State v. Nelson

• Decision Date: 06 February 1904
• Docket Number: 13,785
• Parties: THE STATE OF KANSAS v. JOHN NELSON
• Court: Kansas Supreme Court

75 P. 505

68 Kan. 566

THE STATE OF KANSAS v. JOHN NELSON

No. 13,785

Supreme Court of Kansas

February 6, 1904

Decided January, 1904.

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE -- Testimony of Witness at Former Trial -- Bill of Rights. The fact that a witness against the defendant in a criminal case is outside of the state at the time of the trial, and therefore beyond the reach of process, authorizes the introduction in evidence of the testimony given by the witness at a former trial of the same case, notwithstanding an opportunity to subpoena the witness may have been neglected by the prosecution. The requirement of the bill of rights that the accused shall be allowed to meet the witness face to face is complied with in that he has already at the former trial been confronted by the absent witness, and at the later trial meets the witness who gives evidence of what such former testimony was.

2. HOMICIDE -- Instructions Concerning Threats by Deceased. In a homicide case where self-defense was relied on by defendant, there was testimony of threats made against him by the deceased, some of which were communicated to him. The court instructed correctly as to the consideration to be given to threats as showing the state of mind of the deceased, but omitted any reference to the communication of the threats. No instruction as to communicated threats was asked. Held, not error.

C. C Coleman, attorney-general, Mayo Thomas, H. A. Scott, J. H. Dana, and. H. C. Dooley, for The State.

J. H. Keith, and W. E. Ziegler, for appellant.

MASON J. All the Justices concurring.

OPINION

MASON, J.:

John Nelson, charged with the murder of Albert Morris, was convicted of manslaughter in the second degree, and appeals. The principal claim of error is based upon the fact that the prosecution was permitted to introduce in evidence the testimony given by a witness at a former trial of the same case, such witness having left the state, and being therefore beyond the reach of process. It is argued by appellant that this was a denial of the constitutional right of the accused in a criminal prosecution to meet the witnesses face to face. The State v. Foulk, 57 Kan. 255, 45 P. 603, is cited as supporting this contention, but it does not reach the question at issue. There it was held to be error to admit in evidence, over the objection of defendant, the testimony given by a witness in a former trial, but the record disclosed the fact that one objection made to it was that the whereabouts of the witness were known to the state and no reason had been shown why he was not produced. It was agreed that he was confined in the penitentiary, but this did not necessarily prevent his being brought into court. His imprisonment made him an incompetent witness, but this is an objection the defendant might have waived and apparently was disposed to waive. A reading of the opinion shows that the question whether such testimony might be received when for any reason the attendance of the witness could not be procured was neither determined nor discussed by this court.

The question is one upon which the decisions are in conflict. They are well collected and arranged in 14 Cent. Dig., col. 1933, § 1233, and col. 2272, § 1542. But the authorities are so nearly unanimous that they may be said to be in substantial agreement that the former testimony of a witness who has since died may be used in further proceedings in the same criminal case, over the objection of defendant. (14 Cent. Dig., col. 1931, § 1232.)

In The State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257, the rule was applied where the action in which the testimony was used was not technically the same as that in which it was taken, both, however, being prosecutions for the same criminal act. Some cases base this doctrine upon a construction given to the constitution as a matter of compelling necessity, to avoid a failure of justice ( Marler v. The State, 67 Ala. 55, 42 Am. Rep. 95); or upon the ground that the constitutional provision in this regard is but declaratory of the common law, under which this practice was allowed. (State v. McO'Blenis, 24 Mo. 402, 69 Am. Dec. 435.) Others hold that the provision in question is met by the defendant being confronted by the witness who undertakes to state the testimony formerly given by the person since deceased, leaving to be determined only the competency of that kind of evidence. The great majority of courts that have permitted such evidence at all have done so either upon this ground, or upon the theory that, when the defendant has once met a witness face to face and had an opportunity to cross-examine him, the constitutional requirement has been satisfied, and no necessity exists, so far as the constitution is concerned, for again producing that witness in court. The following quotations illustrate these views:

"The requirement that the accused shall be confronted, on his trial, by the witnesses against him, has sole reference to the personal presence of the witnesses, and it in no wise affects the question of the competency of the testimony to which he may depose. When the accused has been allowed to confront, or meet face to face, all the witnesses called to testify against him on the trial, the constitutional requirement has been complied with. This was done on the trial of the case before us, in the district court. Mary Clinch was not a witness on that trial. Being dead, it was an impossibility that she could be a witness on that trial. Logan, however, who was a witness, and did testify, did meet the accused face to face on the trial. The provision in the bill of rights was complied with. And the true question is, not whether the constitutional right of the accused was violated, but whether the testimony given by Logan on the the trial was competent or not." (Summons v. The State, 5 Ohio St. 325, 341.)

"The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination." (Mattox v. United States, 156 U.S. 237, 244, 15 S.Ct. 337, 39 L.Ed. 409.)

It is obvious that if either of these two propositions is sound, it applies with as much force when a witness is beyond the reach of process as when he is dead. In the elaborately considered case of Cline v. The State, 36 Tex. Crim. 320, 36 S.W. 1099, 61 Am. St. Rep. 850, in which the authorities are reviewed at length, the court recognizes this fact and repudiates the entire doctrine, overruling many earlier Texas cases, and taking a position in opposition to the current of judicial decision. Logically, there seems no middle ground. Unless the requirement of the constitution is complied with, the death of a witness should not permit the use of his testimony. If it is complied with, the evidence should be admitted, unless open to some objection other than the constitutional one. Accordingly, as already stated, in a large number of cases it is held that the absence of the witness from the jurisdiction of the court, and the consequent impossibility of compelling his attendance, justifies the use of his former testimony. While there are also many decisions to the contrary, the recent tendency seems to favor the rule stated. This is illustrated by a comparison of a part of section 1195 of 1 Bishop's Criminal Procedure (3d ed.) with the corresponding matter in the same section in 1 Bishop's New Criminal Procedure, which, respectively, read as follows:

"If there has been a prior proceeding involving the same issue between the same parties, conducted regularly in pursuance of law, and therein the defendant had the opportunity to cross-examine the witnesses against him -- not otherwise -- then, if a witness has died, or, says Archbold, if he is insane, though the insanity were of a temporary nature, or if it appeared satisfactorily to the court that he was kept out of the way by means of the procurement of the defendant, or he were bedridden or so ill as to be unable to travel (but not if simply he cannot be found, or, by most opinions, if only he is absent from the state or otherwise beyond the reach of process), what he testified to at the former hearing may be shown in evidence against the defendant in the present one."

"If a witness has died, or has become insane, though but temporarily, or by the opposite party is kept out of the way or is too ill or infirm to come to the court (for it cannot adjourn to his house); or if from any cause for which the party is not responsible, such as residence...