The record-union., 1893-04-14
DANIEL GARDENERS APPEAL.
1t Was Regarded FavorabIy by the
Supreme Court,
Which Reverses the Judgment and
Orders a New Trial-Why the
Reversal Was Granted.

judgment IN the case OF Daniel Gardner,
who was convicted in this county in No
vember, 1891, of criminal assault upon a
little girl named Lizzie Cox, and SEN
fenced by Judge w. C. Van Fleet to five
years in the State Prison.
After he had been in prison one week
his attorneys, Grove L. johnson and S.
S. Holl, procured his return to the County
Jail on writ of probable cause. pending
an appeal TO the Supreme Court.
The latter was taken on the ground that
the court had no jurisdiction to affiX any
penalty, or render any judgment, for the
reason that no punishment was provided
for the otfense by the statute; also, that
the information did not state facts suffi
cient to constitute a public ot1ense. The
Objectionable language of the informa-
ton is said Lizzie Cox being then and
there of the age of II years."
DECISION OF THE COURT.
The decision of the Supreme Court was
filed yesterday in the office of the Clerk
of the Supreme Court, and is as follows:
1t is now insisted that the information
does not show the child to have been
under ii years of age. Appellants
(Gardner'S) position has no merit, and
the objection to the information, if it is
Objectionable, is entirely too technical to
be reached otherwise than by special de-
murrer. As to the remaining ground
relied upon to arrest Judgment, it was
not matter that could be urged upon
the hearing of such a motion. \ motion
OF that character can only be based upon
defects appearing upon the face of the in
formation or indictment But the ques-
ton Is before us on appeal from the iudg-
ment, and we proceed to its considera-
ton.
1t is essential that no penalty is pre-
scribed by statute for a conviction of tho
oifense here charged. 1t will be noticed
that the defendant was convicted Of an
attempt to commit rape, and not of the
offense of an assault with intent to COM
NIT rape, for which provision is made by
the Penal Code. There is distinction
between these ohenses, and the facts re-
quired to prove an attempt are not neces-
sarlly sufficient to prove an assault with
intent.
In order to determine what the punish
ment for all attempt to commit rape is we
must look for the longest term OF i'm pris-
onment imposed for the commission of
the crime OF rape. a defendant convicted
OF rape may be sentenced Tor life or he
may be sentenced for any term not less
than live years.
1t Is Insisted that u judgment of life i'm
prlsOnment is 4 longer term of imprison-
nent than o.Ie for any stated mum ber OF
years, and the statute providing that the
judgment upon the defendant should be
Tor term of years not exceeding one
half of the longest term prescribed upon
a conviction for rape, it follows that the
Judgment should be for term Of years
not exceeding one-half of the defendant
lie, and such term of years being i'm
possible OF calculation, the statute is
meaningless, and consequently no pen
atty for this oilense is found in the law
ms reasoning is ingenious, but not
sound. If the judgment Of five years is
not III excess Of one-half of the longest
term that could be given, il case the
statute did not allow lie imprisonment,
1t cannot be i'll excess OF one-haif OF Il lite
imprisonment, for that is a longer term.
The evidence is sufficient 10 support the
verdict, and i'll this class of cases the evil
dence OF the prosecuting witness, if con
vincing the jury and satisfying the law,
need not be corroborated.
The court erred in admitting the testi-
mony OF the witness Brier
one Stone was examined as 4 witness
at the preliminary examination of de-
iendant. at the trial it was found that
said Stone could not be found in the
State, due diligence being used There
upon the District Attorney attempted to
Stone taken at the preliminary examina-
ton. The deposition was rejected by
reason OF defective certificate thereto,
and thereupon the stenographer. Brier,
was called and testified as to the evidence
given by the witness, Stone, at the pre-
liminary examination.
One of the objections made to the adj
mission OF the evidence was that the evil
dence of an absent witness, given at the
preliminary examination, could only be
used at the trial by the introduction of
his deposition taken at that time. Both
reason and authority sustain this DO
sition. 70 permit the testimony of an
absent witness to be given to the Jury
through the medium of the recollection
OF a bystander at the hearing, and the
reporter occupied no different position.
is to deprive the defendant of the right to
be confronted by the witnesses and so
place before the jury the purest hearsay.
While heresay testimony, under GER
tain peculiar circumstances, is allowed to
be placed before the jury, the facts here
divulged by the record DO not place this
case without the exceptions to the gen.
eral rule. Whatever may be the rule of
evidence regarding these matters in civil
actions as declared by the Code of Civil
Procedure, that rule has no application to
criminal cases. The law states that the
defendant is entitled to be confronted
with the witnesses against him in the
presence of the court, with but a single
exception, and this case is not that ex-
ception. By rejecting the official notes.
the court in effect held that it was not a
deposition, and that fact being estab-
lished, the exception provided by the
statute requiring the presence of the wit
ness in the court at the trial was not COM
piled with, and the witness knowledge of
the facts of the case could only have been
pronounced before the jury from his own
lips. No authority has been called to our
attention, decided since the adoption of
the codes, that justities the admission of
the evidence here introduced.
The proposed evidence of the witness,
Rich, as to the statements made to him
by the prosecuting witness that she was
going to get some money out of the de-
tendant ii she had to put Up job on him,
was admissible as tending to show her
prejudice and interest in the case, provid-
ing the proper foundation was laid when
she was on the stand, but we are not re-
ferred to the folio of the transcript where
such foundation is found.
The objections made by the Attorney
General TO the consideration of the record
in this case are technical in the extreme.
and we pass them by as not demanding
extended notice.
Let the judgment and order be re-
versed and the cause remanded for a new
trial.
Justice Garoutte delivered the opinion.
which was concurred III by Justices
Paterson and Harrison.