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ed. We cannot act in the double capacity of, fronted by the witnesses against him, in the counsel for either side and as a court. presence of the court. This is the only ob

[2] In examining the record, we find that jection which counsel for appellant presented the objection was made in the lower court to in their brief to the testimony of George Sulthe testimony of these witnesses upon the livan and Ida Sullivan given upon the preground that appellant had not been served liminary trial of appellant, and therefore it with their names and post office addresses is the only objection which will be considtwo days before the case was called to trial. ered by this court. As this is a question that is liable to arise We have no direct statute in this state in the trial of any homicide case, we will with reference to the introduction of the teswaive the failure of appellant to present this timony of a witness given upon a former matter in the brief, and will pass upon it as trial of the case, when such witness has since though it were properly presented in the died or left the state, or for any reason is brief. The latter part of section 20, art. 2, beyond the jurisdiction of the court, and of the Constitution, is as follows: "At least therefore cannot be placed upon the witness two days before the case is called for trial stand. Section 6494 of Snyder's Compiled he [defendant) shall be furnished with a list Laws of Oklahoma of 1909 is as follows: of witnesses who will be called in chief to "The procedure, practice and pleadings in the prove the allegations of the indictment or in- district courts of this state, in criminal acformation, together with their post office ad- tions or in matters of criminal nature, not dresses.” It is seen upon its very face that specifically provided for in this Code, shall this provision of the Constitution only ap- be in accordance with the procedure, pracplies to witnesses who are called in chief to tice and pleadings of the common law, and prove the allegations of the indictment or assimilated as near as may be with the proinformation. This does not apply to either cedure, practice and pleadings of the United of the witnesses above named. Neither of States or federal side of said court." The them testified to a single substantive fact in common law in force in the United States can the most remote degree tending to prove the only be found in text-books and in the deciallegations contained in the indictment. In sions of various courts of this country. We fact, so far as this record goes, neither of must therefore look to these sources to see said witnesses knew anything about the mer- as to whether or not the objections offered its of this cause. Their testimony was sim- by counsel for appellant in this case are well ply introductory for the purpose of showing founded. that George Sullivan and Ida Sullivan could There is no higher or safer authority on · not with due diligence be found in McCur- the subject of evidence than Mr. Wigmore. tain county, and, when last heard from, they in our judgment he has made the clearest were in the state of Arkansas, and therefore and most satisfactory explanation of the reabeyond the jurisdiction of the court, and sons which support the constitutional and could not be reached by its process, and the statutory provisions upon the subject of confurther fact that there was a preliminary frontation that we have found in the books. trial of this defendant before a justice of the In section 1395, 2 Wigmore on Evidence, he peace of McCurtain county wherein he was explains this matter as follows: “It is gencharged with the murder of the deceased, erally agreed that the process of confrontaand that appellant was present at said pre- tion has two purposes, a main and essential liminary trial and was represented by coun- one, and a secondary and subordinate one. sel, and was offered full opportunity to cross- (1) The main and essential purpose of conexamine, and did cross-examine, said witness- frontation is to secure the opportunity of es. Their testimony was simply preliminary cross-examination. The opponent demands to the introduction of the evidence of the confrontation, not for the idle purpose of witnesses so examined at said preliminary gazing upon the witness, or of being gazed examination, and therefore said witnesses upon by him, but for the purpose of crossdid not come within the case described in examination, which cannot be had except by the Constitution.

