Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-30

contrary. l.. q. L., Sec lSS, suDdlV.
49,; Wheeler V. McFerron. 80 Or, 1O5,
1O7; State V. Walton SO Or, 557.
II is further contended that the
testimony Of Arthur Meyers was in
competent, in that 1t was an infringe
ment OF the constitutional right OF
the defendant to meet the witness
face to face. l.. o. L., Sec. 727, sub
div s, provides evidence may be Civ
en- on the trial as follows: THE tes-
] timony OF a witness, deceased or out
I OF the state, or unable TO testify, Civ
en- in a former action, suit or pro-
ceeding, or trial thereof, between tbe
same parties, relating to the same
matter" While Sec. 1888 provides:
1.-THE law Of evidence in civil actions
is also the law of evidence in crimi-
nal actions and proceedings, except
as otherwise specially provided in
this Code" The Constitution of Ore
gon, Art. I, Sec. II, provides that in
all criminal prosecutions the accused
shall have the right to meet the wit
nesses face TO face, and the constitu-
tions Of most of the states, as we'll as
the constitution Of the United States,
contain similar provisions. 1t is held,
however, that where the accused has
once enjoyed the right to cross-ex-
anime and confront the witness at an
earlier trial, his constitutional right
to meet him face to face Is not vio-
lated by the admission of the testi-
mony Of such witness when absent at
a subsequent trial. If the defendant
hts
liminary examination, and has had an
opportunity to cross-eXamine wit
nesses, he has enjoyed his right to
meet his accuser face to face, and no
objection exists to receiving the tes-
timony. Underhlll on Grim. Ev. q
ed, Sec. 265; State V. Bowker, 26
Or, 3O9, 313. This question was con-
sidered and thoroughly discussed in
state v Walton, supra, where Mr..
justice Bean, in commenting upon
sec. 1886, l.. 0. L., which declares
that In a criminal action the testi-
mony OF witness must be given
orally in the presence of the court
and jury, except in the case of the
witness whose testimony is taken Inv
deposition by order of the court as
provided In L. o. L., Secs. 1913 to
l5l9, inclusive, says: at relates TO
the manner in which the testimony
is to be given or taken in the first
instance, and not to the use which
may be made of 1t after IL is once
| given, The statute was intended IN
make the general rule, concerning
the taking Of depositlons. inapnlica.
PIE TO criminal trials; but we cannot
thlhk II was designed to abrogate a
doctrine so firmly established and
generally applied as that of permit
ting the testimony of a witness given
IN the manner required by statute to
De USED by either the state or defense
on a subsequent trial, when he has
since died or Is absent from tbe
STATE Numerous authorities are
mere collated and cited. It is ner-
I maps a sufficient answer to the con
tehtlon OF counsel for defense IN saw
that the testimony of Arthur Movers
III this criminal action was given
orally and In the presence Of tbe
court and jury at the first trial and
the defendant at that time had fnlI
| ana lalr opportunity to cross-exam-
ihe the witness and meet him face IN
Iace' Under the great weight oP an
authority, and with due consideration
to public policy, we do NOT tbini,
| Snat we should say that the defen-
uaht' after having been once tried
ana convicted, should go free for tbe
reason that his brother, who was a
Witness upon the former trial was
lor any reason absent from the state
ana there was no error I'm allowing
tne testimony of the witness Artbnr
Meyers''to be read by the official re-
/ porter "''"' re-
me state introduced in evidence
tne testimony of Sheriff Mimic ne ~
ms conversation with defendant rel
atlVe TO his whereabouts after tbo
shootlng, to which eyception wos
taken by defendants counsel Tbo
sheriff testified that the defendart
a.ter ms arrest voluntarily stated
lhat Immediately subsequent TO tbe
shooting he had crossed the street
from the city hall and down the alley
ana down. don't call TO mind tbe
1 exact place, | understand soutb M
lhe poor farm There he went into
small shed and stayed part of the
tlule' and in that vicinity think he
stayed until the next night He then
| started east toward Silver CreoI !
tallsi stopped at Mr.. Luthev's place
the next morning for his breakfast
ana got on a wagon going toward
silver Creek Falls, and rode wovs.
stopped at the store at Victor POINT !
ana followed the road toward silver
Greek Falls until he got nearly over
TO where the road goes down the
mountain; there he turned toward
Subumity went to, think. about .
union Hill, where he got on another
wagon; rode through Sublimjtv /
down through the hills and strucl, .
the railroad track at Marion: got ON
the train and went as far sorth no I
Albany got on the next train. come /
back got of at Marion; then went |
through the hills toward the Steiwer
pace down on the old Jefferson road
toward Salem. From there he went |
across south OF Salem toward the |
Feeble Minded Home, out by the asy-
lum and down towards Pratum. He |
told me he had made his mind nm 10 |
come and give himself up, | think ne |
said on Wednesday. | amt sure about |
that point-he had come into the |
town, and come within three or four
blocks of the court house with tho |
Intention of coming in but got fright /
ened and turned back Then went
out on the road towards Praum. |
where he met Mr. Larden, with whom
ne was acquainted, and went home