State v. King

• Decision Date: 28 March 1902
• Docket Number: 1302
• Citation: 24 Utah 482,68 P. 418
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, Respondent, v. ROBERT L. KING and JAMES LYNCH, Appellants

68 P. 418

24 Utah 482

THE STATE OF UTAH, Respondent, v. ROBERT L. KING and JAMES LYNCH, Appellants

No. 1302

Supreme Court of Utah

March 28, 1902

Appeal from the Third District Court, Salt Lake County.--Hon. E Booth, Judge.

The defendants were convicted of murder in the first degree, and appealed.

AFFIRMED.

Will F Wanless, Esq., for appellants.

Hon. M A. Breeden, Attorney-General, and Hon. W. R. White, Deputy Attorney-General, for the State.

MINER, C. J. BASKIN and BARTCH, JJ., concur.

OPINION

MINER, C. J.

--The information in this case charges, in the usual form, that, on the eleventh day of September, 1900 in Salt Lake county, the defendants willfully, unlawfully, feloniously, deliberately, premeditatedly, and of their malice aforethought, did kill and murder Godfrey Prowse. The testimony shows that the defendants, and a third man unknown, entered the gambling house of the deceased in the nighttime, with their faces masked, and with revolvers in their hands, and there shot and killed the deceased. Their evident purpose was robbery. Defendant Lynch was shot and wounded by Prowse. About thirteen shots in all were fired by all parties, most of them by the three masked men. All three masked men directed their shots at Prowse. Both defendants were identified, and revolvers were found in the alley near where the shooting was done.

Paul Johnson, an eyewitness to the shooting, was called, sworn and examined by the prosecution, and was cross-examined by the defendants on the preliminary hearing before the magistrate. He was not present at the trial, and the prosecution, under objection, was permitted to read his testimony taken on such preliminary examination to the jury. This is alleged as error. Section 4513, Revised Statutes 1898, so far as material, reads as follows: "In criminal prosecutions the defendant shall be entitled: 4. To be confronted by the witnesses against him, except that 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 has had an opportunity to cross-examine, the witness, or where the testimony of a witness on the part of the State, who is unable to give security for his appearance, has been taken conditionally in like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined, or has had an opportunity to cross-examine, the witness, the deposition of such witness may be read, upon it being satisfactorily shown to the court that he is dead or insane, or can not, with due diligence, be found within the State." The appellants contend that this statute is unconstitutional, within the meaning of section 12, article 1, of the Constitution, which provides that the accused shall have the right "to be confronted by witnesses against him," and that no sufficient foundation was laid for the introduction of the testimony of the witness Johnson. It appears from the record that witness Johnson was sworn and examined upon the preliminary hearing before the magistrate, and that the accused and his counsel had an opportunity, and did cross-examine him. Mr. Barrett, a person with whom Johnson was rooming at the time, and who was intimately acquainted with him, testified that he did not think Johnson was in the city; that he last saw him three weeks prior to the time of the trial, at which time he was rooming with the witness; that when he left he said he was going to Oregon that day; that he left the city about three weeks prior, and witness had not seen him since. A police officer testified that he knew Johnson, and served a subpoena on him on the twelfth day of October, to appear at the trial set for October 22d. This subpoena was duly returned. Johnson said to the policeman, when subpoenaed, that he was going away, but would return. The witness stated that he had not seen him since. Mr. Sheets, a police officer, testified that he saw Johnson on the twelfth of October, but had not seen him since; that at that time Johnson said he was going away to the State of Oregon, and said he would write a letter back so his address would be known; that no letter had been received from him. Witness further stated that Johnson was not in the city. Johnson's name was called in court, but he did not answer. When the case was continued from the twenty-second to the twenty-ninth day of October, an order was made by the court requiring all witnesses to be present in court on the twenty-ninth. Johnson was not present in court at this time. A subpoena was duly issued for him, and thereafter on the same day was duly returned, showing that, after due diligence, search, and inquiry by different police officers, the witness could not be found, and his whereabouts were unknown. Every effort possible was made to find the witness, without avail. As a general rule, under Constitutions like that of Utah, the accused is entitled to be confronted with the witnesses against him. As held in State v. Mannion, 19 Utah 505, 512, 57 P. 542, 544, 45 L.R.A. 638, 75 Am. St. Rep. 753: "Under the Constitution and statutes of the State the accused had a right to be present at the trial, to be confronted by the witnesses against him, and to meet his accusers face to face. He also had the right to appear and defend against the accusation preferred against him in person and by counsel. He had the right not only to examine the witnesses, but to see into the face of each witness while testifying against him, and to hear the testimony given upon the stand. He had the right to see and be seen, hear and be heard, under such reasonable regulations as the law established. By our Constitution it is clearly made manifest that no man shall be tried and condemned in secret, and unheard." The chief purpose in requiring that the accused shall be confronted with the witnesses against him is held to be to secure to the defendant an opportunity for cross-examination; so, that if the opportunity for cross-examination has been secured, the test of confrontation is accomplished. If the confrontation can be had it should be had. By taking the testimony of the witness Johnson in the presence of the accused upon the examination at a time when he had the privilege of cross-examination, this constitutional privilege is satisfied, provided the witness can not, with due diligence, be found within the State. The constitutional requirement of confrontation is not violated by dispensing with the actual presence of the witness at the trial after he has already been subjected to cross-examination by the accused, and the other requirements of the statutes have been complied with. In 1 Greenl. Ev. (16 Ed.), sec. 163g, p. 284, it is said: "The death of the witness has always, and as of course, been considered as sufficient to allow the use of his former testimony. The absence of the witness from the jurisdiction, out of reach of the court's process, ought also to be sufficient, and is so treated by the great majority of courts. Mere absence, however, may not be sufficient, and it is usually said that a residence or an absence for a prolonged or uncertain time is necessary. A few courts do not recognize at all this cause for non-production; a few others deny it for criminal cases. Neither position is sound. Inability to find the witness is an equally sufficient reason for non-production, by the better opinion, though there are contrary precedents. The sufficiency of the search is usually and properly left to the trial court's discretion. Absence through the opponent's procurement should, of course, be a sufficient reason for non-production. Illness, by causing inability to attend, has the same effect. The phrase usually employed as a test is, 'so ill as to be unable to travel.' The application of the principle should be left to the trial court's discretion." Numerous citations of authority will be found in the notes to this section. In Finn v. Com., 5 Rand. 701, Mendum v. Com., 6 Rand. 704, and Brogy v. Com., 10 Grat. 722, witnesses who had testified on a former trial were not dead, but were out of the State, and the testimony was held to be admissible, the same as if the witnesses were dead. In People v. Oiler, 66 Cal. 101, 4 P. 1066, the testimony of a witness taken on a preliminary examination was admitted on the trial under a provision of the statute applicable to a deceased witness, and the statute was held constitutional. The same rule is held in Summons v. State, 5 Ohio St. 325; Howard v. Patrick, 38 Mich. 795; Mattox v. U.S., 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409; Cooley, Const. Lim., 587. The principal object of the provision in the Constitution was to prevent depositions or ex parte affidavits from being used against the accused in the place of a personal examination and cross-examination of the witness, wherein the accused would have an opportunity to cross-examine, and thereby test the recollection and truthfulness of the witness, and also to compel him to stand face to face with the jury, counsel, and accused, that they might look at him and judge of his truthfulness and candor and of his testimony by his manner of testifying. As said in Mattox v. U.S., 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409: "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, and that, if notes of his testimony are permitted to be read, he is deprived of the advantage...