the direct and personal putting of questions In their brief, counsel for appellant con- and obtaining of immediate answers. That tends that the testimony of George Sullivan this is the true and essential significance of and Ida Sullivan, taken before J. J. McLain, confrontation is demonstrated by the lanjustice of the peace, at the preliminary ex- guage of counsel and judges from the beamination of plaintiff in error, and which ginning of the hearsay rule to the present was read to the jury, was inadmissible be day. * * Thus the main idea in the cause it was in violation of section 20 of process of confrontation is that the opporarticle 2 of the Constitution, which provides tunity of cross-examination. The former is that in all criminal prosecutions the accused merely the dramatic feature, the preliminary shall be confronted by the witnesses against measure, appurtenant to the latter. (2) There him, and was also in contravention to section is, however, a secondary advantage to be ob6489 of Snyder's Compiled Laws of Okla- tained by the personal appearance of the withoma of 1909, which provides that in a crim- ness. The judge and the jury are enabled to inal case the defendant is entitled to be con obtain the elusive and incommunicable evi

dence of a witness' deportment while testi-,lute in form; 1. e., they do not say that the fying, and a certain subjective moral effects accused shall be confronted 'except when the is produced upon the witness. * This witness is deceased, ill, out of the jurisdicsecondary advantage, however, does not arise tion, or otherwise unavailable, but imperafrom the confrontation of the opponent and tively prescribe that he 'shall be confronted.' the witness. It is not the consequence of Upon this feature the argument has many those two being brought face to face. It is times been found that, although the accused the witness' presence before the tribunal has had the fullest benefit of cross-examining that secures this secondary advantage, which a witness now deceased or otherwise unavailmight equally be obtained whether the oppo-able, nevertheless, the witness' presence benent was or was not allowed to cross-exam-fore the tribunal being constitutionally indisine. In other words, this secondary advan- pensable, his decease or the like is no excuse tage is a result accidentally associated with for dispensing with his presence. That this the process of confrontation, whose original argument is unfounded cannot be doubted; and fundamental object is the opponents and the answer to it may be put in several cross-examination.

The

question, then, forms: (1) There never was at common law whether there is a right to be confronted any recognized right to an indispensable with opposing witnesses, is essentially a ques- thing called confrontation as distinguished tion whether there is a right of cross-exami- from cross-examination. There was a right nation. If there has been a cross-examina- to cross-examination as indispensable, and tion, there has been a confrontation. The that right was involved in and secured by satisfaction of the right of cross-examination confrontation. It was the same right under (under the rules examined ante, $81371- different names. This much is clear enough 1393) disposes of any objection based on the from the history of the hearsay rule (ante, s so-called right of confrontation. Neverthe- 1364), and from the continuous understandless, the secondary advantage, incidentally | ing and exposition of the idea of confrontaobtained for the tribunal by the witness' tion (ante, $ 1395). It follows that, if the ac presence before it—the demeanor evidence-cused has had the benefit of cross-examinais an advantage to be insisted upon wherev- tion, he has had the very privilege secured er it can be had. No one had doubted that it to him by the Constitution.” He cites a is highly desirable, if only it is available. great number of American and English casBut it is merely desirable. Where it cannot es as sustaining the doctrine announced. We be obtained, it need not be required. It is have often examined the citations made by no essential part of the notion of confronta- Mr. Wigmore, and, having invariably found tion. It stands on no better footing than them to be accurate, we are disposed to acother evidence to which special value is at-cept his statements and citations with refertached; and, just as the original of a docu-ence to these authorities as being correct. ment (ante, f 1192) or a preferred witness In section 1398 he says: “In dealing with (ante, $ 1308) may be dispensed with in case depositions and former testimony, our courts of unavailability, so demeanor evidence may have almost unanimously received them in be dispensed with in a similar necessity. Ac- criminal prosecutions, as not being obnoxious cordingly, supposing that the indispensable to the constitutional provision.” In section requirement of cross-examination has been 1404 he says: “Where the witness is out of satisfied, the only remaining inquiry is the jurisdiction, it is impossible to compel whether the demeanor evidence, to be ob- his attendance, because the process of the tained by the witness' production before the trial court is of no force without the juristribunal, is available. This inquiry—the con- diction, and the party desiring his testimony ditions of unavailability of demeanor evi- is therefore helpless.” dence by reason of death, illness, and the In Underhill on Criminal Evidence (20 like-remains now to be made. But first the Ed.) 8 265, we find the following: "If the effect must be considered of the constitutional accused has once enjoyed his right to consanction in the United States of the principle front witnesses, his constitutional right to of confrontation; for this has often errone- meet the witnesses against him face to face ously affected the judicial attitude towards is not violated by the admission of the tesdemeanor evidence. In the United States timony of such a witness who is absent at a most of the Constitutions have given a per- subsequent trial.” In the case of Sullivan manent sanction to the principle of confron- v. State, 6 Tex. App. 337–338, 32 Am. Rep. tation by provisions requiring that in crim- 580, that court said: “The next important inal cases the accused shall be 'confronted inquiry is, Was it competent for the state with the witnesses against him' or 'brought to prove, under the circumstances disclosed face to face with them. The question thus by the record, what the witness Dean had arises whether these constitutional provi- testified to before the examining court? The sions affect the common-law requirement of Constitution (article 1, § 10, of the Bill of confrontation, otherwise than by putting it Rights) declares that 'in all criminal prosbeyond the possibility of abolition by an ordi-ecutions' the accused 'shall be confronted nary legislative body. The only opening for with the witness against him.' The Code argument lies in the circumstance that these of Criminal Procedure, art. 24, provides that

