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.

*

dence of a witness' deportment while testi- lute in form; 1. e., they do not say that the fying, and a certain subjective moral effect 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 opponent's 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, §§ 1371- different names. This much is clear enough 1393) disposes of any objection based on the from the history of the hearsay rule (ante, § 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 acpresence 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, § 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 like remains now to be made. But first the effect must be considered of the constitutional sanction in the United States of the principle of confrontation; for this has often erroneously affected the judicial attitude towards demeanor evidence. In the United States most of the Constitutions have given a permanent sanction to the principle of confrontation by provisions requiring that in criminal cases the accused shall be 'confronted with the witnesses against him' or 'brought face to face' with them. The question thus arises whether these constitutional provisions affect the common-law requirement of confrontation, otherwise than by putting it beyond the possibility of abolition by an ordinary legislative body. The only opening for argument lies in the circumstance that these

In Underhill on Criminal Evidence (20 Ed.) § 265, we find the following: "If the accused has once enjoyed his right to confront witnesses, his constitutional right to meet the witnesses against him face to face is not violated by the admission of the testimony of such a witness who is absent at a subsequent trial." In the case of Sullivan v. State, 6 Tex. App. 337-338, 32 Am. Rep. 580, that court said: "The next important inquiry is, Was it competent for the state to prove, under the circumstances disclosed by the record, what the witness Dean had testified to before the examining court? The Constitution (article 1, § 10, of the Bill of Rights) declares that 'in all criminal prosecutions' the accused 'shall be confronted with the witness against him.' The Code of Criminal Procedure, art. 24, provides that

it. The defendant is not injured in such case, because he has been brought face to face with the witness, and has cross-examined him when the testimony was taken. In Brown v. Commonwealth, 73 Pa. 321 [13 Am. Rep. 740], it appeared that on the preliminary hearing before the committing magistrate, the defendant and his counsel being present, witness was examined whose testimony was taken down by defendant's counsel, and, the witness having died before the trial, the notes of his evidence, proved by the counsel under oath, were offered in evidence, objected to and admitted. It was contended that by the Constitution of this state the defendant was entitled to meet the witness face to face. It was held by this court in an elaborate opinion by Chief Justice Read that the notes of the hearing before the magistrate were properly admitted. The question was so elaborately discussed in that case that no further reference to it is needed."

fronted with the witnesses, except in cer- ministration of justice, if not wholly defeat tain cases, provided for in this Code, when depositions have been taken.' In treating of constitutional provisions similar to the one above set out, and found in all the constitutions of the several states and in that of the United States, Mr. Cooley lays down as the correct rule, deducible from the authorities, and which we adopt as correct, the following: The testimony for the people in criminal cases can only, as a general rule, be given by witnesses who are present in court. The defendant is entitled to be confronted with the witnesses against him; and if any of them be absent from the commonwealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which their statements against the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circumstances; but they are far from numerous. If the witness was sworn before an examining magistrate, or before a coroner, and the accused had an opportunity then to examine him, or if there were a former trial, on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick, and unable to testify, or has been summoned, but appears to have been kept away by the opposite party.' Cooley's Const. Lim. Orig. pp. 363, 364. Agreeably to Mr. Greenleaf, 'upon the question whether this kind of evidence is admissible in any other contingency except the death of the witness, there is some discrepancy among American authorities.' 1 Greenl. on Ev. § 163, note. The rule in the text appears to be that, 'when the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted, after the decease of the witness, in any suit between the same parties. It is also received if the witness, though not dead, is out of the jurisdiction, or cannot be found after diligent search, or is insane, or sick and unable to testify, or has been summoned, but appears to have been kept away by the adverse party. But testimony thus offered is open to all the objections which might be taken if the witness were personally present." " In the case of Commonwealth v. Cleary, on page 39 of 148 Pa., on page 1112 of 23 Atl., the Supreme Court of that state said: "Where, upon a subsequent trial, the witness is dead, or beyond the jurisdiction of the court, there seems no good reason why his testimony taken upon the former trial, and clearly proved, should not be admitted. To deny this right would in many instances seriously interfere with the ad

In the case of Lucas v. State, 96 Ala. 51, 11 South. 216, the Supreme Court of Alabama said: "At a preliminary examination of the defendant Dock Tilley was examined as a witness by the state, and his testimony was reduced to writing. On the trial, after the indictment, Dock Tilley was absent, and, against the objections of the defendant, his testimony as given on the preliminary examination was admitted against him. The rule in such cases is that if a witness dies, or becomes insane, or has gone beyond the jurisdiction of the state permanently, or for such an indefinite time that his return is merely contingent or conjectural, the testimony of such witness may be proven on a subsequent trial. Pruitt v. State [92 Ala. 41], 9 South. 406; 1 Greenl. Ev. (14th Ed.) par. 163, and notes; Lowe v. State, 86 Ala. 52, 5 South. 435; South v. State, 86 Ala. 617, 6 South. 52; Perry v. State, 87 Ala. 30, 6 South. 425."

