' argument may be summarized thus: (1) The testimony of absent witnesses may not properly be introduced under any circumstances on the trial of a criminal action against the defendants' objection. (2) Assuming there may be exceptions to the rule, the present case falls within no recognized exception. (3) If it does, a proper foundation was not laid in this instance. Our state Constitution declares: “In all criminal prosecutions the accused shall have the right *** to meet the witnesses against him face to face.” Article 6, § 7. Our Revised Code of Criminal Procedure provides: “In a criminal action the defendant is entitled: *** To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the court.” Section 7, sub-sec. 3.

Numerous decisions have been cited by the learned Attorney General which appear to hold that the foregoing requirement of the Constitution may be satisfied by an opportunity to confront and cross-examine witnesses before the examining magistrate, and that a statute authorizing the introduction of testimony taken down in the presence of the accused on the preliminary hearing, to be introduced on the trial when the witness is dead, insane, or beyond the jurisdiction of the court, might be sustained. Such statutes are in force in several jurisdictions. The one in California reads as follows: “In a criminal action the defendant is entitled: *** To produce witnesses on his behalf, and to be confronted with the witnesses against him, in the presence of the court, except that (1) where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness; or (...