dissenting:
I.
In this case, the trial court admitted into evidence a transcript of the testimony given by the key prosecution witness at appellant’s first trial. The transcript was admitted because the witness was “stranded” while in route from Michigan to Oklahoma to testify. The witness was stranded because of a breakdown in travel arrangements made by the State. This situation does not satisfy the requirements for an unavailable witness within the meaning of Title 12 O.S. 1981, § 2804(A)(5). It also fails to satisfy the confrontational requirements of the Sixth Amendment. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); and Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).
Section 2804(A)(5) requires the State show that it has been unable to procure the witness by process or other reasonable means. Here, the State did not subpoena or bond the witness and was negligent in arranging for his appearance. His whereabouts were fully known. In these circumstances, the State failed to exercise due diligence in securing his attendance. Cf. Newton v. State, 403 P.2d 913 (Okl.Cr. 1965).
II.
Secondly, in the unusual circumstances of this case, where the State’s key witness was stranded while in route to testify and could have been made available without unreasonable delay, it was an abuse of discretion for the trial court to deny a continuance which was requested by both the appellant and the State.
III.
Finally, the trial court also improperly denied the appellant a competency examination. The trial court held that there was no doubt as to the appellant’s competency despite the fact that:. (1) the appellant had been hospitalized for mental problems several times since the age of twelve and had been released from Central State Hospital in Norman only two months before the occurrance of the crime; (2) the appellant testified that she was unable to assist her attorney or understand the proceedings against her; and, (3) appellant’s attorney, based on experience in 250 mental health commitments, stated that he believed she was suffering from mental illness and was unable to assist him in her defense. The trial court’s determination that there was no doubt as to the appellant’s competency was clearly against the weight of the evidence. Cox v. State, 644 P.2d 1077 (Okl.Cr. 1982). I would reverse and remand for new trial.