dissenting: In my opinion the state established no foundation whatever for the admission of the transcript testimony of Officer Prowse given at the previous trial of the appellant which resulted in a hung jury. The facts presented by the record herein are controlled by State v. Brown, 181 Kan. 375, 312 P. 2d 832; and State v. Tyler, 187 Kan. 58, 353 P. 2d 801.
The motion of the county attorney, supported by an affidavit, filed pursuant to G. S. 1949, 60-2934, was designed to procure either a continuance of the case so that Officer Prowse could be personally present to testify, or to get an admission from the accused that the facts stated in the affidavit could be read in evidence as the deposition of Officer Prowse. This motion was filed and argued by the parties several days before the trial. The motion failed to accomplish either of the purposes specified by the provisions of the statute —upon objection of the accused the trial court refused to grant a continuance, and the accused would not admit that the testimony *665of Officer Prowse given at the previous trial could be read in evidence. Instead, the trial court ruled that the testimony of Officer Prowse given at the previous trial could be read in evidence on the trial of the case upon the trial court’s conclusion that Officer Prowse was beyond the jurisdiction of Kansas.
First, facts recited in the affidavit filed by the county attorney pursuant to the above statute do not lay the necessary foundation to establish that Officer Prowse was beyond the jurisdiction of Kansas or that the state had exercised reasonable diligence to produce him at the trial. The facts recited in such motion filed pursuant to 60-2934, supra, were material to procure a ruling on such motion only. The affidavit filed with that motion does not rise to the dignity of evidence. It was not even presented by the state at the trial of the action. (State v. Bonskowski, 180 Kan. 726, 308 P. 2d 168; and State v. Brown, supra.)
Second, mere argument and colloquy between court and counsel which took place at the hearing on the motion, or in arguing objections at the trial, does not rise to the dignity of evidence which the state is required to produce at the trial to show that reasonable diligence has been exercised to produce the absent witness whose testimony is material. The decision in State v. Brown, supra, turned on this very point. The court there said:
. . Statements of counsel, however, are not evidence any more than are the opening statements of counsel in the presentation of a case before a jury or to the court. The foundation, which the law contemplates, is a foundation in evidence. It is proof that is required. Proof that due diligence has been exercised and that the testimony of the witness is not available. . . .” (p. 394.)
Third, a statement by counsel for the appellant that he placed a telephone call to each office location of Officer Prowse in the city of Wichita and received a response that Officer Prowse was on vacation, does not constitute an admission that Officer Prowse was beyond the jurisdiction of Kansas, nor does it establish that the state exercised reasonable diligence in an attempt to produce Officer Prowse at the trial.
In State v. Nelson, 68 Kan. 566, 75 Pac. 505, the court was preoccupied with the provisions of Section 10 of the Bill of Rights, and the opinion reads as if it was an established fact that the witness in question was beyond the jurisdiction of Kansas and could not be located. In view of the point there considered by the court and *666later decisions, the Nelson case cannot be regarded as controlling on the facts in this case.
It could hardly be argued the point under consideration was not prejudicial to the appellant where the fact is known that a jury hung when Officer Prowse testified in person and was cross examined in its presence, but that a jury found the appellant guilty when Officer Prowse’s testimony at the previous trial was read to it.
Furthermore, the refusal of tihe appellant to consent to a continuance, or to admit the reading of Officer Prowse’s testimony given at the previous trial, is not sufficient to supply the state’s foundation for the admission of such evidence.
It is submitted the lower court should be reversed and a new trial granted.
Robb, J., joins in the foregoing dissenting opinion.