Territory v. Curran

OPINION OF THE COURT BY ROBERTSON, C.J. (Quarles, J., dissenting.) This case comes to this court upon the defendant’s bill of exceptions. The defendant has no counsel, and no brief has been filed on his behalf. The record has nevertheless been examined and the only exception which seems to require notice is that which was taken to the admission in evidence of the testimony of one Derda who testified as a witness on a prior trial of the case but who was absent from the Territory at the time of the trial which resulted in the conviction of the defendant. The defendant was charged with having committed the offense of assault and battery, and, the jury having disagreed, the case was called up again for trial on the 22d — 422 — day of November, 1915. At the outset counsel for the defendant interposed an objection to certain jurors who had been summoned under a special venire. The court suggested that the case should be postponed for two weeks, upon the idea, apparently, that the ground of objection would in the meantime have been removed. After some discussion the suggestion was accepted by counsel. The prosecuting attorney then stated that as the trial was to be postponed he would ask that it stand over until the 15th of December for the reason that an important witness for the prosecution (meaning Derda) who was expected to return (to Honolulu) on November 13 would not return until December 14, by a transport due to arrive on that date. To this, defendant’s counsel objected, stating that the prosecution had already been granted a continuance because of the absence of that witness. The upshot of the discussion which followed was a mutual agreement that the trial should be proceeded with at once. The trial having been commenced, the prosecution put in testimony showing that the witness Derda is an enlisted man in the United States army stationed at Honolulu; that on account of the illness of his wife he was granted a furlough for the period of eighty-three days and left for San Francisco on the transport “Logan” on September 4, 1915; that the furlough would expire on December 4, and that he was expected to reach Honolulu on the transport which would arrive on the 13th or 14th of December; and that he was not in the Territory at the time of the trial. It further appeared that the prosecuting officers knew that the witness was intending to leave the Territory on furlough and took no steps to subpoena him or have him detained as a witness.' The court reporter was then called and testified to having recorded the testimony of Derda as given on the previous trial of the case, and that he had correctly transcribed his shorthand notes. The transcript of the testimony of the witness — 423 — was then offered in evidence and admitted over the objection of the defendant. The grounds of objection were stated by counsel to be that the evidence was in violation of the provision of the Sixth Amendment which entitled the defendant to be confronted with the witnesses against him; that the witness in question was not shown to be permanently absent from the Territory; and that the prosecution was negligent in not seeking to keep the witness in the jurisdiction, and in not making application for a continuance of the case until his return. When the evidence was offered the court again suggested that the case might be postponed, saying “The court is well aware that the defense has had its own choice in this matter, from the time the matter was called for trial yesterday, they could proceed or take a continuance, and they have that same choice right now.” The defendant did not accept the suggestion that a continuance be taken, but elected to insist on his right to a speedy trial and to stand upon the exception taken to the admission of the evidence. We think the question is to be decided without reference to the statute (R. L. 1915, Sec. 3821) relating to the admissibility of depositions “taken in the preliminary or other investigation of any charge” etc., which, in our opinion, does not apply to this case. The constitutional right of the accused in a criminal case to be confronted with the witnesses against him is in the nature of a privilege which he may waive. Diaz v. United States, 223 U. S. 442, 450; Republic v. Yamane, 12 Haw. 189, 221. And where it has not been waived the requirement is satisfied when the opportunity has once been accorded and the witness has since become unavailable. “The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used — 424 — against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. * * * The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination.” Mattox v. United States, 156 U. S. 237, 242, 244. Though the principle is perfectly well established there is considerable conflict in the decided cases as to its application under various circumstances. The matter of its application in a case like this is an open question in this jurisdiction, and we are at liberty, within the principles of the common law as ascertained from the English and American decisions, to adopt the view which according to reason and authority would better promote justice. It has been held that former testimony of a