In the case of State v. Walton, 53 Or. 562, 99 Pac. 433, the Supreme Court of Oregon said: "The Constitution (section 11, art. 1) provides that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face,' and it is contended that the admission of the testimony of the witnesses Johnson and Hogeboom, given on the former trial of the accused, was an infringement of this right. The Constitution of the United States, and of most states of the Union, contains similar provisions, and the general, if not the universal, holding of the courts is that their essential purpose is to secure to an accused the right of cross-examination, and, if he has once enjoyed that right, no constitutional privilege is violated by the admission of the testimony of such a witness, who is dead or absent from the state, at a subsequent trial. Underhill, Crim. Ev. § 255; 2 Wigmore, Ev. § 1397; State v. Nelson, 68 Kan. 566, 75 Pac.

305; 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: "Under the decisions of the Supreme Court of Arkansas, where the defendant has been confronted with a witness in a former trial of the same cause, whether before a coroner or justice of the peace sitting as an examining magistrate, or upon an application for bail, or upon a trial in the circuit court, and where the witness testified under oath, and opportunity for cross-examination was afforded the defendant, the testimony given by such witness on such former trial may be proved in the final trial as secondary evidence, if it is first satisfactorily proven that the witness has since died, become insane, left the state, or that his whereabouts cannot with due diligence be ascertained, or that he is sick and unable to testify."

[3] Third. The third assignment of error is as follows: "The court erred in refusing to admit the testimony offered by the plaintiff showing the cause of the ill feeling that existed between him and the deceased." No effort was made in the brief of appellant or in the case-made to show what facts he desired to prove which were excluded by the judge. In the case of Price v. State, 1 Okl. Cr. 375, 98 Pac. 455, this court said: "Defendant complains of the action of the trial court in sustaining objections to questions propounded to his witnesses, but the record does not show, except inferentially, the facts which defendant expected to prove by the witnesses, if they had been permitted to answer the questions to which objections were sustained. In the absence of such showing in the record, this court cannot review the rulings of the trial court or hold that material error was committed in the rejection of competent testimony. In order to avoid, mistakes, the jury should have been withdrawn, and the court should have heard the testimony. Then the record should have shown what the rejected evidence was. This court would then have been in a position to pass intelligently upon the question. As this record stands, we cannot say that the court committed material error in the rul ing complained of.". Passing upon this very question in the case of White v. State, 4 Okl. Cr. 160, 161, 111 Pac. 1017, 1018, this court said: "When the defendant attempts to prove threats made against him and objections to the questions asked the witness are sustained, it is the duty of counsel for the defendant to incorporate in the record a statement as to what he expects to prove by the witness if allowed to testify. This court could then be in a condition to determine as to whether or not such offered evidence was material and proper. To reverse a case simply because a witness was not permitted to answer a question when there is no showing in the record that such answer would 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

Applying the principles above enunciated to the case at bar, we find that it was proven to the satisfaction of the trial court that the whereabouts of the witnesses George Sullivan and Ida Sullivan could not with due diligence be ascertained, and that, when they were last heard from, they were in the state of Arkansas. The trial court having found these facts, and there being evidence in the record supporting this finding, we cannot disturb his decision upon this question. It was also proven that George Sullivan and Ida Sullivan testified on the 10th day of July, 1908, before J. J. McLain, a justice of the peace for McCurtain county, Okl., in this case when this defendant was having his preliminary trial before said justice, charged with the murder of A. L. Lamb, and that this defendant was present at said trial, and was represented by counsel, and upon said trial both of the said witnesses were fully cross-examined by counsel for appellant. Under these conditions, we think that the trial court did not err in permitting the testimony given by said witnesses upon said examining trial to be read to the jury. Counsel for appellant cite the case of James Watkins v. United States, 5 Okl. 729, 50 Pac. 88.