fronted with the witnesses, except in cer- , ministration of justice, if not wholly defeat tain cases, provided for in this Code, when it. The defendant is not injured in such depositions have been taken.' In treating of case, because he has been brought face to constitutional provisions similar to the one face with the witness, and has cross-examabove set out, and found in all the con- ined him when the testimony was taken. stitutions of the several states and in that In Brown v. Commonwealth, 73 Pa. 321 [13 of the United States, Mr. Cooley lays down Am. Rep. 740], it appeared that on the preas the correct rule, deducible from the au- liminary hearing before the committing magthorities, and which we adopt as correct, istrate, the defendant and his counsel being the following: "The testimony for the people present, witness was examined whose tesin criminal cases can only, as a general rule, timony was taken down by defendant's counbe given by witnesses who are present in sel, and, the witness having died before court. The defendant is entitled to be con- the trial, the notes of his evidence, proved fronted with the witnesses against him; by the counsel under oath, were offered in and if any of them be absent from the com- evidence, objected to and admitted. It was monwealth, so that their attendance can contended that by the Constitution of this not be compelled, or if they be dead, or have state the defendant was entitled to meet the become incapacitated to give evidence, there witness face to face. It was held by this is no mode by which their statements against court in an elaborate opinion by Chief Justhe prisoner can be used for his conviction. tice Read that the notes of the hearing beThe exceptions to this rule are of cases fore the magistrate were properly admitwhich are excluded from its reasons by ted. The question was so elaborately distheir peculiar circumstances; but they are cussed in that case that no further reference far from numerous. If the witness was to it is needed.” sworn before an examining magistrate, or In the case of Lucas v. State, 96 Ala. 51, before a coroner, and the accused had an 11 South. 216, the Supreme Court of Alaopportunity then to examine him, or if there bama said: "At a preliminary examination were a former trial, on which he was sworn, of the defendant Dock Tilley was examined it seems allowable to make use of his dep- as a witness by the state, and his testimony osition, or of the minutes of his examina- was reduced to writing. On the trial, after tion, if the witness has since deceased, or is the indictment, Dock Tilley was absent, and, insane, or sick, and unable to testify, or has against the objections of the defendant, his been summoned, but appears to have been testimony as given on the preliminary exkept away by the opposite party.' Cooley's amination was admitted against him. The Const. Lim. Orig. pp. 363, 364. Agreeably rule in such cases is that if a witness dies, to Mr. Greenleaf, ‘upon the question whether or becomes insane, or has gone beyond the this kind of evidence is admissible in any jurisdiction of the state permanently, or other contingency except the death of the for such an indefinite time that his return is witness, there is some discrepancy among merely contingent or conjectural, the testiAmerican authorities. 1 Greenl. on Ev. $mony of such witness may be proven on a 163, note. The rule in the text appears to subsequent trial. Pruitt v. State (92 Ala. be that, 'when the testimony was given un- 41], 9 South. 406; 1 Greenl. Ev. (14th Ed.) der oath, in a judicial proceeding in which par. 163, and notes; Lowe v. State, 86 Ala. the adverse litigant was a party, and where 52, 5 South. 435; South v. State, 86 Ala. 617, he had the power to cross-examine, and was 6 South. 52; Perry v. State, 87 Ala. 30, 6 legally called upon so to do, the great and South. 425." ordinary test of truth being no longer want In the case of State v. Walton, 53 Or. 562, ing, the testimony so given is admitted, after 99 Pac. 433, the Supreme Court of Oregon the decease of the witness, in any suit be- said: “The Constitution (section 11, art. 1) tween the same parties. It is also received provides that in all criminal prosecutions if the witness, though not dead, is out of the accused shall have the right to meet the jurisdiction, or cannot be found after the witnesses face to face,' and it is condiligent search, or is insane, or sick and un- tended that the admission of the testimony able to testify, or has been summoned, but of the witnesses Johnson and Hogeboom, appears to have been kept away by the ad-given on the former trial of the accused, was verse party. But testimony thus offered is an infringement of this right. The Constiopen to all the objections which might be tution of the United States, and of most taken if the witness were personally pres- states of the Union, contains similar provient.'” In the case of Commonwealth v. sions, and the general, if not the universal, Cleary, on page 39 of 148 Pa., on page 1112 holding of the courts is that their essential of 23 Atl., the Supreme Court of that state purpose is to secure to an accused the right said: “Where, upon a subsequent trial, the of cross-examination, and, if he has once enwitness is dead, or beyond the jurisdiction joyed that right, no constitutional privilege of the court, there seems no good reason is violated by the admission of the testimony why his testimony taken upon the former of such a witness, who is dead or absent trial, and clearly proved, should not be ad- from the state, at a subsequent trial. Un. mitted. To deny this right would in inany derhill, Crim. Ev. $ 255; 2 Wigmore, Ev. instances seriously interfere with the ad-8 1397; State v. Nelson, 68 Kan. 566, 75 Pac.