witness is admissible on a second trial of the case only where the witness has died. But the overwhelming weight of authority is against that narrow view. The principle of the common law under which the secondary evidence is admitted is based upon the unavailability of the witness at the time of the trial and the necessity of the case. 2 Wigmore, Ev., Sec. 1402. The immediate point in the case at bar is whether the former testimony of an absent witness is admissible where it appears that the witness is only temporarily absent and will probably return to the jurisdiction. It has been held in a number of cases that the evidence is not admissible unless it be shown that the witness is absent permanently or for an indefinite length of time. The text-writers generally state the rule broadly that absence of a witness from the jurisdiction is a — 425 — ground for the admission of his former testimony. 1 Starkie’s Evidence, 310; 1 Greenleaf Ev., Sec. 163; 2 Wigmore, Ev., Sec. 1402; 12 Cyc. 544; 8 R. C. L. 88; 10 R. C. L. 966. “In fact, every text writer of any note, or that has been recognized by the courts of last resort, so far as we have been able to ascertain, adheres to that line of decisions which holds that the testimony of a deceased witness, or a witness beyond the jurisdiction of the court, may be reproduced where the accused has once been confronted by the witness.” Robertson v. State, 63 Tex. Cr. 216, 224. “At common law, the testimony of a witness given upon a former trial of a cause between the same parties was admissible for or against either party, upon showing that he was dead or without the jurisdiction of the court. Such was the undoubted rule of evidence at common law, and before the adoption of the codes it was sanctioned and employed in this state,” People v. Bird, 132 Cal. 261, 263. In the 16 th edition of Greenleaf which was edited by Professor Wigmore a new section (Sec. 163g) was inserted wherein it is stated that “mere absence, however, may not be sufficient, and it is usually said that a residence or an absence for a prolonged or uncertain time is necessary.” But the professor in his later work says, “The absence, it is sometimes said, must be by way of residence, not merely a temporary sojourn, because otherwise the trial could be postponed until his return. This, however, seems too strict a rule; by his absence he is at the time actually unavailable, no matter when he is to return; and, if the witness is not of such importance as to require a postponement until his return, still more if the opponent does not desire or consent to a postponement, there is no reason for distinguishing between temporary and permanent absence.” 2 Wigmore, Ev., Sec. 1404. The force of the eminent author’s statement is evident, and its application to the circumstances of the case at bar particularly pointed. See also the case of People — 426 — v. Droste, 160 Mich. 66, where the former testimony of a witness who was ill was held properly admitted, and the court pointed out that the defendant did not ask for a continuance and did not assent to the suggestion of the court that the witness be examined at her home. Indeed the fact that the unavailability of a witness is of a temporary nature would seem to have more to do with the matter of postponing the trial of the case than with the admissibility of the evidence in the event that the trial has been proceeded with. And so in a great many cases the former testimony of an absent witness has been admitted without any showing that the absence was permanent or for an indefinite time. See People v. Devine, 46 Cal. 45; State v. Walton, 53 Ore. 557, 563; Ter. v. Evans, 2 Idaho 627; Warren v. State, 6 Okl. Cr. 1, 11; Poe v. State, 129 S. W. (Ark.) 292; Meldrum v. State, 146 Pac. (Wyo.) 596; State v. Moeller, 24 N. D. 165; State v. Heffernan, 24 S. D. 1. “If the testimony of a deceased witness given at a former trial of the case against the accused is admissible against him at a second trial of the same case, for the reasons above noticed we can see no reason why the testimony of a witness given at a former trial is not admissible against the accused at a second trial when such witness is beyond the jurisdiction of the court, because in that instance it is impossible for the prosecution to produce such witness in court by process.” Henwood v. People, 57 Colo. 544, 557. “Logically there seems no middle ground.' Unless the requirement of the constitution is complied with, the death of a witness should not permit the use of his testimony. If it is complied with, the evidence should be admited, unless open to some objection other than the constitutional one. Accordingly, as already stated, in a large number of cases it is held that the absence of the witness from the jurisdiction of the court, and the consequent impossibility of compelling his attendance, justifies the use of his former testimony. While — 427 — there are also many decisions to the contrary, the recent tendency seems to favor the rule stated.” State v. Nelson, 68 Kan. 566, 570. “It is obvious that this reasoning is quite as forceful and as applicable in a case where the witness is out of the state, and therefore, beyond the