Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Creek county of the crime of grand larceny, by the jury, who returned the following verdict: *Page 100
"We, the jury impaneled and sworn in the above entitled cause, do upon our oaths, find the defendant guilty of grand larceny, and fix his punishment at eighteen months in the penitentiary, and we recommend that he be paroled to any person or institution who will take him in charge and provide whatever operation or medical attention, if any, be necessary."
Defendant assigns and argues numerous errors, but for the purpose of this opinion it will only be necessary to consider the second assignment, which is:
"The court erred in permitting the transcript of testimony of Ellis Abraham and Mrs. Ellis Abraham, taken at the preliminary hearing, to be read to the jury, and to be received in evidence at the trial of the defendant."
It appears from the record that the preliminary complaint was filed against the defendant on the 17th day of April, 1929, and a warrant duly issued for the arrest of the defendant; that on the 19th day of April, 1929, a preliminary hearing was had before the magistrate who issued the warrant. It further appears from the record that, when defendant was arraigned, the following proceedings were had:
"Mr. Cameron: Jack, are you ready for preliminary hearing? Jack Combs: Yes, sir. The Court: Jack, have you an attorney? Jack Combs: No. The Court: Are you going to get any? Jack Combs: Well, they wouldn't let me call up at Sapulpa. Mr. Cameron: If you want one we will give you time now to employ one. Jack Combs: I guess I don't want one."
Thereupon the state introduced its evidence, and at the conclusion of the testimony of each witness the following proceedings were had:
"The Court: Jack, do you want to ask the witness any questions? Jack Combs: No." *Page 101
Thereupon, at the close of the state's evidence, the following proceedings were had:
"The Court: Jack, do you want to take the witness stand? Jack Combs: Well, I guess so. The Court: Just tell what you know about this business."
Thereupon the defendant gave a brief detail of how a man named Frank Schrivener asked him to get him a radio and how he went and got this one and was to have $20 for it. And thereupon the county attorney cross-examined the defendant and made him go into minute detail and tell all of the transaction.
At the time of the trial, the state filed an affidavit showing that the witnesses Ellis Abraham and Mrs. Ellis Abraham, who had testified at the preliminary examination, were out of the state and their presence could not be procured in the trial of the case, and asked the court for leave to read the transcript of the evidence of these witnesses to the jury, to which defendant objected for the reason that defendant was not represented by counsel and did not conduct a cross-examination of the witnesses, and that the admission of this testimony would be to deny him his constitutional right to be confronted by the witnesses and to have them cross-examined by counsel competent to conduct such examination.
Article 2, § 20, Constitution of Oklahoma, provides:
"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted *Page 102 with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses."
Section 2349, C. O. S. 1921, provides:
"In a criminal action the defendant is entitled:
"First. To a speedy and public trial.
"Second. To be allowed counsel, as in civil actions, or to appear and defend in person and with counsel; and
"Third. To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the court."
The general rule is that, when a witness has testified at one trial and defendant has had an opportunity to cross-examine him, and upon a subsequent trial said witness is dead or absent from the state, his testimony taken at the first trial may be used by the state. 16 Corpus Juris, 839.
For a full discussion of this question, see Williams v. State, 42 Okla. Cr. 319, 276 P. 515.
The general, if not the universal, holding of the courts is that the essential purpose of the constitutional provision is to secure to the accused the right to cross-examine, and, if he has once enjoyed that right, no constitutional provision is violated by admission of the evidence of such witness who is dead or absent from the state at the subsequent trial.
In Blagg v. State, 36 Okla. Cr. 337, 254 P. 506, this court said: *Page 103
"The accused may waive his constitutional right to meet the witnesses face to face."
This general rule of course presupposes sufficient mental capacity in the defendant to understand the import of the proceedings and to comprehend the necessity of counsel to protect him in his constitutional and statutory rights.
In the case at bar the evidence is that the defendant was shot in the nose when he was about eleven years of age and some hard substance was lodged in his head, and that since that time he had been at times irrational and mentally incompetent and possessed of a mania for taking the property of other people apparently without any definite purpose or idea of ownership or responsibility. The verdict of the jury practically amounts to a finding of criminal insanity.
The only evidence offered by the state to prove the corpus delicti was that of the absent witnesses, the transcript of whose testimony was read to the jury over the objection of defendant, and without which evidence the defendant could not have been convicted. It cannot be said in cases of this kind that the same rule applies, but rather that defendant's lack of mental capacity and the fact that he was not represented by counsel would render such evidence inadmissible.
If the defendant had been represented by counsel and had an opportunity to cross-examine the witness and failed to do so, he could not complain, and the evidence would have been admissible. But the facts in the case at bar are far different to those covered by the general rule, in that defendant was not represented by counsel and in that the whole record, including the verdict of the jury, indicates that he was of unsound mind and unable to *Page 104 cross-examine the witnesses or to waive his right to counsel. It was reversible error, therefore, for the court to admit this evidence over defendant's timely objections.
For the reasons stated, the cause is reversed.
DAVENPORT, P. J., concurs.