State v. Meyers

• Decision Date: 26 September 1911
• Citation: 59 Or. 537,117 P. 818
• Parties: STATE v. MEYERS.
• Court: Oregon Supreme Court

117 P. 818

59 Or. 537

STATE v. MEYERS.

Supreme Court of Oregon

September 26, 1911

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

George Meyers was convicted of manslaughter, and appeals. Affirmed.

The defendant, George Meyers, was indicted by the grand jury of Marion county for the crime of murder in the first degree. He was tried, convicted of murder in the second degree, and sentenced. Upon appeal to this court the judgment was reversed, and the case remanded for a new trial. State v Meyers,110 P. 407. As the result of a second trial defendant was found guilty of the crime of manslaughter, and from a judgment sentencing him to the penitentiary for an indeterminate period he appeals, alleging errors, the first of which is that the court erred in permitting, over the objection of counsel for defense, the official reporter reporting the testimony at the first trial, to read to the jury the notes of the testimony of Arthur Meyers, brother of defendant, given at the former trial.

P.H D'Arcy and S.T. Richardson (W.M. Kaiser, on the brief) for appellant.

W.C. Winslow, Deputy Dist. Atty. (John H. McNary, Dist. Atty., on the brief), for the State.

BEAN J. (after stating the facts as above).

Counsel for defendant contends that no foundation was laid for the introduction of the reporter's notes of Arthur Meyers' testimony. For the purpose of laying such a foundation, the state produced as a witness Mr. H.P. Minto, sheriff of Marion county, whose testimony in regard thereto was substantially as follows: That he was acquainted with Arthur Meyers; that he had a subpoena for him, which was produced; that he endeavored without success to find him within the state, and upon inquiry found his residence was Toppenish, Wash., where, he was informed, he was night watchman; that he forwarded the subpoena to Toppenish, which was there served upon Arthur Meyers by the Toppenish chief of police. The sheriff, upon cross-examination, stated he understood from hearsay that the witness was in Portland in attendance at his father's funeral, but that he was not making his home there; that he claimed to be living in Washington, where he claimed to be deputy sheriff. It appears the subpoena was served December 1, 1910. Upon being asked:

"Now during the past week or ten days, during the funeral of Mr. Meyers' father, you understood Mr. Meyers was in Portland? A. I understood he had been. I did not understand he was there at that time. I understood since he was there at the funeral. I had served this suppoena, and I had filed it with the clerk to be preserved here, and I didn't know that Arthur Meyers was at his father's funeral or in Portland until afterwards, and I only know that from hearsay."

Mrs. Ferguson, called by the state, testified that she reported the testimony at the first trial, taking the testimony of Arthur Meyers at that time; that she did not have the transcript of the testimony, but had the original notes which were correct. Whereupon, over the objection of counsel for the defendant, she was permitted to read such notes of Arthur Meyers' testimony, which, in substance, were as follows: That he was on the night of the homicide occupying a room over Zinn's confectionery store in a building owned by his father; that his brother, the defendant, came to his room between 12 and 1 o'clock at night; that they had some words. Defendant had his feet on some highly prized cushions. The witness asked him to remove his feet therefrom, and he would not do it. He tried to reason with him, and he "got funny." He told him he would either have to take his feet down or he would go out and get somebody to make him do so, stating: "We wrangled considerable. I went down on the street. I walked up and down the street a few times and didn't see anybody. I walked down by the White House Restaurant. Mr. Eckhart was in there. I motioned for him to come out. I says: 'George is up in my room, and I cannot do anything with him. I would like for you to come up there and take him out.' I says: 'don't want him arrested. I just want him taken out.' He went up there with me, and George was asleep. He woke him up, and says: 'George, Arthur wants you out of the room. You had better get up and put on your coat and come on. By the way, I have orders to arrest you on sight.' I spoke up and asked what he was arrested for. He said he didn't know; that Doc. Gibson told him to arrest him when he saw him. George said all right, he would go. He went over and got his coat, and started out with him. Q. Where was his coat? A. Hanging up in the partition. The room is a large room. In one end is a partition about eight or nine feet high. It was hanging up on the other side of the partition, the side away from the main part of the room. Q. What kind of a coat did he get? A. A black slicker."

