State v. Rogers

June 8, 1915. The opinion of the Court was delivered by The defendant was convicted under an indictment charging him with malicious injury, and appealed to the Supreme Court, which reversed the judgment of the Circuit Court, and remanded the case for a new trial. 96 S.C. 350,80 S.E. 497.

Upon his second trial, the defendant was again convicted, and he has appealed to this Court on two assignments of error, which will be reported.

First Exception. The well established rule in civil cases in this State is, that the evidence of a witness who has been examined on a former trial, and where the point in issue is the same, may be introduced on a second trial: (1) Where the witness is dead; (2) insane; (3) beyond seas, and (4) where the Court is satisfied, that the witness has been kept away, by the contrivance of the opposite party,Drayton v. Wells, 10 S.C.L. (1 N. McCord) 409;Petrie v. R.R., 29 S.C. 303, 7 S.E. 515; McColl v. Alexander,84 S.C. 187, 65 S.E. 1021.

This rule does not contravene the constitutional provision that in all criminal prosecutions the accused shall be confronted with the witnesses against him. Cooley's Con. Lim., ch. X, p. 387.

In the case of State v. Campbell, 30 S.C.L. (1 Rich.) 124, it was held that the testimony of a witness, examined on a coroner's inquest, in the absence of the prisoner, though taken down in writing by the coroner, signed by the witness, and returned to the clerk, was not competent evidence against the prisoner, on a trial for murder, after the death of the witness; but the reason why such testimony was not admissible was, because the defendant did not have the opportunity of subjecting the witness to a cross-examination.

The authorities elsewhere are conflicting, as will be seen by reference to the numerous cases cited in the notes toCline v. State, 36 Tex.Crim. Rep., 36 S.W. 435,37 S.W. 722, 61 Am. St. Rep. 850, and State v. Hefferman,22 S.D. 513, 118 N.W. 1027, 25 L.R.A. (N.S.) 873.

The testimony of the witness in the present case did not fall within any of the exceptions that rendered it admissible, and this assignment of error is sustained.

Second Exception. This exception must be sustained, for the reason that the mode of cross-examination therein mentioned, enabled the State to introduce in evidence indirectly, the testimony of witnesses on the former trial, which, as already shown, was inadmissible.

New trial.