State v. Storm , 127 Mont. 414 ( 1954 )

MR. JUSTICE FREEBOÜRN:

This is an appeal by John Loy Storm, defendant and appellant, from a judgment of conviction of murder in the second degree, under which he was sentenced to serve 20 years in the state prison.

The facts of the case are stated in State v. Storm, 125 Mont. 346, 238 Pac. (2d) 1161, wherein a new trial was granted.

Herbert (Chub) Hay, a witness for the prosecution who testified in the first trial, did not take the witness stand in the second trial. In his absence, and over the defendant’s objection, the prosecution read his testimony to the jury sitting in the second trial. The objection should have been sustained.

Hay’s testimony discloses that in an alleged conversation between Hay and defendant, while both were prisoners in the county jail, the defendant admitted the killing. In court, to county officers and others, defendant denied such killing. Hay, at the time of such alleged conversation, was serving a 30-day sentence for passing a fifty dollar bad check. He served 26 days of the 30-day sentence. Shortly before his arrest on the bad check charge, he had finished serving 53 days in a Billings jail for “reckless or drunk driving.” According to Hay, the alleged admission by defendant took place “a day after” defendant had given Hay a letter to be mailed by Hay after his release. The letter was addressed to the defendant’s former wife. In this letter, admitted in evidence, the defendant said it “sure looks like I am stuck with first degree murder unless some one confesses. * * * I’m afraid John [his son] will do a foolish thing, if * * ppig will be mailed in Billings * * * I ’ll send this out by a fellow who is going out tomorrow as they don’t allow any mail to go out unless they read it. * * * ’ ’

Not only did Hay give the letter to the sheriff, after promising-defendant to mail it in Billings, but he also conveyed the alleged admission of the killing by defendant to the sheriff. In addition he told the sheriff of a conversation which defendant and his former wife had, and which Hay secretly and intentionally listened in on.

There is no other evidence, except the testimony of Hay read to the jury, which places or tends to place the defendant at the scene of the crime. The only other evidence tending to incriminate defendant are threats allegedly made.

R. C. M. 1947, sec. 93-401-4, provides that: “A witness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive judges of his credibility.

Based upon the above statute our district courts, in the trial of cases, give an instruction similar to instruction No. 7 given by the trial judge in this case except the last sentence thereof, which is usually given separately. Instruction No. 7 reads: * * in determining the weight to be given to the testimony of any witness you have the right to consider the appearance of each witness on the stand, his manner of testifying, his apparent candor or lack of candor, his apparent fairness or lack of fairness, liis apparent intelligence or lack of intelligence, Ms knowledge and means of knowledge of the subject upon which he testifies, together with all the other circumstances appearing in evidence on the trial. Under our law the direct evidence of any witness who is entitled to full credit is sufficient proof of any fact except perjury or treason. ’ ’

Since the members of the trial jury neither saw nor heard Hay testify, defendant was denied the right to have the credibility of Hay, as a witness, judged by the jury; and the jury had no way of determining his credibility as provided by R. C. M. 1947, sec. 93-401-4, and instruction No. 7.

Realizing the inability of the jury to judge the credibility of Hay, the trial court gave the jury instruction No. 8 which read: “You are instructed that the instruction on credibility cannot apply to the witness Hay whose testimony was read into the record and his testimony relating to a confession or an admission allegedly made by defendant cannot be considered by you as evidence of the guilt of the defendant unless said testimony is supported by other evidence in this case.”

The court should have added to instruction No. 8, “which proves the defendant guilty beyond a reasonable doubt,” for if the jury had the opportunity of seeing Hay on the stand and after doing so had decided he was not entitled to credit, and other evidence, as here, was not sufficient to prove guilt beyond a reasonable doubt, the conviction could not stand, for threats alone do not justify a conviction.

However, instruction No. 8 could not cure the injury done defendant by the failure of Hay to appear upon the witness stand and by the reading into evidence of his testimony, in his absence.

