People v. Elliott

This defendant has been twice tried. The judgment of conviction at the first trial was reversed by this court ( 163 N. Y. 11 ). At the second trial a judgment of conviction was entered upon the verdict of a jury, which, on appeal, was affirmed by the Appellate Division, and we are now called upon to pass on that determination.

The learned counsel for the defendant presents three grounds for the reversal of this judgment: Error in challenging the jury; failure of the trial judge to follow the ' decision of this-court on the first appeal in charging the jury; the admission of the testimony of Dr. Brooks, who was dead at the time of the second trial.

The Appellate Division decided that none of these grounds presented reversible error, and we are of the same opinion, but deem it proper to further consider the question whether Dr. Brooks’ testimony was properly read on the second trial.

The Code of Criminal Procedure (§ 8, subd. 3) provides that in a criminal action the defendant is entitled “To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness, * * * the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found in the state.”

There seems to be no provision of the Code of Criminal Procedure authorizing, in terms, the reading on a second trial of the testimony of a deceased witness sworn at the first trial.

The Code of Civil Procedure (§ 830) provides as follows: “ Where a party or a witness has died * * * since the trial of the action, * * "x" the testimony of- the decedent, "* * "x" taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing, or upon any subsequent trial or hearing, of the same

The section quoted refers to the death of a witness after the trial of an “ action.”

Section 3333 of the Code of Civil Procedure defines “ action ” as follows : “ The word 1 action,’ as used in the New Revision of the Statutes, when applied' to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”

This definition renders it clear that section 830 of the Code of Civil Procedure, above quoted, refers to both civil and criminal actions.

Section 8 of the Code of Criminal Procedure provides that the defendant shall be confronted with the witn esses against him in the presence of the court. This is merely a" re-enactment of the Bill of Rights, which provides in section 14 that the accused shall be confronted with the witnesses against him. (2 R. S. [Banks’ ed.] 1561.)

The Constitution of this state, unlike the Federal Constitution, has.no similar jiro vision.

The question has been much discussed whether the reading of testimony, reduced to a deposition in a preliminary examination, where the accused was represented by counsel and exercised the right of cross-examination, or testimony taken at a former trial, where the deponent or witness was dead at

In the case of People v. Williams ( 35 Hun, 516 ) the question of the constitutionality of section eight, subdivision three, of the Code of Criminal Procedure was under consideration. Judge Daniels said (p. 518): “ It is manifest from the authorities permitting the deposition or evidence of a deceased witness to be read upon a trial of the accused, that it has not been deemed essential that he should be confronted by the witness against him upon the trial itself; but if the evidence be taken in the course of the proceeding in his presence, and with the right or privilege of cross-examination secured to him, that will be sufficient to allow the deposition to be read, in case of the decease of the witness making it, between the time when it may be taken and the time of the trial. And if this article of the Constitution should be held to be applicable to the case, it would not, therefore, exclude the deposition received in evidence on the trial of the defendant.”

The Constitution here referred to is the Federal Constitution, for, as already observed, the State Constitution has no provision for the right of confrontinent.

In People v. Penhollow ( 42 Hun, 103 ) it appeared that a witness on the part of the People, at the first trial of this indictment, was dead at the time of the second trial, and the district attorney offered to read in evidence her testimony as previously given. To the reception of this proof the defendant objected, on the ground that it was incompetent and unconstitutional, being in violation of the sixth article of the amendments of the Constitution of the United States, which provide that in all criminal prosecutions the accused shall be confronted with the witnesses against him.

The court said (p. 105): “ This provision has no application to criminal trials in the state courts for a violation of

In Brown v. Commonwealth ( 73 Penn. St. 321 ) the question was considered whether the testimony taken by the ■ commonwealth, on a hearing before a justice of the peace, of.a person charged with murder, was admissible on the trial. Chief Justice Eead, in a very careful and able opinion, considered the question at some length, citing many authorities, and reached the conclusion that the testimony was admissible.

