Petty v. State , 72 Tenn. 326 ( 1880 )

Turney, J.,

delivered the opinion of the C ourt.

The accused was convicted of grand larceny and sentenced to five years’ imprisonment in the penitentiary. On the calling of the cause, the defendant moved a continuance, and presented his affidavit of the absence of a material witness, with a recitation of the facts he expected to prove.

The Court ruled the affidavit to be sufficient, whereupon the Attorney-General proposed to agree that the affidavit might be read as the deposition of the witness, who, it was alleged, was a nonresident. The accused refused to agree to this, but insisted upon a continuance. The Court overruled the motion to continue; gave permission to the defendant to amend his affidavit by the addition of any other material fact he expected to prove by the witness, and .then allow it to be read as the deposition of a credible witness, announcing that he would charge the jury to con-' sider of it as of the testimony of a credible witness. The accused still, objected. A trial was had, and the Court charged as he had announced he would.

The case is before us upon the single question, had the Court the power to force a trial under the circumstances stated ?

The constitutional provision that “In all criminal prosecutions, the accused hath the right to meet the witnesses face to face,” has reference to witnesses in support of the prosecution, and not to witnesses on behalf of the defense. This has long been settled in this State by the statutory enactment allowing persons charged with crime to take the depositions of witnesses. That statute has been repeatedly acted upon,- and held by this Court to be constitutional.

In the present case, the witness was a nonresident of the State, and not subject to its compulsory process.

When the prisoner is permitted to have the benefit of the testimony of a real or mythical witness, in language of his own, suggested {and employed by himself, and deliberately penned by his attorney, without subjection to the test of a cross-examination, we think its admission as the testimony of a credible witness is no error of which he can complain.

Affirm the judgment.