State v. Ortego, 29374.

Decision Date08 March 1945
Docket Number29374.
Citation157 P.2d 320,22 Wn.2d 552
CourtWashington Supreme Court

Anthony Ortego was convicted of assault in the third degree in a justice of the peace court, and on appeal to the superior court the prosecution was dismissed, upon sustaining of defendant's objection to the State's offer of proof and from the order of dismissal the State appeals.

Reversed with directions.

MILLARD and BLAKE, JJ., dissenting.

Appeal from Superior Court, King County; James T Lawler, judge.

Lloyd Shorett and Leo J. Peden, both of Seattle, for appellant.

William B. Magee, of Seattle, for respondent.


The legal question here involved is whether, in a criminal case the testimony given at a former trial by a witness, or witnesses, who cannot be produced at a subsequent trial, may, over the objection of the accused defendant, be proved by parol at the later trial. The facts giving rise to this question are as follows:

Upon a trial Before the Honorable Guy B. Knott, justice of the peace in and for Seattle precinct, in King county, Washington, the defendant, Anthony Ortego, was found guilty of the crime of assault in the third degree and was sentenced to pay a fine of fifty dollars and costs. Defendant thereupon gave notice of appeal to the superior court and posted a statutory appeal bond.

Shortly Before the trial in the superior court, subpoenas were duly issued to be served upon a number of witnesses, including Leonard Cain, who was the prosecuting witness, also Iva Mae Cain and Glenn Perry, all of whom had testified in the preceding trial Before the justice of the peace. The deputy sheriff to whom the subpoenas were delivered for service made a return thereof that after due inquiry and diligent search he was unable to find any of these three witnesses.

Upon the trial in the superior court, the deputy sheriff, called as the first witness for the state, testified in detail, on both direct examination and cross-examination, concerning the efforts he had made to locate the three witnesses above named and reiterated his inability to find them.

The state thereupon called as a witness Honorable Guy B. Knott, the justice of the peace Before whom the defendant previously had been tried and convicted of the offense here involved, and for whom a subpoena had likewise been theretofore issued.

Judge Knott testified that in the justice court trial, Leonard Cain, one of the persons referred to above, was called as a witness and, upon being sworn, gave his testimony in the presence of the defendant. Judge Knott was then asked by the state's counsel to relate to the jury the testimony which Leonard Cain had given on that occasion. Defendant's counsel objected, on the ground that Judge Knott's testimony would be hearsay evidence, and the trial court sustained the objection.

The state's counsel thereupon offered to prove by Judge Knott that, in the trial Before him, Leonard Cain and Glenn Perry, two of the witnesses mentioned above, were sworn and testified in the presence of the defendant and his counsel; that no reporter was present at that time to take notes of the proceedings, but that Judge Knott himself presently had with him, in his own handwriting, though not word for word, the substance of the testimony given by those two witnesses. The offer further recited that Judge Knott had a present recollection of the testimony adduced at the previous trial in his court and would be able to state the substance of what Cain and Perry had testified to at that hearing.

The state's attorney further offered to prove by Mr. John Neergard, who likewise had been subpoenaed as a witness, that he was present at the former trial and that Cain and Perry had there testified, in reference to the offense here involved, that defendant had struck Cain, the complaining witness, knocking him down and then kicking him in the face, all without provocation.

Defendant's counsel objected to the offer of proof, on the ground that the proffered testimony was pure hearsay and violated defendant's constitutional rights. The trial court sustained the objection. The state then announced that it had no other witnesses, particularly with reference to the actual commission of the assault, and would therefore rest its case. The defendant thereupon moved that the case be dismissed. At the conclusion of the argument on defendant's motion for dismissal, the trial court made a specific finding that the three witnesses above mentioned were not present at the trial in the superior court because, after diligent search for them, they could not be found. The court then granted defendant's motion, discharged the jury, and later entered a formal order of dismissal. The state appealed from the order. The defendant has made no appearance upon the appeal.

The exact question here involved has never been decided by this court, although in a number of cases, further reference to which will be made later, the court has expressed its view upon situations analogous to the one with which we are here concerned.

The Federal constitution, in amendment 6, provides that in all criminal prosecutions an accused person shall enjoy the right to be confronted with the witnesses against him. The Washington constitution in Art. I, § 22 and amendment 10 thereof, provides that in such prosecutions the accused shall have the right to meet the witnesses against him, face to face.

