
    SUPREME COURT — APP. DIVISION — SECOND DEPARTMENT,
    January 24, 1913.
    THE PEOPLE ex rel. GEORGE R. DOMENS v. THE WARDEN OF CITY PRISON.
    (154 App. Div. 728.)
    (1.) Preliminary examination of accused — Failure of people to PRODUCE ONE OF THE WITNESSES MAKING DEPOSITION UPON ISSUANCE OE WARRANT.’
    A committing magistrate may hold a prisoner for trial, although the People fail to produce for cross-examination, on the demand of the prisoner under sections 194 and 195 of the Code of Criminal Procedure, one of the witnesses examined on taking the information upon which the warrant was issued, where such witness is without the State.
    (2.) Same — Constitutional right of prisoner to be confronted with accuser.
    The constitutional right of a prisoner to be confronted with his accuser exists only on the trial of the criminal charge.
    (3.) Same — Depositions as evidence.
    Depositions of witnesses taken on the issuance of a warrant cannot be used as evidence against the defendant on his trial where such witnesses were not produced at the preliminary examination.
    Appeal by the defendant, The Warden or Keepers of the City Prison, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of October, 1912, sustaining a writ of habeas corpus and discharging the relator from custody.
    
      
      Hersey Egginton, Assistant District Attorney [James C. Cropsey, District Attorney, and Harry G. Anderson, Assistant District Attorney, with him on the brief], for the appellant.
    
      Jacob Eilperin, for the respondent.
    
      
       See Note 27-293.
    
   Carr, J.:

The relator in this proceeding was arrested under a warrant issued by a city magistrate of the city of New York, in the borough of Brooklyn, on the charge of a misdemeanor. There is no question on this appeal as to the sufficiency of the deposition on which the warrant was issued. On the relator’s arrest he was arraigned before a city magistrate and appeared by counsel, and demanded an examination pursuant to chapter 7 of title 3 of part 4 of the Code of Criminal Procedure. It further appears from the record that the hearing of the examination was adjourned four times, in order to enable the People to produce one of the witnesses who had made a deposition upon which the warrant was issued, and which was necessary to sustain the issuance of the warrant. It likewise appeared that on the various days of the adjournment this witness could not be found within the county of Kings, in which the proceeding was being had, nor within the State. On the last adjourned date it was admitted by counsel for the relator in open court that the witness in question was and had been during the time in question absent from the State of New York, and sojourning or resident of the State of Pennsylvania. On the failure of the prosecution to produce this witness for cross-examination by the relator his counsel demanded the discharge of the prisoner. The magistrate denied the motion, and, on the strength of the depositions before him, held the prisoner for trial in the Court of Special Sessions. He fixed bail in the meantime at the sum of $600, making the commitment accordingly. The relator was thereupon committed to the city prison, subject to being discharged upon bail as fixed by the city magistrate, to await the trial of the charge against him in the Court of Special Sessions, as is provided for by statute covering such matters in the city of New York. A writ of habeas corpus was sued out by the relator, and the learned court at Special Term in Kings county sustained said writ, and discharged the relator from custody, assigning reasons specified in the order as follows: “ Upon the ground that the magistrate held the relator for trial, without confronting him with his accuser or affording him an opportunity to cross-examine the witnesses produced against him.”

Sections 194 and 195 of the Code of Criminal Procedure provide as follows:

“ | 194. Depositions, to be read on examination, and witnesses examined. At the examination, the magistrate must, in the first place, read to the defendant the deposition of the witnesses examined on the taking of the information, and if the defendant request it, or elects to have the examination, must summon for cross-examination the witnesses so examined, if they be in the county. He must also issue subpoenas for additional witnesses required by the prosecutor or the defendant.
“ § 195. Examination of witnesses to be in presence of defendant, and witnesses to be cross-examined in his behalf. The witnesses must be examined in the presence of the' defendant, and may be cross-examined in his behalf.”

Both of these sections must be read together, and it is evident that the “ witnesses ” mentioned in section 195 are the “ additional witnesses ” mentioned in section 194. The question then resolves itself into whether a committing magistrate may hold a prisoner for trial if the People fail for any reason to produce for cross-examination, on the demand of the prisoner, the person examined on the taking of the information upon which the warrant was issued. The duty of summoning into court for cross-examination a person who made a deposition is imposed expressly by statute upon the magistrate, if the prisoner so demand, but this duty is not an absolute one, for it exists only, as section 194 specifically provides, where such witness is in the county in which the proceeding is being prosecuted. Here it was conceded that the necessary witness, who had made the deposition, was not only not within the county, but not within the State. Was the magistrate obliged, under such circumstances, to discharge the prisoner? We think not, for the depositions taken before him were sufficient on their face to show the commission of a crime of which there was probable cause to believe the defendant guilty. Accordingly, the magistrate had the right to hold the prisoner for trial provided the circumstances made it impossible to produce the deposing witness for cross-examination by the prisoner. The proceeding of arraignment and examination is wholly statutory. The prisoner is entitled to the full benefit of the statute under its express terms, but here the statute was not violated. He was not afforded an opportunity of cross-examination, not through any neglect or refusal of his right by the magistrate, but because the existing circumstances had deprived the magistrate of the physical and legal power to compel the attendance of the witness, for he was not within the State. The record before us on appeal shows that the counsel for the relator, on the hearing before the magistrate, demanded the discharge of his client, on the ground that the failure to produce the complaining witness for cross-examination deprived the prisoner of the constitutional right to be confronted with his accuser. Whether this right is provided for by our Constitution as arising from the “ Bill of Rights,” and as such is to be implied in the provisions of our Constitution, it is not necessary to discuss here, because, as has been held uniformly, such right exists only on the trial of the criminal charge. And, in this State, it is subject to the qualification that if, in a preliminary examination before the indictment or trial, the prisoner has been confronted with his accuser and has had an opportunity to cross-examine him through counsel, then the testimony of the accuser, so taken in the preliminary examination, may be used at the trial, provided such witness should thereafter die or be beyond the jurisdiction of the court at the time of the trial. (People v. Fish, 125 N. Y. 136, 8 N. Y. Crim. 129.) At a trial of this relator before the Court of Special Sessions the depositions taken on the issuance of the warrant in this proceeding could not be used as evidence against the defendant because of the failure to afford him an opportunity to cross-examine, at the preliminary examination, the witness in question. On this appeal the relator has submitted no brief, but in the oral argument of his counsel he insisted most strongly that the provisions of the Code of Criminal Procedure itself gave no power to the magistrate to commit for trial unless there had been an opportunity to the prisoner to cross-examine the person who had been previously examined on the taking of the information, in this view we do not concur. Under the circumstances of this case, as hereinbefore stated, there was no illegal refusal of the right to cross-examination; the difficulty arose from a legal and physical impossibility on the part of the court to summon the missing witness and to produce him in court for the purpose of such cross-examination. If this situation should continue, then it will not work to the disadvantage of the prisoner if he be brought to trial.

The order should be reversed, the writ dismissed, and the relator remanded to custody under the terms of the commitment of the magistrate.

Jenks, P. J., Thomas, Woodward and Rich, JJ., concurred.

Order reversed, writ, dismissed, and relator remanded to custody under the terms of the commitment of the magistrate.  