505; People v. Dowdigan, 67 Mich. 95, 38, upon appeal the Supreme Court of Oklahoma N. W. 920; State v. Byers, 16 Mont. 565, Territory sustained the ruling of the lower 41 Pac. 708; Territory V. Evans, 2 Idaho court and excluded the depositions. In the (Hasb.) 651, 23 Pac. 232, 7 L. R. A. 646; Watkins Case the depositions offered were Marler v. State, 67 Ala. 55, 42 Am. Dec. 95; not taken in the same case between the State v. McO'Blenis, 24 Mo. 402, 69 Am. same parties and the United States was not Dec. 435; State v. King, 24 Utah, 482, 68 represented, and could not have been repPac. 418, 91 Am. St. Rep. 808 (note, 61 Am. resented when said depositions were taken. St. Rep. 886).” This question has been pre- They were therefore properly held to be inviously passed upon by this court in the admissible, and that case has no relation case of Hawkins v. United States, 3 Okl. Cr. whatever to the case before us. 660, 108 Pac. 565. This court there said: [3] Third. The third assignment of error “Under the decisions of the Supreme Court is as follows: "The court erred in refusing of Arkansas, where the defendant has been to admit the testimony offered by the plainconfronted with a witness in a former trial tiff showing the cause of the ill feeling that of the same cause, whether before a coroner existed between him and the deceased.” No or justice of the peace sitting as an examin- effort was made in the brief of appellant ing magistrate, or upon an application for or in the case-made to show what facts he bail, or upon a trial in the circuit court, and desired to prove which were excluded by the where the witness testified under oath, and judge. In the case of Price v. State, 1 Okl. opportunity for cross-examination was af- Cr. 375, 98 Pac. 455, this court said: “De forded the defendant, the testimony given fendant complains of the action of the trial by such witness on such former trial may court in sustaining objections to questions be proved in the final trial as secondary propounded to his witnesses, but the record evidence, if it is first satisfactorily proven does not show, except inferentially, the facts that the witness has since died, become in which defendant expected to prove by the sane, left the state, or that his whereabouts witnesses, if they had been permitted to ancannot with due diligence be ascertained, or swer the questions to which objections were that he is sick and unable to testify." sustained. In the absence of such showing

