State v. Vanella

• Decision Date: 07 January 1910
• Citation: 106 P. 364,40 Mont. 326
• Parties: STATE v. VANELLA.
• Court: Montana Supreme Court

106 P. 364

40 Mont. 326

STATE v. VANELLA.

Supreme Court of Montana

January 7, 1910

Appeal from District Court, Yellowstone County; Sydney Fox, Judge.

Robert Vanella was convicted of murder in the second degree, and he appeals. Affirmed.

O. W McConnell, for appellant.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for the State.

HOLLOWAY J.

Robert Vanella was convicted of murder in the second degree, and appeals from the judgment and from an order denying him a new trial.

1. It is urged that the defendant was deprived of his right to meet the witnesses against him face to face, and that the provision of the Constitution (article 3, § 16) was thereby violated. Upon the trial the deposition of each of two witnesses for the state was read in evidence against the defendant. That the right secured to the accused by the provision of the Constitution above is not an absolute one is determined by the next succeeding section, wherein provision is made for taking and using the deposition of a witness in a criminal case. But it is earnestly urged that to warrant the use of such a deposition it must have been taken in the manner prescribed by the Penal Code (sections 9494-9504, Rev Codes). The record does not show whether the deposition of the witness James Lauratz was or was not taken as the law requires; and, in the absence of any objection to the use of it, we do not deem it necessary that such fact should appear. This court will not presume that error was committed.

The record, however, does disclose that the deposition of the witness Tony Rose was taken by stipulation, before a notary public; and the Attorney General insists that, having been taken by stipulation and used without objection, the defendant waived the right to insist that it should have been taken as the statute prescribes. To this counsel for defendant replies that the right of the defendant to meet the witness against him face to face, except where a deposition used has been taken as prescribed by law, is one which neither the defendant nor his counsel can waive; and in support of this view the following, from State v. Mannion, 19 Utah, 505, 57 P. 542, 45 L. R. A. 638, 75 Am. St. Rep. 753, is quoted: "That which the law requires and makes essential in the trial of persons accused of a felony cannot be dispensed with, either by the consent of the accused or by his failure to object to unauthorized methods pursued by those in authority." We fully agree with this as an abstract principle of law, and of its proper application to the facts of that particular case, where the defendant was ordered out of the presence of a witness who was testifying against him, and out of the presence of the jury while his trial was proceeding.

The interest of the state in the life of every citizen extends to one who is on trial for a capital offense, and therefore it is a principle of law, recognized everywhere, that after indictment returned or information filed, nothing shall be done by the court in the case in the absence of the accused. Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011. And the courts are quite unanimous in holding that the right of the accused to be present at all times during his trial is one which the state does not permit to be waived. The jurisdiction of the court to try the accused is derived from the law, and the consent of the accused cannot confer jurisdiction if the court does not have it; and therefore the right of the defendant to be tried by a court having jurisdiction is one which is not waived by failure to make objection at the trial. It is to rights of the character of these that the principle quoted above is applicable. In other words, the rights guaranteed to one accused of crime fall naturally into two classes: (a) Those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be. That the Supreme Court of Utah never intended its declaration quoted above to be invoked in behalf of every constitutional guaranty in favor of the accused is demonstrated by the later decision in State v. Mortenson, 26 Utah, 312, 73 P. 562, 633, where the question now before us was fully considered and decided with reference to a constitutional provision identical with that contained in section 16, art. 3, above. In this last case counsel for the defendant and the state stipulated in open court that, if an absent witness were present, he would testify to certain facts, which were recited to the jury. Upon appeal after conviction the accused invoked the constitutional provision that he should have confronted the witness, but the court said: "Upon examination it will be noticed that the right of the accused to be confronted by the witnesses against him, secured by the constitutional provision above referred to, falls within the class personal to the accused. It is a personal right, a personal privilege of which every defendant in a criminal proceeding may avail himself. It is limited to criminal prosecutions, and in no way affects the jurisdiction of the court to try the cause or to pass a valid judgment." The authorities are reviewed at great length by the Utah court, and the conclusion is reached that the defendant waived the right insisted upon. A reference to the foregoing decision will suffice here.

In this present case the depositions were used without objection. The trial court was not called upon to rule, and did not make any ruling, and we are therefore somewhat at a loss to know what we are to review, unless it be the nonaction of the trial court in failing to volunteer and interpose its objection to the use of the depositions. It appears from the record, also, that by stipulation the deposition of a witness for the defendant was taken and used by him. In People v. Murray, 52 Mich. 288, 17 N.W. 843, this same question came before the Supreme Court of Michigan, and in an opinion by Judge Cooley, concurred in by Chief Justice Campbell and Judge Graves, the matter was disposed of by the learned members of that court as follows: "A chief ground of error relied upon is that the prosecution was allowed to put in evidence certain depositions, taken out of court, of witnesses not present at the trial. The facts seem to be that the attorneys for the respective parties stipulated to put in certain depositions on both sides, and they were put in accordingly. This, it is said, was in violation of the respondent's constitutional right to be confronted with his witnesses. But the court made no ruling in the matter; what was done was voluntarily done by the parties; the defendant had the benefit of the stipulation, and, for aught we can know, it may have been made chiefly in his interest. But however that may be, when the court has made no ruling, we can have nothing to review. This court cannot relieve a party from a criminal conviction because of his own voluntary action on the trial. *** The defendant undoubtedly had a constitutional right to be confronted with his witnesses. He waived that right in this case, apparently for his own supposed advantage, and to obtain evidence on his own behalf. It would have been a mere impertinence for the court to have interfered and precluded this stipulation being acted upon. But it would have been more than an impertinence; it would have been gross error. And it would be palpable usurpation of power for us now to set aside a judgment for a neglect of the court, not at the time complained of, but in respect to something where any other course would have been plain error. Under the view taken by the respondent, it would seem that when the evidence had been obtained under his stipulation, the court was put in position where it was impossible to avoid error; for if the evidence was received, he might complain, as he does now, that his constitutional right was violated, and if the court refused to receive it when he was consenting, the respondent would be entitled to have the conviction set aside for that error. I shall always be ready to preserve in its integrity every constitutional right; but I do not understand that the Constitution is an instrument to play fast and loose with in criminal cases any more than in any other, or that it is the business of courts to be astute in the discovery of technical difficulties in the punishment of parties for their criminal conduct." In the Utah and Michigan cases the defendant in each instance was convicted of a capital offense and the judgment of conviction was affirmed.

Section 16, art. 3, of the Constitution, which is here invoked contains a number of provisions similar to the one specifically relied upon: (a) The accused shall have the right to appear and defend in person and by counsel; but, if he declines counsel, and prefers to make his own defense, could it be asserted seriously that his constitutional right had been violated? (b) He has the right to have process to compel the attendance of witnesses in his behalf; but, if he does not demand the process, he cannot complain. (c) He has the right to a trial; but he may plead guilty, and obviate the necessity of a trial. (d) He is entitled to a trial by an impartial jury; but, if on the voir dire examination a juror discloses that he is not impartial, and the accused fails to challenge him, can he complain after verdict against him? Section 18, of the same article, provides: "No person shall be compelled to testify against himself in a criminal proceeding"--but if the accused goes upon the witness stand in his own behalf, he is subject to all proper cross-examination, even though in such cross-examination he may be compelled to incriminate...