specially concurring, with whom ROSE, J., joins.
Rule 17(a), W.R.Cr.P. permits the taking of a deposition if it appears that the prospective witness may be unable to attend a trial or hearing. Rule 17(e) provides that at the trial or hearing the deposition “may be used if it appears: * * * that the witness is unable to attend or testify because of sickness or infirmities.” In other words, permission to take the deposition may be granted if there are only doubts as to the witness’s availability at the trial; permission to use the deposition as evidence in the case may be granted only if it factually appears that the witness is unable to attend. To me this represents a very important distinction.
The State in its motion requesting permission to take Pam Terwey’s deposition alleged “that said witness is an eyewitness to the alleged felony, that she has recently sustained a fractured skull and other injuries, that her doctor has advised that she not be brought to court for at least six weeks . . This allegation is sufficient to show the possible need for deposition as required by Rule 17(a). However, the record does not contain sufficient evidence to support the trial judge’s finding that Pam Terwey was too ill to testify at defendant’s criminal trial or that it would not have been practical to postpone the trial until the witness recovered. While I agree with the majority that the trial judge did not abuse his discretion in granting the motion to take Pam Terwey’s deposition in accordance with Rule 17(a), I cannot agree with their conclusion that there was suffi*839cient evidence to support the trial judge’s decision to admit Pam Terwey’s deposition into evidence. However, I find that admission of the deposition amounts to harmless error because Pam Terwey testified that she did not see Martinez take the police car.
In Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) the United States Supreme Court held that the confrontation clause is applicable to states through the Fourteenth Amendment. The Sixth Amendment to the United States Constitution and Art. 1, § 10 of the Wyoming Constitution provide in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy [have (Wyoming Constitution)] the right * * * to be confronted with the witnesses against him.” And as the majority have correctly pointed out, this provision was adopted so that a person accused of a crime cannot be convicted merely by the use of depositions or ex parte affidavits. Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). The words “to be confronted with the witnesses” mean more than the right of cross-examination. As pointed out by the United States Supreme Court, “[t]he right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968).
There is a substantial difference in the effect of the same words spoken in open court before the eyes of the judge and jury, than when read from a deposition. In the first instance the trier of fact may give credit to the testimony and in the latter the testimony read from the cold words of the transcript may be given no credit at all. It is impossible to transfer to paper the demeanor of a witness on the stand. There are many things other than the literal meaning of the words that are spoken that add to or detract from the witness’s testimony.
“Taken in the aggregate, they constitute a vast moral power in eliciting the truth, all of which is lost when the examination is had out of court and the mere words of the witness are reproduced in the form of a deposition.” State v. McO’Blenis, 24 Mo. 402, 421 (1857).
Because of the importance of the ability to scrutinize a witness on the stand, we have often held that we presume that the findings of fact made by a judge or jury are correct because of their opportunity to observe the witnesses. As we observed in Madrid v. Norton, Wyo., 596 P.2d 1108, 1117 (1979):
“. . . the trial judge was present and observed at first hand the demeanor and expressions of the witnesses. We must not forget that when we examine the cold words of the transcript of testimony, we do not have the benefit of how the trial judge sees and hears the witness — the pitch of the voice, facial changes, the movement in the witness— all of which may tell a separate story, to be given credence.”
Just as we are reluctant to rely upon the literal meaning of the words in a transcript on appeal, a jury is likewise handicapped when it is presented with a deposition rather than the witness himself.
While I recognize the importance of having a witness personally testify at a criminal trial, I also realize that this is not always possible. Since the Sixth Amendment was ratified in 1791, these rights, relevant to this case, have been eroded away to some extent by necessity. In 1895 the United States Supreme Court construed the confrontation clause in such a manner as to allow the admission of transcribed testimony of two witnesses given at a prior trial where the witnesses were deceased at the time of the second trial. While recognizing that the admission of this testimony conflicted with the confrontation clause, the Court stated that
“. . . general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case.” Mattox, supra, 156 U.S. at 243, 15 S.Ct. at 340.
*840In Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972) the Court held that a defendant’s right of confrontation was not violated when the trial court admitted the transcript of the testimony given by the State’s principal witness at the first trial. The testimony was admitted after the witness’s son testified that the witness had become a resident of Sweden and was unavailable to testify at the second trial. The defendant was charged with and convicted of murder.
Our own court has held that a defendant’s Sixth Amendment right of confrontation is not violated by admitting the testimony of a witness given during a previous trial, where there is a sufficient showing that the witness is either deceased or unavailable at the time of the second trial. In Meldrum v. State, 23 Wyo. 12, 146 P. 596, 600 (1915) the State, at defendant’s second trial, introduced the transcript of the testimony given by their witnesses at defendant’s first trial. This court held that the trial court was correct in allowing the transcript into evidence because the State had first laid the proper foundation. The State demonstrated that one of the witnesses was deceased and that the other two could not be found. The prosecution demonstrated that it had made a diligent search to locate the two absent witnesses, but was unable to find them. This court stated (146 P. at 600):
“* * * As a foundation for the admission of the evidence of the two other witnesses, the affidavit of the prosecuting attorney was filed, setting forth that in ample time he had procured a subpoena to issue and placed it in the hands of the proper officer for service, who had returned it with the officer’s return indorsed thereon ‘Not found’; that these witnesses had lived at Baggs, the place of the homicide; and that deponent had made diligent search and inquiry to locate and discover their whereabouts, and that he had been unable to do so, and to the best of his information they were somewhere in the state of California, and that their absence from the state and the trial was without his knowledge, consent, or connivance. Upon this ex parte affidavit the court held the foundation sufficiently laid for the admission of the evidence given by the absent witnesses at the former trial.”