Applying the principles above enunciated to in the record, this court cannot review the the case at bar, we find that it was proven rulings of the trial court or hold that mato the satisfaction of the trial court that terial error was committed in the rejection the whereabouts of the witnesses George of competent testimony. In order to avoid, Sullivan and Ida Sullivan could not with mistakes, the jury should have been withdue diligence be ascertained, and that, when drawn, and the court should have heard the they were last heard from, they were in the testimony. Then the record should have state of Arkansas. The trial court having shown what the rejected evidence was. This found these facts, and there being evidence court would then have been in a position in the record supporting this finding, we to pass intelligently upon the question. As cannot disturb his decision upon this ques- this record stands, we cannot say that the tion. It was also proven that George Sulli- court committed material error in the rulvan and Ida Sullivan testified on the 10th ing complained of." . Passing upon this very day of July, 1908, before J. J. McLain, a question in the case of White v. State, 4 Okl. justice of the peace for McCurtain county, Cr. 160, 161, 111 Pac. 1017, 1018, this court Okl., in this case when this defendant was said: “When the defendant attempts to having his preliminary trial before said jus- prove threats made against him and obtice, charged with the murder of A. L. Lamb, jections to the questions asked the witness and that this defendant was present at said are sustained, it is the duty of counsel for trial, and

was represented by counsel, and the defendant to incorporate in the record a upon said trial both of the said witnesses statement as to what he expects to prove by were fully cross-examined by counsel for the witness if allowed to testify. This court appellant. Under these conditions, we think could then be in a condition to determine as that the trial court did not err in permitting to whether or not such offered evidence was the testimony given by said witnesses upon material and proper. To reverse a case said examining trial to be read to the jury. i simply because a witness was not permitted Counsel for appellant cite the case of James to answer a question when there is no showWatkins v. United States, 5 Okl. 729, 50 Pac. ing in the record that such answer would 88. An examination of that case shows that it have been favorable to the defendant is to is not in point. Watkins was on trial charg- trifle with the law. We have no means of ed with the offense of perjury. The United knowing what the answers would have been, States was plaintiff and James Watkins was and therefore cannot see whether the defenddefendant. He offered in evidence the dep- ant was deprived of material testimony. Supositions of one John A. Watkins and one pose this cause was reversed because the Ardill R. Johnson, taken in a civil suit trial court refused to permit the witness to wherein John A. Watkins was plaintiff and answer the questions which were asked him. Chas. E. Schofield was the defendant. These and upon a second trial the court finds that depositions were by the trial court excluded, the answers to such questions were not ma

