State v. Maynard

HoKE, J.

Defendant Maynard, who alone appeals, objects to the validity of this conviction on account, chiefly, of the admission of the testimony of the stenographer by which the evidence of the accomplice, Barnes, was placed before the jury, and on the ground: (1) that he was not properly confronted with the accusing witnesses; (2) that the evidence of said witness was not completed, attested, or filed as required by the statute in order to a proper reception of such evidence.

In regard to the first position, it is a recognized principle of trials at common law that where, in a judicial proceedings before a court having power to compel the attendance of witnesses, administer oaths, and hear evidence pertinent to the inquiry, a witness has given his evidence and the defendants are present and have the right and have been afforded opportunity to cross-examine the witness, such testimony, when properly attested and verified, may be introduced and used on a second trial of the cause against said defendants, where the witness is since dead, or has become hopelessly or permanently insane, or is wrongfully absent from the trial by the acts and procurement of the defendants. And by the weight of authority when the witness has departed from the jurisdiction of the court and become permanently a nonresident. S. v. Bridgers, 87 N. C., 562; S. v. Thomas, 64 N. C., 75; S. v. Valentine, 29 N. C., 225; Mattox v. U. S., 156 U. S., 237-242-244; Reynolds v. U. S., 98 U. S., 145; People v. Elliott, 172 N. Y., 146; Commonwealth v. Richards, 35 Mass., 434; State v. John Nelson, 68 Kansas, 556; Trial of Lord Morley, 6 Howell State Trials, 770.

These authorities proceed upon the principle fully approved with us that in the cases specified, the right and privilege of a defendant in a criminal case to confront the accuser and his witnesses, as contained in Art. I, sec. 11, of our Constitution, is fully accorded by the opportunity given to meet and cross-examine them at the former trial, and that the position referred to in no way offends against the constitutional guarantee.

As to the second ground of this objection, our legislation as to these preliminary examinations appearing in 0. S., ch. 83, art. 1, sec. 4560, provides that “the evidence given by the several witnesses examined shall be reduced to writing by the magistrate, or under his direction, and shall be signed by the witnesses respectively, etc.,” and in section 4563: “That the answers of a prisoner shall be reduced to writing. They shall be read to the prisoner, who may correct or add to them, and when made conformable to what he declares is the truth, they shall be certified and signed by the magistrate.” And in section 4572: “That all examinations had pursuant to the provisions of this chapter shall be certified by the magistrate, taking the same to the court at which the witnesses are bound to appear, within twenty days after taking of the same, etc., and the examinations taken and subscribed as herein prescribed may be used as evidence before the grand jury, and on the trial of the accused, provided he was present at the taking thereof, and had opportunity to hear the same and to cross-examine deposing witnesses, and if such witness be dead or so ill as not to be able to travel, or by procurement or connivance of the defendant has removed from the State, or is of unsound mind.”

It will be noted that this examination was never either subscribed or certified, nor was it read over to the witness Barnes or approved by him, said Barnes being then a defendant, and we concur in the view of defendant’s counsel that the stenographer’s notes do not comply or come within the provisions of the statute. But a proper perusal of this legislation will disclose that the same is in extension of the common-law principle which we are considering, that its purpose was to make these preliminary examinations, when properly taken, certified, and filed, in the nature of an official record, to be read in evidence on mere identification, and that it does not and was not intended to restrict or trench upon the common-law principle that evidence of this kind, when repeated by a witness under a proper oath, and who can and does swear that his statements contain the substance of the testimony as given by the dead or absent witness, shall be received in evidence on the second trial. And well considered authority is to the effect that stenographers’ notes, when the stenographer who took them goes on the stand and swears that they are accurate and correctly portray the evidence as given by the witness, come well within the principle.