A. like question was before the court in Commonwealth v. Richards (35 Mass. [18 Pickering] 434). The learned court • sa.id: Ci It has been contended for the defendant that the admission of such evidence is directly against the twelfth article of the Bill of Eights, which provides that in criminal cases the subject shall have a right ‘ to meet the witness

In People v. Newman ( 5 Hill, 295 ) the Supreme Court of this state held that in a criminal action the public prosecutor will not be allowed to use the testimony given by the witness at a former trial of the same indictment though he be absent from the state. It is stated in &per curiam opinion as follows: It seems to be settled in this court that nothing short of the witness’s death can be received to let in his testimony given on a former trial. (Powell v. Waters, 17 Johns. 176 ; Wilbur v. Selden, 6 Cow. 162 ; and see Jackson v. Bailey, 2 Johns. 17 ; Beals v. Guernsey, 8 Johns. 446 ; White v. Kibling, 11 Johns. 128 ; Crary v. Sprague, 12 Wend. 41 , 44, 45.) But if the rule were otherwise in respect to civil cases, we are of opinion that it should not be applied to criminal proceedings, -x- -x -x- no¡; now necessary, however, to decide that point, the present case being one of mere absence from the territorial jurisdiction of the court.”

In the case of United States v. Macomb ( 5 McLean 286 ) the Circuit Court of the United States,-7tli Circuit, held that

Mr. Underhill, in his work on Criminal Evidence (§ 261), says: “ In criminal as in civil procedure, the evidence of a witness at a prior trial may be proved as evidence in a subsequent trial of the accused for the same offense if the witness is dead or has become incompetent by reason of mental derangement. His testimony is admissible either for or against the party in whose favor he originally testified. (State v. Taylor, Phil. [N. Car.] 508, 513; Hair v. State, 16 Neb. 601 , 605; State v. McNeil, 33 La. An. 1332; O'Brian v. Com., 6 Bush [Ky.], 563, 571; State v. Johnson, 12 Nev. 121 , 123; State v. Able, 65 Mo. 357 ; Sullivan v. State, 6 Tex. App. 319 .)”

In Greenleaf on Evidence (Vol. 1 [16th ed.], § 163g) this language is used : “ The death of the witness has always and of course been considered as sufficient to allow the use of his former testimony.” Citing a number of cases in England and several states of the Union. (See, also, Abbott’s Trial Brief Criminal Cases, § 664, and cases cited ; Cowen & Hill’s notes on Phillips’ Evidence, vol. 1, p. 571, note 437, and p. 578, note 442.)

It seems to have been the universal rule that the evidence of a deceased witness could be read on the second trial in civil cases. It has been debated to some extent whether the rule should be extended to criminal trials. It is safe to say that the great weight of authority is in- favor of such extension. The object of all trials, civil and criminal, is to arrive at' the truth and do justice, and it would certainly tend to an opposite result if testimony carefully taken upon a former trial, at which the accused was represented by7 counsel, who

In this state the discussion of the question seems to have been confined to the lower courts, and mainly in the earlier cases.

There is little doubt that the practice in civil cases in this regard has been adopted by the criminal courts as matter of course, which accounts for the fact that the question has not been presented to this court, so far as we are advised.

The legislature in enacting section 830 of the Code of Civil Procedure, already quoted, evidently sought to codify what was an existing general rule in both civil and criminal .cases. If this legislation could properly be regarded as violating the right of confrontment, as contained in the Bill of Eights, it would amount only to a modification of the rule as laid down in the former legislation. There is, however, no-ground for such criticism, as it is very clear that the right of confrontment has been carefully guarded in this and other-states by only admitting such testimony or depositions as were taken in the presence of the accused, represented by counsel, exercising the full right of cross-examination.

'While unable to find reversible legal error in this record, we feel constrained to repeat what we said on the first appeal ( 163 N. Y. 12 ), that “in a case like the one before us, where the indictment charges a heinous and unnatural offense, it is-most difficult to secure an absolutely fair trial.”

There are features of this case, common to both trials, where evidence was procured for the People at the fearful cost of a mother voluntarily subjecting a mere child to the alleged repetition of an unthinkable and horrible offense by the father. This is a phase of the case we do not feel justified in passing over without comment. It was an unconscionable and brutal act on the part of the child’s mother, in seeking to secure her husband’s conviction, by resorting to a mode of procedure that shocks the moral sense of every right-thinking person.

The judgment of conviction should be affirmed.

Parker, Ch. J., O’Bbien, Martin, Yann, Cullen, JJ. (and Gray, J., in result), concur.

Judgment affirmed.