State v. Wing
| Decision Date | 24 June 1902 |
| Citation | 64 N.E. 514,66 Ohio St. 407 |
| Parties | STATE v. WING. |
| Court | Ohio Supreme Court |
Exceptions from court of common pleas, Hamilton county.
Thomas Wing was convicted of robbery. To an order granting a new trial, the state excepts. Exceptions overruled.
The defendant in error, Thomas Wing, in April, A. D. 1900, was arrested on a warrant issued by a justice of the peace of Hamilton county on an affidavit filed with him which charged Wing with having committed the crime of robbery in said county on or about the 19th day of April, 1900. The accused was taken before the magistrate for a preliminary hearing and was represented by counsel. Among the witnesses called and examined for the state was one Lizzie Waddell. She testified that she had known the accused for some years; that on the night of the robbery, at about 8:45 o'clock, he called at her room, on Ninth street, in Cincinnati, and displayed to her a roll of money, made up of $5 and $10 bills. She asked where he got the money, and he smiled, and told her to watch the newspapers in the morning. He gave her $25 of the money with which to buy him some wearing apparel and then left. The magistrate found the facts sufficient to hold the prisoner to answer the charge in the court of common pleas, and it was so done. At the April term of that court Wing was indicted by the grand jury for the same crime, for which he was bound over, and in December of the October term for the year 1900 he was put upon trial to a jury. Lizzie Waddell, who had testified for the state at the preliminary hearing before the justice of the peace, did not appear at the trial in the court of common pleas. Search was made for her several days before the trial, by an officer with a subpoena, at the several places where she had resided in Cincinnati; and, on the day before the trial was to begin another officer also made search for her, but she could not be found. On these and other facts, perhaps, the court found the witness was without the jurisdiction of the state of Ohio, and, after diligent search, could not be found. The court, having reached this conclusion, over the objection of the accused permitted the state to offer and introduce the evidence of Thomas H. Darby, who was present and heard the testimony of Lizzie Waddell, the absent witness, at the preliminary examination on the same charge against the accused which is contained in the indictment. Darby stated that he recollected her testimony, and narrated it to the jury as her testimony, to the effect above stated. Exception was duly entered by the prisoner. He was found guilty, and moved for a new trial on the grounds: The court overruled the motion as to the first, but sustained it as to the second, ground; thus holding that error was committed in allowing Darby to repeat at the trial the evidence of Lizzie Waddell, given before the magistrate. A new trial was granted, to which the prosecuting attorney, in behalf of the state, excepted, and made his exception part of the record by a proper bill of exceptions which, on leave obtained, has been filed in this court under the provisions of sections 7305 and 7306 of the Revised Statutes.
Syllabus by the Court
1. In the trial of a criminal case, evidence of the testimony delivered in a previous trial of the same case by a witness not dead, but beyond the jurisdiction of the court or limits of the state, is not admissible unless it appear to the satisfaction of the trial court that the witness is absent through the connivance or by the procurement of the accused.
Victor H. Schafer, for the State.
Norwood J. Utler and Charles E. Tenney, for defendant in error.
PRICE, J. (after stating the facts).
The right of the state to question in this court any adverse decision made in the trial of a criminal case by the trial court is found in Rev. St. § 7305, which provides: ‘ The prosecuting attorney may except to any decision of the court, and present his bill of exceptions thereto, which the court shall sign, and the same shall be made a part of the record.’ And section 7306 provides: ‘ The prosecuting attorney may present such bill of exceptions to the supreme court, and apply for permission to file it with the clerk thereof, for the decision of the court upon the points presented therein. * * *’ As decided by this court in State v. Granville, 45 Ohio St. 264, 12 N.E. 803, the purpose of such bill of exceptions is not to obtain a reversal, but to determine the law to govern in a similar case. Therefore we have for determination the sole question, did the court of common pleas err in setting aside the verdict of guilty because the evidence of Darby was incompetent? If his evidence was competent on the foundation laid for its admission, the court erred in granting a new trial; but, if such evidence was incompetent, the court discharged its duty, in correcting the mistake on the first opportunity, by giving the prisoner a new trial. If this question had arisen in the trial of a civil action, the way might be clear to sanction such evidence, where a proper showing is made for its introduction. Independent of statute, and at common law, there are many authorities which support the doctrine that in civil actions, if it is made to appear to the satisfaction of the trial court that a witness who has once testified in the same case, with opportunity for cross-examination, is beyond the jurisdiction of the court when the case is retried, his evidence upon the former trial may be given to the jury through the medium of one who heard and remembers it. Some of the authorities on this point are cited in the brief for the state, and we will not refer to others which are equally clear. In this state the legislature has molded a rule in civil cases which is found in section 5242a, Rev. St. This section provides that: This section is somewhat confused in its terms, and its application is not clear in a case where the evidence of the witness or party at a former trial has not been incorporated into a bill of exceptions in a case where it was given, and signed by the judge or court before whom it was given. In case the evidence has been incorporated into a bill of exceptions, and it has been duly signed by the judge or court before whom it was given, the evidence contained in such bill, if it is all contained therein, may be read in another trial of the case, whenever the party or witness, after having testified orally, die, or is beyond the jurisdiction of the court, or cannot be found after diligent search, or is insane, or through any physical or mental infirmity is unable to testify, or has been summoned, but appears to have been kept away by the adverse party. On the occurrence of such events the evidence contained in the bill of exceptions may be read in the further trial of the case by either party. But when the right of the official stenographer to testify is reached, later in the section, it is provided that the evidence taken by him ‘ may be read in evidence by either party on the further trial of the case, and shall be deemed and taken as prima facie evidence of what such deceased party or witness testified to orally on the former trial; or if such evidence has not been taken by such a stenographer the same may be proven by witnesses who were present at the former trial, having knowledge of such testimony,’ etc. It may be doubted whether or not the stenographer can testify in such cases where the party or witness who had testified on a former trial is not deceased, but living, at the time of the further trial. The limitation is very close, and the language may well cause controversy; but we do not need to decide the question, for it is not necessary to do so in order to determine this case. If the right of the stenographer is confined to a case where the party or witness at former trial is deceased, like limitation may be claimed for one who was present at the former trial, having knowledge of the testimony of the party or witness.
The foregoing analysis of the section quoted is made...
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