State v. McClellan
| Decision Date | 07 November 1908 |
| Docket Number | 16,026 |
| Citation | 98 P. 209,79 Kan. 11 |
| Parties | THE STATE OF KANSAS v. BURTON MCCLELLAN |
| Court | Kansas Supreme Court |
Decided July, 1908.
Appeal from Sedgwick district court; THOMAS C. WILSON, judge.
Judgment reversed and case remanded.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW--Absence of a Witness--Testimony Given at a Former Trial. Before the testimony of a witness given at a former trial can be read in evidence by the state against a defendant in a criminal prosecution, over his objection, it must be made to appear that the witness who gave such testimony can not, by the exercise of reasonable diligence be produced.
2. CRIMINAL LAW--Same. In such a case the mere production of a subpoena which has been issued for the absent witness, with a return of non est thereon, without any further showing as to the residence or whereabouts of such witness or of the extent of the search made for him, is insufficient, and the introduction of such evidence under such circumstances is error.
3. CRIMINAL LAW--Evidence of General Reputation. In a criminal case the defendant, to establish his good character, produced a witness who, in chief, testified that he was acquainted with the defendant's general reputation for honesty and integrity in the community where the defendant resided, and that such reputation was good; that he had been acquainted with the defendant six or seven years, during which time the defendant had worked for the witness; and, on cross-examination, the witness stated that the only persons he had heard speak about the character of the defendant were members of his own family. He further said: "I don't know as I ever heard it questioned--that it ever came up any more than any other gentleman's." The court struck out the evidence of the witness on the ground that it did not tend to establish a general reputation. Held, error.
Fred S. Jackson, attorney-general, and W. A. Ayres, county attorney, for The State.
S. B. Amidon, D. M. Dale, and J. A. Conly, for appellant.
OPINION
This action was appealed from the district court of Sedgwick county, where the defendant was convicted of robbery in the first degree.
On the trial the state was permitted to read in evidence the testimony of a witness given at the preliminary examination of the defendant for the charge upon which he was then being tried. As a foundation for the introduction of this evidence the county attorney produced a subpoena which had been issued for the witness and upon which was a return by the sheriff of non est. Upon this showing alone the evidence was read to the jury. It does not appear when the subpoena was delivered to the sheriff, or what search had been made to find the witness, or where he resided. The showing made was insufficient to establish that the witness was beyond the jurisdiction of the court at the time of the trial and could not, by the exercise of reasonable diligence, be produced as a witness. This was erroneous. The testimony given by a witness at a former trial may not be given in evidence as a mere matter of course. Some adequate justification therefor must exist. The admission of this class of evidence is permitted, not merely because it was taken by a court stenographer and may therefore be reproduced with accuracy, but only for the reason that the living witness can not, by the use of reasonable diligence, be produced. If the absent witness is dead, insane, beyond the jurisdiction of the court, or secreted by the adverse party, then the former testimony may be shown, even though it may be necessary to do so by the evidence of witnesses who heard the testimony given.
Other causes for the use of such evidence than those enumerated may, in some cases, be sufficient; but as a general rule it may be said that whenever it is reasonably possible to produce the living witness it should be done. The right of every litigant to meet the important witnesses of his adversary face to face, whenever and wherever their evidence is likely to affect his material interests, is recognized by all practicing lawyers to be of inestimable value. This is especially true of defendants in criminal cases, and they should receive reasonable protection in this respect, even when, as in this case, their constitutional right to meet the witnesses against them face to face has been exercised by a cross-examination of the witness at his previous examination. The right to have all adverse witnesses testify personally exists independent of the constitution, and the spirit of common fairness which pervades all courts of justice is a sufficient guaranty that it will be recognized and enforced. In legal theory it may be presumed that witnesses will always tell the same story when under oath, but, in practice, we know they do not. Mental confusion, lapse of memory, and other circumstances existing when a witness testifies, may give color to his evidence which subsequent reflection will change materially. Because of this fact, familiar to all lawyers, parties often prefer to use the former testimony of a witness rather than take the hazard of a reexamination. This should not be permitted when the witness can be produced. For a full discussion of this question, and an elaborate citation of authorities, see Railroad Co. v. Osborn, 64 Kan. 187, 67 P. 547; The State v. Nelson, 68 Kan. 566, 75 P. 505; The State v. Harmon, 70 Kan. 476, 78 P. 805.
The defendant further complains because the court excluded evidence offered by him in support of his good character. A witness was produced who testified upon his examination in chief that he resided in Wichita and had been acquainted with the defendant six or seven years; that he knew the defendant's general reputation in that community for honesty and integrity, and that it was good. On cross-examination he stated that the defendant had worked for him; that he had heard no one outside of his own family talk about it--had never heard the matter discussed. He further stated: "I don't know as I ever heard it questioned--that it ever came up any more than any other gentleman's." The testimony of the witness was stricken out by the court, for the reason that the limited number of persons whom the witness had heard speak about the...
To continue reading
Request your trial
-
State v. Brown
...that the witness who gave such testimony at the former hearing cannot by the exercise of reasonable diligence be produced. State v. McClellan, 79 Kan. 11, 98 P. 209. In the McClellan case this court spoke of the rule as 'Other causes for the use of such evidence than those enumerated may in......
-
State v. Scott
... ... working in Missouri and refused to accept service and appear ... as a witness. The state could not compel his attendance, and ... it was entitled to use his former testimony. ( The State ... v. Nelson, 68 Kan. 566, 75 P. 505; The State v ... McClellan, 79 Kan. 11, 13, 98 P. 209; The State v ... Stewart, 85 Kan. 404, 413, 116 P. 489.) ... The ... defendant undertook to impeach Lee. The first witness called ... for that purpose, after testifying that he knew the general ... reputation of Lee for truth and veracity in the vicinity ... ...
-
State v. Guthrie
...Section 10 of the Bill of Rights and 60-2934, supra, is well summed up in State v. Tyler, 187 Kan. 58, 353 P.2d 801, where State v. McClellan, 79 Kan. 11, 98 P. 209, Syl. p1, is quoted as "Before the testimony of a witness given at a former trial can be read in evidence by the state against......
-
State v. Bonskowski
...v. Burton, 101 Kan. 62, 165 P. 847; State v. Gentry, 86 Kan. 534, 121 P. 352; State v. Stewart, 85 Kan. 404, 116 P. 489. In State v. McClellan, 79 Kan. 11, 98 P. 209, relied on by appellant as supporting a contrary conclusion, the trial court's action in admitting testimony of a witness giv......