State v. Potter

• Citation: 57 P. 431,6 Idaho 584
• Parties: STATE v. POTTER
• Decision Date: 26 May 1899
• Court: United States State Supreme Court of Idaho

57 P. 431

6 Idaho 584

STATE v. POTTER

Supreme Court of Idaho

May 26, 1899

Syllabus by the Court.

1. The admission, as evidence upon the trial of a person charged with a criminal offense, of the depositions of witnesses taken on the preliminary examination of such person upon such charge, is not permissible, under the statutes of Idaho.

2. The Penal Code having prescribed the cases in which depositions taken on preliminary examinations may be used, the court is not authorized to extend the rule to cases other than so prescribed by statute.

APPEAL from District Court, Nez Perces County.

Reversed and remanded.

S. L McFarland and George W. Tannahill, for Appellant.

The court committed a serious error in admitting in evidence over defendant's objection, an alleged deposition of one M Wells. The deposition was not shown to have been taken in the preliminary examination of defendant upon said charge or in any other judicial proceeding and so far as appears upon its face it may have been taken ex parte. It was not certified or authenticated as required by law and was clearly inadmissible. (Idaho Rev. Stats., sec. 7576; State v Braithwaite, 3 Idaho 119, 27 P. 731; Williams v. Chadbourne, 6 Cal. 559; People v. Morine, 54 Cal. 575; People v. Ward, 105 Cal. 652, 39 P. 33; People v. Bojorquez, 55 Cal. 463; Pooler v. State, 97 Wis. 627, 73 N.W. 336; State v. Lee, 13 Mont. 248, 33 P. 690; People v. Chung Ah Chue, 57 Cal. 567.) A deposition not certified by the magistrate otherwise than by a jurat in the ordinary form is not admissible. (People v. Qurise, 59 Cal. 343; People v. Gardner, 98 Cal. 127, 32 P. 880; People v. Mitchell, 64 Cal. 85, 27 P. 862; People v. Cunningham, 66 Cal. 668, 4 P. 1144, 6 P. 700, 846.) Had it been duly certified and authenticated it was inadmissible for the reason that no proper foundation had been laid or shown for its admission. (Idaho Rev. Stats., sec. 8170; State v. Cleary, 40 Kan. 287, 19 P. 776; State v. Hunsaker, 16 Or. 497, 19 P. 605; People v. Lee Sare Bo, 72 Cal. 623, 14 P. 310.) The deposition of one R. E. Goodwin was admitted and read in evidence over defendant's objection. The deposition of defendant read in evidence was more objectionable than either of the others. In fact, only a few extracts of what was alleged as his deposition were read to the jury. It was not identified or attempted to be identified in any manner, and, for aught that appears to the contrary, may have been taken ex parte and even in a matter or proceeding entirely foreign to the charge. It is needless to add that the admission of this matter was prejudicial to defendant, for its purpose and effect is seen at a glance. (People v. Hawley, 111 Cal. 78, 43 P. 404; State v. Cleary, 40 Kan. 287, 19 P. 776; State v. Hunsaker, 16 Or. 497, 19 P. 605; State v. Stevens, 29 Or. 85, 43 P. 947; State v. Pugh, 16 Mont. 343, 40 P. 861; People v. Chung Ah Chue, 57 Cal. 567.)

S. H. Hays, Attorney General, and James W. Reid, for Respondent.

In regard to the depositions which were taken before the magistrate and introduced on the trial, defendant objecting to them for informality, we call the attention of the court to the fact that the depositions were shown to have been taken at the preliminary hearing in this case and after correction where admitted in evidence. As printed in the transcript they are not corrected as to the certificate, as the records show they should be. As corrected they were entitled to be admitted. It will be noticed that they were only introduced in evidence after the correction was directed by the trial court. A proper foundation was laid for the introduction of the depositions. (People v. Riley, 75 Cal. 98 (101), 16 P. 544; People v. Nelson, 85 Cal. 421 (426), 24 P. 1006; People v. Ressell, 3 Hill, 289; State v. Johnson, 12 Nev. 121; People v. Oiler, 66 Cal. 101, 4 P. 1066; 1 Bishop's Criminal Procedure, sec. 1194.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

The defendant was convicted of assault with intent to commit rape, and from the judgment of conviction and the order denying defendant's motion for a new trial this appeal is taken. Appellant assigns several errors in the admission of evidence, but we do not think the rulings of the trial court thereon were erroneous, or, if erroneous, that they could have been in any way prejudicial to the defendant.

The prosecution offered in evidence certain depositions taken upon the preliminary examination of defendant before the magistrate, which were objected to by defendant, upon the ground that they were not taken and certified as required by section 7576 of the Revised Statutes. These depositions are set forth in the record. There is nothing to indicate that they were taken on a preliminary examination of the defendant, and to one of them--the deposition of M. Wells--there is no certificate, except the jurat in the ordinary form. The court permitted the justice of the peace to add certificates to the depositions after they were offered in evidence. There does not appear to have been anything that could be called diligence manifested on the part of the state in endeavoring to procure the attendance of either of the witnesses.

The objection on the part of the defendant to the introduction of the depositions taken at the preliminary examination of the defendant, upon the trial in the district court, raises a very important question, and one which requires, and has received, much and careful investigation at the hands of the court. The first question that confronts us is, Are depositions of witnesses, taken upon the preliminary examination of the person charged with a criminal offense, admissible as evidence against such person upon his trial for the offense? It seems to be conceded by both parties in this case that they are; but we find no authority for the admission in the statutes of Idaho. The use by the grand jury of the depositions of witnesses taken upon a preliminary examination has been recognized by statute ever since the act of the first session of the territorial legislature, but we find no statute of either the territory or state permitting or authorizing the use of such depositions on the trial. The Revised Statutes, title 10, chapter 4, provides for the taking of depositions of witnesses on the part of the defendant, and also provides that the depositions so taken "may be read by either party on the trial, upon its appearing that the witness is unable to attend by reason of his death, insanity, sickness or infirmity or his continued absence from the territory [state]." It is further provided (Rev. Stats., tit. 10, c. 5, sec. 8176): "When an issue of fact is joined upon an indictment, the defendant may have any material witness residing out of the territory [state] examined in his behalf as prescribed in this chapter and not otherwise." Section 8189 provides that the depositions so taken "may be read by either party on the trial, upon it being shown that the witness is unable to attend from any cause whatever"; but there is no provision of our Revised Statutes permitting the use of the depositions taken on a preliminary examination to be used against the defendant upon his trial. ...