court in reversing the cause would be un- , difficulty, and that he would have shot said just to the state. It is a very easy matter Hardis Lamb if he had not been stopped when objections to questions are sustain- by a bystander. ed for counsel for the defendant to write Defendant himself testified that before the out what answers they expect to obtain from fatal shot was fired that the deceased grabthe witness and hand it to the trial court, bed at the gun or beard of the defendant, and have it incorporated in the record as a and that the deceased caught the defendant part of the case. We could then intelligently by the beard, and that deceased had cursed pass upon the question as to whether or not and abused the defendant before doing this. the defendant was injured by the refusal In the light of this testimony, the jury may of the court to admit this testimony. The have decided that the defendant was laborwriter of this opinion remembers a case ing under such intense excitement and paswhich was reversed on account of the failure sion at the time that he fired the fatal shot of the trial court to allow a witness to an- as to reduce the offense from murder to swer certain questions as to what the demanslaughter. It is true that this may be ceased had said. Upon the second trial the considered as rather a strained construction same questions were propounded to the wit- to place upon the evidence; yet it is a posness, and he replied: 'He didn't say no- sible and legitimate deduction to be drawn thing.' Had this answer been incorporated from the evidence, and the court therefore in the first record, the reversal and delay of did not err in submitting this issue to the a second trial would have been avoided. The jury. But let that be as it may, the defendbetter practice would be to have the jury ant cannot be heard to complain that he has retire and let the court hear what answers been convicted of a less offense than the one the witness would make. This should be in which he actually committed. corporated in the record. Then the matter In the case of State v. Lindsey, 19 Nev. 50, could be intelligently passed upon both in the 5 Pac. 823, 3 Am. St. Rep. 778, 779, 780, the trial court and in this court. Neither counsel Supreme Court of Nevada has expressed our for the state nor for a defendant should be views upon this question: "But suppose the permitted to make oral statements in the jury, in charity for the faults and weakness presence of the jury as to what evidence they of the human race, sympathy for the prisondesire to introduce in reply to questions er, or any other mistaken view of the law or which have been objected to. This is a the facts, lessens the offense to murder in very unfair and dangerous practice. Improp- the second degree, is the prisoner to go free? er impressions may thereby be made upon Does not the case stand precisely upon the the minds of the jurors which cannot be ef- same plane as a verdict of murder 'in the faced.” So far as the brief of counsel for second degree, in any case not enumerated appellant and the record in this case go, in the statute, where there is a willful, dethere is nothing to show that appellant was liberate, and premeditated killing? Is it not deprived of any material or competent testi- as much the duty of the jury in such a case mony by the ruling of the court. The pre- to find the prisoner guilty of murder in the sumption is that all proceedings of the trial first degree as in the cases specially enumercourt were regular; and, if the defendant ated in the statute? Suppose the jury in desires this court to review any rulings of such a case, where the evidence is positive, the trial court, the burden is on him to show clear, plain, and satisfactory beyond a reathat such ruling was erroneous.

sonable doubt, regardless of all the testi[4] Fourth. The fourth assignment of error mony, and in violation of the well-settled is that "the court erred in giving the jury an principles of law, should find the prisoner instruction on manslaughter.” Counsel for guilty of murder in the second degree, would appellant does not complain that the jury the prisoner be entitled to a new trial upon were improperly instructed on the subject the ground that the verdict is against the of manslaughter, but their contention is that evidence? Is it not a fact that juries frehe should have been convicted of murder, quently render just such verdicts, and the or that he should have been acquitted. We result cannot be accounted for upon any the. agree with counsel for the appellant in the ory other than that of a compromise of opinstatement that there is evidence in this rec-ion? Why should such verdicts be allowed ord which would sustain a verdict for mur- to stand? The answer is plain. The reader, but there is also testimony which shows son is that the statute leaves the question of that appellant was laboring under the most degree to be settled by the verdict of the intense excitement and passion at the time jury. A verdict finding the prisoner guilty of the fatal difficulty. The testimony shows of murder without mentioning the degree that, after appellant had shot and killed the would be a nullity. In State v. Rover, 10 deceased, appellant fired a shot at George Sul- Nev. 388, 21 Am. Rep. 745, this court, referlivan, who had taken no part in the diffi- ring to the statute which we have quoted, culty, and who was running away from the said: 'By this statute murder is divided inscene of the homicide, and that appellant to first and second degrees, depending upon then picked up a Winchester and attempted the particular circumstances in which the to shoot Hardis Lamb, a son of the deceased, crime is committed: and whether it be of who had taken no part whatever in the the first or second degree is a fact to be spe

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