Speaking to this question, in the case of Mattox v. U. S., supra, at p. 244, Associate Justice Brown said: “That all the authorities hold that a copy of stenographic report of his entire former testimony, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of the deceased witness, is competent evidence of what he said.” And the principle is approved by us in Settee v. R. R., 171 N. C., 440. In that case it was held, among other things, as follows: “The testimony of a witness, stenographically taken at a former trial, wbo is absent from tbe State under sucb circumstances tbat bis return is merely contingent or conjectural, may be received as evidence on a subsequent trial of tbe same cause of action wben its correctness is testified to by tbe official stenographer wbo took and transcribed it, and there is no suggestion tbat tbe record thereof was not full and entirely accurate. As to whether this will apply wben tbe witness is temporarily absent, qucsre

Defendant excepts further to tbe refusal of tbe court to give bis special prayer for instructions, but such an objection cannot for a moment be sustained. Tbe prayer, as shown above, embodies tbe proposition, in effect, tbat although tbe court on a preliminary bearing and with ample evidence in support of tbe position bad found tbat tbe witness Barnes was absent by procurement of tbe defendant, tbat tbe evidence of tbe witness is inadmissible, and should not be considered by tbe jury, unless they should find from tbe evidence tbat Barnes is absent by tbe inducement or other act of defendant. And all tbe authorities on tbe subject so far as examined are to tbe effect tbat this question of admitting tbe evidence and tbe pertinent findings preliminary thereto, are for tbe courts and not for tbe jury; tbat they are referred primarily to tbe sound discretion of tbe trial judge, and bis action thereon will not be disturbed on exception or appeal unless there has been manifest abuse of sucb discretion. Reynolds v. U. S., p. 145, supra; State v. Wiggins, 50 La. Ann., 330; People v. Bruno Lewandowski, 143 Cal., 574; Rex v. Stephenson, 9th Cox Cr. App., 156.

In tbe Reynolds case, supra, Chief Justice Waite, speaking to tbe question, said: “Sucb being tbe rule, tbe question becomes practically one of fact, to be settled as a preliminary to tbe admission of secondary evidence. In this respect it is like tbe preliminary question of tbe proof of loss of a written instrument before secondary evidence of tbe contents of tbe instrument can be admitted. In Lord Money’s case, supra, it would seem to have been considered a question for tbe trial court alone, and not subject to review on error or appeal; but without deeming it necessary in this case to go so far as tbat, we have no hesitation in saying tbat tbe finding of tbe court below is at least to have tbe effect of tbe verdict of a jury upon a question of fact, and should not be disturbed unless tbe error is manifest.” Tbe objection, therefore, is overruled.

Again, on tbe trial, one of tbe prosecutor’s witnesses bad testified that McGehee, at tbe preliminary trial in Henderson, bad made tbe statement and sworn to it tbat be, McGehee, bad been in tbe front of tbe store tbat was broken into, and counsel for appellant requested tbe court to instruct tbe jury tbat tbe statement made by McGehee could not be considered as against Maynard. Tbe court gave tbe instruction with the qualification “unless tbe circumstances go to show tbat they were together tbat night.” Tbis statement of tbe witness, as it appears in tbe record, is so indefinite, giving neither time nor circumstance, that tbe statement itself, and anything that concerns it, might well be disregarded — but conceding that tbe statement referred to such time as would make it a pertinent circumstance, tbe entire evidence tended to show that tbe parties, McG-ehee and Maynard, were together that night, seen at different places, and evidently engaged in a common purpose in which Maynard appeared to be a leader, and McGehee running the car they were using, Ms own car. The ear that had been at the store was very well identified by the peculiarity of the marks made by two of its wheels on the ground. It was tracked into the Perry plantation, and in the early forenoon after the robbery, coming out of the Perry plantation, at a point where it had stalled, and both of the present defendants trying to get it up a hill. And this qualification of his Honor, even if technically erroneous, was of such slight significance that it could have had no appreciable effect on the verdict, and should not be held for reversible error. In Powell v. R. R., 178 N. C., 243-248, the Court, in reference to some immaterial objection, said: “This cause requiring much time and work, has been fully and carefully tried with the assistance of competent, alert, and diligent counsel on both sides, the determinative issues have been fairly decided, and the result of the hearing should not be disturbed unless it appears that appellant’s defense has been in some way prejudiced.” And further: “In a well considered opinion by Associate Justice Walker, in Brewer v. Ring, 177 N. C., 476, it was said, 'Courts do not lightly grant reversals or set aside verdicts on grounds which show the alleged error to be harmless, or where the appellant could have sustained no injury from it. There should be something like a practical treatment of a motion to reverse, and it should not be granted except to subserve the ends of substantial justice,’ citing Hilliard on New Trials (2 ed.), secs. 1-7.”

On careful consideration, we are of opinion that no reversible error appears in the record, and the judgment of the trial court is affirmed.

No error.