reach of a subpoena. The state is quite as helpless in procuring his attendance as though he were dead or beyond the sea, and the defendant has had precisely the same advantage in the way of confrontation.” State v. Brown, 152 Ia. 427, 435. And in those states where the former testimony of an absent witness is admitted under statutory provisions the courts, in sustaining the validity of the legislation, proceed upon the theory that the constitutional provision as to confrontation is declaratory and that the evidence was admissible at common law. See State v. King, 24 Utah 482; State v. Meyers, 59 Ore. 537; People v. Elliott, 172 N. Y. 146. Furthermore it is quite generally held that the evidence is admissible where a witness cannot be found after diligent search without any further showing that he has quit the jurisdiction, or that he has left the state permanently. See Putnal v. State, 47 So. (Fla.) 864; Pope v. State, 63 So. (Ala.) 71; 1 Greenleaf Ev., Sec. 163. In the analogous case of the absence of a witness on account of illness there is a conflict of authority on the point whether it must be shown that the illness is of a permanent character. In the well considered case of People v. Droste, supra, the court said, “And upon principle, we are unable to appreciate any good reason why the people or respondent should have the benefit of such evidence in cases where the witness is dead or permanently ill, and be denied that benefit when the witness is only temporarily ill. In all three cases the important fact is identical — the witness cannot be produced to testify before the jury.” 160 Mich. 76.' In 1 Greenleaf Ev. (16th ed.) Sec. 163g, it is said the application of the rule in cases where the witness is ill or — 428 — cannot be found, should be, and usually is, left to the discretion of the trial court. And see Thornton v. Britton, 144 Pa. St. 126, 131; Harwell v. State, 68 So. (Ala.) 500; King v. McCarthy, 54 Minn. 190, 195; Putnal v. State, supra. The reason of the thing applies also in a case where, as here, the witness is temporarily absent from the jurisdiction. Whether or not a temporary absence will furnish sufficient ground for the admission of the former testimony may well be made to depend upon the circumstances of the case. If the prosecution were insisting upon a trial in the absence of the former witness apparently on the theory that it would prefer to have the testimony read to the jury rather than have the witness present, and the defendant was desirous of a continuance till the return of the witness upon the theory perhaps that it would be an advantage to have the jury see and hear witnesses, or, in order that the witness might be more thoroughly cross-examined than he had been at the former trial, the secondary evidence might well be excluded. On the other hand, if the defendant has successfully insisted on an immediate trial and has opposed a reasonable continuance pending the return of the witness, the case is for all practical purposes in the position it would have been in if the witness were permanently out of the reach of the court, or dead. In the case at bar the defendant objected to a continuance till the witness returned, when asked for by the prosecution, and twice. refused to accede to the suggestion of the court that the trial should be postponed. In admitting the evidence the trial court exercised its discretion wisely. In now endeavoring to obtain a retrial the defendant is, in effect, asking for what he refused in the court below, namely, a trial with the witness present. There is little in his position to recommend it. In the case of Motes v. United States, 178 U. S. 458, 474, where a witness for the government who had been in custody was allowed to escape, though it was not shown that — 429 — he had gone beyond the jurisdiction of the court, the admission of his former testimony was held to be error. The court held that former testimony in a criminal case should not be admitted “when it does not appear that the witness was absent by the suggestion, connivance or procurement of the accused, but does appear that his absence was due to the negligence of the prosecution.” In the case at bar we think that the prosecution was not negligent. True, it was known that the witness intended to leave the Territory. But he was an enlisted man in the forces of the United States stationed in this Territory who, because of the illness of his wife, was going to the mainland on a limited furlough, and was under the obligation of the service to return upon its expiration. Under the circumstances we think the prosecution was not obliged to detain the man by subpoena or under the statute relating to the detention of witnesses in criminal cases. If the case could not be postponed until the return of the witness justice required that the testimony given by the witness at the former trial should be admitted. A. M. Cristy, First Deputy City and County Attorney, for the Territory. The evidence in the case was conflicting, but the jury, of course, were the judges of the credibility of the witnesses and the weight of their testimony. There was ample evidence to sustain the verdict. The exceptions are overruled.