Valuenzuela v. State

• Court: Arizona Supreme Court
• Writing for the Court: Ross, J.
• Citation: Valuenzuela v. State, 30 Ariz. 458, 248 P. 36 (Ariz. 1926)
• Decision Date: 15 July 1926
• Docket Number: Criminal 643
• Parties: FRANK VALUENZUELA, Appellant, v. STATE, Respondent

248 P. 36

30 Ariz. 458

FRANK VALUENZUELA, Appellant, v. STATE, Respondent

Criminal No. 643

Supreme Court of Arizona

July 15, 1926

APPEAL from a judgment of the Superior Court of the County of Yavapai. John J. Sweeney, Judge.

Judgment reversed and cause remanded, with directions.

Messrs Norris & Norris and Mr. F. E. Flynn, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Earl Anderson and Mr. Frank J. Duffy, Assistant Attorneys General, for the State.

Ross J. McAlister, C. J., and Lockwood, J., concur.

OPINION

Ross, J.

The appellant was convicted of the crime of robbery, and he appeals.

The information, filed on the twenty-seventh day of November, 1925, laid the date of the crime as the twenty-second day of November, 1925, and charged the offense as having been committed against one Dea Bing Tan. The trial was had on February 26, 1926.

The evidence showed that the offense was committed about 1:30 o'clock in the morning by two persons with masks over their faces. Dea Bing Tan was the proprietor of a Chinese restaurant in the town of Jerome, and these two persons entered the restaurant and compelled him to open the cash register, from which they obtained $ 145. Dea Bing Tan testified that one of the robbers, in leaping over the counter to get to the cash register, let his mask momentarily slip or fall from his face, and that when that happened he recognized him as appellant. There was present working for Dea Bing Tan another Chinaman by the name of Woo Ling, who also testified in a former trial to recognizing appellant. Several other persons in the restaurant did not recognize appellant as one of the robbers.

At the present trial Woo Ling was absent, and the state was permitted to read his testimony stenographically taken at a previous trial of appellant on the same charge. The introduction of this testimony, over the objection of the appellant, is the principal error urged.

The evidence introduced by the prosecution as the foundation for offering Woo Ling's testimony consisted of a subpoena dated February 25, 1926, and on that day delivered to the sheriff of Yavapai county, for witnesses in the case, including Woo Ling, to be present on February 26, 1926, at 1:30 o'clock in the afternoon. The blank form on the subpoena for the return of the sheriff was not filled out, but attached to it was an affidavit, the body of which reads as follows:

"Wm. R. Fitzgerald, being first duly sworn, deposes and says:

"That he is a deputy sheriff at Jerome, Yavapai county, Arizona, and that on the 25 day of February, A. D. 1926, he received the attached subpoena, and that in conformity with his duty he made a diligent effort to locate and serve all persons named therein with said subpoena; that he was unable to find one Woo Ling, named therein; and that the said Woo Ling is out of the jurisdiction of the above-entitled court; and that affiant is informed and believes that the said Woo Ling is now in the state of Nevada."

The minutes of the clerk show the court, on February 1st, set the case down for trial on February 27th.

Upon this showing the appellant objected to the reading of the testimony of the witness Woo Ling, for the reason "that the material part of the affidavit was upon information and belief, and that there was not sufficient foundation for the introduction of the testimony of an absent witness."

The authority for using secondary evidence of the kind is statutory, and is found in section 1052 of the Penal Code reading as follows:

"Whenever in any court of record the testimony of any witness in any criminal action shall be phonographically reported by an official court reporter and certified by him to be correct, and thereafter said witness shall die or be beyond the jurisdiction of the court in which the cause is pending, and his absence is not procured by the party offering the evidence, either party to the record may read in evidence the testimony of said witness in any subsequent trial or proceeding had in the same cause, subject only to the same objection that might be made if said witness were upon the stand and testifying in open court."

However, before the testimony of a witness upon a previous trial can be used, it must be made to appear by competent evidence that such witness is either dead or beyond the jurisdiction of the court. The preliminary fact, whichever it may be, must be shown to exist. It is not sufficient to show simply that the witness had testified in a prior trial, and that his testimony had been stenographically reported. Our Constitution, as most of the Constitutions of the states, has a provision that a defendant shall have the right to be confronted by his witnesses, or that he shall have the right to meet them face to face. Section 24, art 2, Const. Practically all the states with such a provision have held that the rights guaranteed thereby are not violated, if the defendant, either in person or by counsel, has been present and has cross-examined the witness, or had the opportunity to do so.

It is said that statutes like the one above are declaratory of the rule as it prevailed at the common law. Reynolds v. Fitzpatrick, 28 Mont. 170, 72 P. 510. It has always been the rule that the testimony of a witness who had died, become insane, or had gone beyond the jurisdiction of the court, might be used at a retrial of the same issue between the same parties, and in such cases witnesses who had heard the testimony could testify as to what it was. 8 R. C. L. 217, § 214.

The statute above permits and authorizes the use of the transcript of the testimony as made by the phonographic report instead of the oral testimony of witnesses. By the common law it was absolutely essential that the preliminary proof of the facts permitting the use of the secondary evidence should be established by competent evidence, and, as we conceive it, the same rule should, and does, apply under section 1052, supra. That section does not provide how the death of the witness, or his absence from the court's jurisdiction, shall be established. Possibly the statute might have made the sheriff's return, or his affidavit of diligence to locate and serve the witness sufficient, but it does not do so. We have read a great number...