Our state Constitution, Article III, sec. 16, provides: “In all criminal prosecutions the accused shall have the right * * * to meet the witnesses against him face to face * * *.” Our legislature has emphasized this constitutional guarantee by using the same words in R. C. M. 1947, sec. 94-4806, subd. 3. Only by following this guarantee and admonition can a defendant in a criminal action be assured of a fair trial. For it is only by meeting a witness face to face that he can be examined and cross-examined before a jury, which from his appearance, words and actions can determine if the witness is entitled to credit.

This right of the defendant to meet the witness against him “face to face” has but one exception in our state Constitution, Article III, sec. 17, which provides that where a person is imprisoned for the purpose of securing his testimony in any criminal proceeding, his deposition may be taken in the presence of the defendant and used as evidence on the trial, if the witness be dead or absent from the state at such time. Undoubtedly, the makers of our Constitution made this exception on the theory that the freedom of the witness was as sacred and as much entitled to preservation as that of the defendant.

Speaking of Article III, sec. 16, of our state Constitution, this court in State v. Vanella, 40 Mont. 326, 106 Pac. 364, 367, said: “He [the defendant] is entitled to meet the. witnesses against him face to face, if he insists upon it. In other words, these are rights which he may invoke. They are for his benefit, and, if he insists upon them, they cannot be denied him (State v. Lee, 13 Mont. 248, 33 Pac. 690) * *

iye have in mind the Lee case cited above and also the case of State v. Byers, 16 Mont. 565, 41 Pac. 708. Neither of these cases touch upon the right of the jury to pass upon the credibility of a witness by observing such witness on the stand, while being examined and cross-examined.

We are also mindful of the many cases which allow evidence given at a first trial to be read into the record in a second trial, in the absence of the witness giving the same. These cases are all based on the theory that the accused has been present when the testimony was given, and had the opportunity of cross-examining the witness. 15 A. L. R. 512. Such cases proceed on the theory that the advantage of having the jury see the demeanor of the witness is no essential part of the right of a defendant to meet the witness against him ‘ ‘ face to face. ’ ’

State v. Heffernan, on rehearing, 24 S. D. 1, 123 N. W. 87, 25 L. R. A., N. S., 876, 140 Am. St. Rep. 764, holds that the advantage of having the jury see the demeanor of the witness is no essential part of the notion of confrontation and demeanor, even, may be dispensed with in case of necessity.

We cannot agree that the manner and demeanor of the witness before a jury is unimportant. In fact, R. C. M. 1947, sec. 93-401-4, supra, makes it all important. Such importance is bulwarked here by instruction No. 7, supra, given by the trial court in this case'. It is so important that the presumption that a witness speaks the truth may be destroyed by the appearance and manner of the witness on the stand.

Here the conviction of defendant rests upon the testimony of an absent witness: A witness whose promise to mail a letter was made with no intention of keeping it; a bad check artist; an intentional eavesdropper; and a carrier of information to the sheriff. Certainly a person whom the average citizen would not trust with anything of value and one who was rewarded by a reduction in sentence and immediate release from jail.

It was the right of the defendant to have the jury see and observe the witness Hay upon the witness stand. It was his right that the jury see how Hay acted while under direct and cross-examination. It was his right to have the jury judge the credibility of Hay from his appearance and manner while on the witness stand. None of these rights could be had except and unless the witness met the defendant “face to face” in the presence of the jury during the course of trial. Had the jury-seen and heard Hay as a witness before them, and felt such witness was not entitled to credit, defendant would have been entitled to a verdict of acquittal.

The fact that the first jury, which saw and heard Hay testify, also convicted the defendant minimizes nothing said here, because other evidence, sufficient to place the defendant at the scene of the crime and to make a case for the jury, was placed before the jury in the first trial. This evidence was held to have been improperly admitted upon the first appeal before this court, and was not placed before the jury in the second trial.

Accordingly the judgment is reversed and the cause is remanded to the district court for a new trial (R. C. M. 1947, secs. 94-8210 to 94-8212) unless the district court should order a dismissal pursuant to the provisions of R. C. M. 1947, sec. 94-9505.

MR. CHIEF JUSTICE ADAIR, and MR. JUSTICE BOTTOMLY, concur.