Finding that “[t]he evidence fairly supports the finding of the court as to the laying of the foundation, and, that being so,” this court affirmed the trial court’s ruling. Meldrum, supra, 146 P. at 600.
This court has also held that the introduction of a transcript of a witness’s testimony given at a preliminary hearing is proper where the witness is absent at the time of trial. Ivey v. State, 24 Wyo. 1, 154 P. 589 (1916).
In Barber, supra, 390 U.S. at 725-726, 88 S.Ct. at 1322, the United States Supreme Court stated that
“. . . [w]hile there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.”
The Court reversed defendant’s conviction stemming from a charge of armed robbery finding that the trial court erred in allowing the State to introduce the preliminary hearing transcript of testimony given by a witness who was jointly charged with the defendant. The State failed to show that the witness was unavailable, and therefore admission of the preliminary-hearing testimony deprived defendant of his Sixth Amendment right to confrontation. At the time of the trial the witness was incarcerated in a federal prison, and the State made no effort to have the witness present at trial.
This court and the United States Supreme Court have approved the use of prior testimony given by a witness at a preliminary hearing of former trial if it is first determined that the witness is either deceased or unavailable. However, in the case at bar we are discussing the use of a deposition. No testimony was given before *841a judge and jury; therefore the testimony may not be as reliable as that given before the strict scrutiny of the judge and jury. While I realize that there is a substantial difference between the two and that neither this court nor the United States Supreme Court has ever discussed the question, I have no objections to the admission of a deposition if two tests are met. First, the defendant must have had an opportunity to cross-examine the witness, and second it must be shown that the witness is actually unavailable. Barber, supra, 390 U.S. at 722, 88 S.Ct. at 1320; United States v. Edwards, 5 Cir., 469 F.2d 1362, 1369 (1972). Furthermore, the burden of showing that the witness is unavailable falls upon the party offering the prior testimony. United States v. Amaya, 5 Cir., 533 F.2d 188, 191 (1976), cert. denied 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551. Defendant contends that the second prong of the test has not been met and I agree.
The courts that have addressed the question of whether a witness is unavailable to testify at trial because of an illness have generally agreed that
“. . . [ajlthough the duration of an illness is a proper element of unavailability, the establishment of permanence as to the particular illness is not an absolute requirement. The duration of the illness need only be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed.” Amaya, supra, 533 F.2d at 191.
And if “illness is relied upon, it must be satisfactorily shown that the illness is a serious one.” People v. Del Mastro, 72 Misc.2d 809, 339 N.Y.S.2d 389, 393 (1973). However, some courts have required a showing that the witness is permanently ill before he is excused from testifying at trial. Sheehan v. State, 65 Wis.2d 757, 223 N.W.2d 600, 604 (1974).
In Del Mastro, supra, 339 N.Y.S.2d at 393 the court held that a showing that a witness on a previous court appearance suffered an acute anxiety reaction known as hyperventilation syndrome was insufficient to establish that the witness was unavailable to testify at defendant’s trial because of an illness. As the court stated,
. every defendant has the constitutional right to have witnesses against him produced in Court and cross-examined in the presence and under the scrutiny of the Jury. The cold record of former testimony may only be substituted when excusing factors are present.”
In the case at bar the motion for the taking of Pam Terwey’s deposition was filed and granted July 10, 1979. The trial judge ordered that the deposition was to be taken on July 13, 1979 at Pam Terwey’s home. The trial judge’s order v/as complied with to the extent that the deposition was taken on July 13, 1979, but interestingly enough the deposition was not taken at the witness’s home, but rather at the Sweetwa-ter County courthouse.
In addition to giving her deposition in the very courthouse where defendant’s trial was held four days later, the witness did not testify that her doctor had advised her not to testify because it would be detrimental to her health. Pam did state that she had recently been involved in an accident and that she had suffered from a fractured skull and a blood clot. However, as the majority point out, “the witness testified that the only advice given her by her doctor was ‘not to run around, * * * not to walk around, stay at home.’ ” 611 P.2d at 833. And when Pam was questioned on cross-examination about her ability to testify at Martinez’s trial, she stated that even though her head injury was not causing her any problems at the deposition she did not feel she would be able to testify at the trial. When asked why she could not testify at trial she merely replied, “I don’t know.”
Based upon this testimony the majority have concluded that the trial judge did not abuse his discretion in admitting Pam Ter-wey’s deposition into evidence. I find, however, that the record is void of any evidence indicating that her doctor advised the witness not to testify at defendant’s trial or that in his medical opinion it would be improper for her so to testify. The State *842has therefore failed to meet its burden and the trial judge erred when he admitted Pam Terwey’s deposition into evidence.
Pam Terwey was a material witness and the importance of her testimony cannot be questioned. As the majority point out, the jury was informed through both indirect and direct testimony that Pam Terwey told the police she had seen Martinez take the police car. And it was upon this information that defendant was apprehended and charged with the crime. However, in her deposition that was eventually introduced at trial, Pam stated during direct examination that “I just seen Sam come out and that’s all.” She also stated, “I didn’t see him [Martinez] take the car. . . . ” During cross-examination she testified that while she had originally told the police that she saw Martinez take the police car she was not telling the police the truth, and that she had not actually seen Martinez take the police car. Absent a showing that Pam Terwey was unavailable to testify, I find defendant’s constitutional right of confrontation was violated when the witness’s deposition was introduced into evidence. But even though her deposition was introduced without a proper showing of unavailability, her testimony was not adverse to defendant’s interest and, therefore, I cannot find defendant was actually prejudiced, and concur in the affirmance of the conviction. I would hate to have our opinion today be presented in some future case before this court as authority denying the right of confrontation or concerning the proper way to establish the unavailability of a material witness.