With respect to the provision contained in the Federal constitution, it is apparently now generally accepted that this mandatory requirement is not applicable to proceedings in state courts. People v. Wilson, 26 Cal.App. 336, 146 P. 1048; People v. Schwarz, 78 Cal.App. 561, 248 [22 Wn.2d 556] P. 990; State v. Gaetano, 96 Conn. 306, 114 A. 82, 15 A.L.R. 458; Blackwell v. State, 79 Fla. 709, 86 So. 224, 15 A.L.R. 465; Burns v. State, 191 Ga. 60, 11 S.W.2d 350; State v. Brassfield, 40 Idaho 203, 232 P. 1; People v. Penhollow, 42 Hun 103, 49 N.Y.Sup.Ct. 103; People v. Williams, 35 Hun 516, 42 N.Y.Sup.Ct. 516; People v. Fish, 125 N.Y. 136, 26 N.E. 319; Mendenhall v. United States, 6 Okl.Cr. 436, 119 P. 594; West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965, affirming State v. Kline, 109 La. 603, 33 So. 618. Moreover, wholly aside from this accepted doctrine as just expressed, the United States courts have definitely held that the reproduction of testimony of witnesses given at a previous trial, in the presence of the accused, with the privilege of cross-examination accorded to him, does not violate the constitutional mandate. United States v. Macomb, 26 Fed.Cas. page 1132, No. 15,702; Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409; United States v. Greene, D.C.Ga., 146 F. 796.

With respect to the protection afforded by the provisions of state constitutions containing language identical with, or equivalent to, that appearing in the Washington constitution, there is practically in this unanimity in the judicial decisions in this country to the effect that, however expressed, the constitutional right of an accused person to confront the witnesses against him is not infringed by the reproduction of the testimony given by those witnesses at a former trial at which the accused was present and accorded the opportunity for cross-examination, when such witnesses are not available at the subsequent trial.

In an exhaustive annotation covering sixty-nine pages, appearing in (1921) 15 A.L.R. 496 et seq., it is said on page 503:

'The rule has been settled now in practically every jurisdiction that the reproduction of testimony taken at a former trial or in the presence of accused at a preliminary hearing, when the presence of the witness cannot be secured, does not contravene the constitutional right of an accused to confront the witnesses against him, in whatever language such right has been given.'

In support of this rule, the annotator has cited a vast array of cases, the specific recitation of which is unnecessary here. It may be conceded that the principle therein announced has been established only over the vigorous protest of various dissenting judges and even by overruling some other cases, but the fixity of the rule cannot now be doubted. It also is true that many of the cases which support that statement of the rule dealt with situations where the testimony sought to be reproduced was that of a witness who had since died or had left the jurisdiction of the court, as well as situations where the witness could not, after diligent search and inquiry, be found. This court, however, in the case of State v. Waite, 141 Wash. 429, 251 P. 855, 856, expressed its view that such evidence was admissible under whatever circumstances the witnesses at a former trial could not be produced at the subsequent trial. The court said:

'The great majority of the cases support the latter rule [admitting the testimony of a witness who either cannot be found or is shown to be beyond the jurisdiction of the court], and, on principle, it would seem that if the testimony is admissible at all, it ought to be admissible whenever for any cause the witness cannot be produced at the subsequent trial. It is the inability to produce the witness in person that furnishes the foundation for the modification of the general rule [prescribed by the constitution], and this is as potent a reason under the one circumstance as it is under the other.'

In the same annotation appearing in 15 A.L.R., the author says, further, on page 544:

'As has been seen from subd. I. supra [referring to the author's discussion of the rule quoted above] after the passage of the English statutes permitting the preservation of testimony at preliminary examinations, the notes taken by the magistrates...

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26 cases
  • State v. Pugh
    • United States
    • Washington Supreme Court
    • 31 Diciembre 2009
    ...underlying the constitutional mandate guaranteeing to the accused the right to confront the witnesses against him." State v. Ortego, 22 Wash.2d 552, 563, 157 P.2d 320 (1945).6 As mentioned, the 911 tape was admitted as an excited ¶ 25 The modern "excited utterance" exception to the hearsay ......
  • State v. Foster
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    • Washington Supreme Court
    • 11 Junio 1998
    ...194 Wash. 438, 78 P.2d 561 (1938) (admission of documentary evidence does not violate article I, section 22); State v. Ortego, 22 Wash.2d 552, 157 P.2d 320, 159 A.L.R. 1232 (1945) (reproduction of testimony given by witnesses at former trial where defendant was present did not violate artic......
  • State v. O'Cain
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    • Washington Court of Appeals
    • 2 Julio 2012
    ...the witnesses against him.’ ” 167 Wash.2d at 837, 225 P.3d 892 (alteration in original) (quoting State v. Ortego, 22 Wash.2d 552, 563, 157 P.2d 320 (1945)). Although the Pugh court found it dispositive that the res gestae doctrine was widely utilized at the time of the state constitution's ......
  • Kreck v. Spalding
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 13 Diciembre 1983
    ...reason of the general rule. Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 78 L.Ed. 674 (1934); accord, State v. Ortego, 22 Wash.2d 552, 563, 157 P.2d 320 (1945). The Massachusetts Supreme Court, admitting in evidence four certificates from the state department of health to prove ......
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