We do not understand it is contended that there was not a prima facie showing made upon the part of the state that the witness Arthur Meyers was residing in Washington at the time the subpoena was served upon him, but it is contended in effect that it should have been shown upon the part of the state that his residence there continued until the date of the trial. From the record it appears that the case was postponed from January until February, on account of the absence of the witness Arthur Meyers, that the sheriff exercised due diligence in searching for the witness, and learned in the ordinary way that he was in the state of Washington. From the testimony of the sheriff it is clear that he did not know until afterwards that the witness was within the state at the time he attended his father's funeral in Portland. It having been shown that the witness resided at Toppenish, Wash., it would be presumed that such residence continued until the time of the trial, unless shown to the contrary. L.O.L. § 799, subd. 33; Wheeler v. McFerron, 38 Or. 105, 107, 62 P. 1015; State v. Walton, 53 Or. 557, 99 P. 431, 101 P. 389, 102 P. 173.

It is further contended that the testimony of Arthur Meyers was incompetent, in that it was an infringement of the constitutional right of the defendant to meet the witness face to face. L.O.L. § 727, subd. 8, provides evidence may be given on the trial as follows: "The testimony of a witness, deceased or out of the state, or unable to testify, given in a former action, suit or proceeding, or trial thereof, between the same parties, relating to the same matter"--while section 1533 provides: "The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings, except as otherwise specially provided in this Code." The Constitution of Oregon (article 1, § 11) provides that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face, and the Constitutions of most of the states, as well as the Constitution of the United States, contain similar provisions. It is held, however, that, where the accused has once enjoyed the right to cross-examine and confront the witness at an earlier trial, his constitutional right to meet him face to face is not violated by the admission of the testimony of such witness when absent at a subsequent trial. If the defendant is represented by counsel at a preliminary examination, and has had an opportunity to cross-examine witnesses, he has enjoyed his right to meet his accuser face to face, and no objection exists to receiving the testimony. Underhill on Crim.Ev. (2d Ed.) § 265; State v. Bowker, 26 Or. 309, 313, 38 P. 124. This question was considered and thoroughly discussed in State v. Walton, supra, where Mr. Justice Bean, in commenting upon section 1536, L.O.L., which declares that in a criminal action the testimony of a witness must be given orally in the presence of the court and jury, except in the case of the witness whose testimony is taken by deposition by order of the court as provided in L.O.L. §§ 1513-1519, inclusive, says: "it relates to the manner in which the testimony is to be given or taken in the first instance, and not to the use which may be made of it after it is once given. The statute was intended to make the general rule concerning the taking of depositions inapplicable to criminal trials; but we cannot think it was designed to abrogate a doctrine so firmly established and generally applied as that of permitting the testimony of a witness given in the manner required by statute to be used by either the state or defense on a subsequent trial, when he has since died or is absent from the state." Numerous authorities are there collated and cited. It is perhaps a sufficient answer to the contention of counsel for defense to say that the testimony of Arthur Meyers in this criminal action was given orally and in the presence of the court and jury at the first trial, and the defendant at that time had full and fair opportunity to cross-examine the witness and meet him face to face. Under the great weight of authority, and with due consideration to public policy, we do not think that we should say that the defendant, after having been once tried and convicted, should go free for the reason that his brother, who was a witness upon the former trial, was for any reason absent from the state, and there was no error in allowing the testimony of the witness Arthur Meyers to be read by the official reporter.

The state introduced in evidence the testimony of Sheriff Minto as to his conversation with defendant relative to his whereabouts after the shooting, to which exception was taken by defendant's counsel. The sheriff testified that the defendant, after his arrest, voluntarily stated that immediately subsequent to the shooting "he had crossed the street from...