
    Mitchell v. The State of Ohio.
    (Decided May 4, 1931.)
    
      Mr. John A. Logan, Mr. Karl Clark and Mr. Clinton Egbert, for plaintiff ip error.
    
      
      Mr. Z. G. Morgenthaler, prosecuting attorney, for defendant in error.
   Hamilton, J.

Plaintiff in error, James- A. Mitchell, was convicted in the court of common pleas of Butler county, Ohio, on the charge of manslaughter. The charge grows out of the plaintiff in error striking one Henry G-ehhardt with his automobile, resulting in the death of G-ebhardt.

The motion for a new trial was overruled, and Mitchell was sentenced by the court to the reformatory. Prom that judgment error is prosecuted to this court.

The main specification of error claimed is in the admission of evidence at the trial over the objection of the defendant.

The evidence objected to grows out of the following, as disclosed by the bill of exceptions: “And thereupon Mr. Haines (the prosecutor) made the following statement: ‘We desire to offer evidence introduced at the preliminary hearing of the defendant, James Mitchell, in the Municipal Court in the city of Hamilton, containing evidence of William Burt, to be read by the court stenographer of the Municipal Court, for the reason that William Burt is an all important witness in this case. Subpoena was issued for him. He cannot now be located. To the best of our information he is somewhere in Kentucky or Virginia and is beyond the limits of the jurisdiction of this Court, and that it is impossible for us to obtain his testimony in person at this time after having made reasonable and diligent endeavor to obtain the same, and at the court of justice his testimony should be had in this proceeding and that he is an all important witness. The man, Mr. Burt, lives at Trenton, Butler county, Ohio.’ ”

Thereupon the jury was excused and the prosecutor undertook to lay the foundation for the reading of the evidence of the witness Burt, given at the preliminary hearing before the municipal court. The prosecution called two witnesses for the purpose of showing that the presence of Burt could not be produced at the trial. The substance of this evidence was that Burt lived at Franklin, Ohio, in a county adjoining Butler county; that the witness called at his residence in Franklin, and talked to Mrs. Burt, the wife, who stated that Mr. Burt was not at home; that he had gone away prior to Decoration Day, intending to go to Cincinnati over Decoration Day, then to Eastman, Kentucky, and on to West Yirginia; that he was on a two weeks’ vacation; that she did not at that moment know just where he was; that he did not know the trial was coming up so soon, and he therefore went on a two weeks’ vacation.

On this showing, at the instance of the state, the court permitted the court stenographer of the municipal court of Hamilton to read to the jury at the trial of the defendant a transcript of his notes of Burt’s evidence taken at the preliminary hearing against Mitchell. This was all done over the strenuous objection of the defendant. The court permitted this evidence to go to the jury in this manner presumably under the provision of Section 13444-10, Greneral Code, one of the sections of the new Criminal Code (113 Ohio Laws, 188). This section reads as follows: “Testimony taken at an examination or a preliminary hearing, at which the defendant is present, or at a former trial of the cause, or taken by deposition at the instance of the defendant, or the state, may be used whenever the witness giving such testimony shall have died, or could not for any reason be produced at the trial; or whenever the witness has, since giving such testimony, become incapacitated to testify. If such former testimony is contained within a bill of exceptions, or authenticated transcript of such testimony, it shall be proven by the bill of exceptions, or transcript, otherwise by other testimony.”

Prior to the enactment of Section 13444-10, General Code, the law in Ohio on this proposition was laid down in the case of State v. Wing, 66 Ohio St., 407, 64 N. E., 514, the syllabus of which is: “In the trial of a criminal case, evidence of the testimony delivered in a previous trial of the same case by a witness not dead, but beyond the jurisdiction of the court, or limits of the state, is not admissible unless it appear to the satisfaction of the trial court, that the witness is absent through the connivance, or by the procurement of the accused.”

The section of the Code is in derogation of the Ohio common-law rule of evidence, and extends the rule to apply “Whenever the witness giving such testimony * * * could not for any reason be produced at the trial; or * * * has * * * become incapacitated to testify. ’ ’

It becomes necessary, therefore, to construe the phrase “could not for any reason be produced at the trial.”

The admissibility of such evidence has been before the courts of many of the states, and of the United States, where it has always been strenuously contended that to admit such evidence violates Section 10 of the Bill of Bights of the Constitution of Ohio, which provides that on any trial in any court the party accused shall be allowed to meet the witness face to face.

After much litigation it has been established that the constitutional guaranty has reference to the personal presence of the witness called to testify, and not to the quality or competency of the evidence to be given.

We advert to these rules as throwing light on the interpretation to be given to the phrase under consideration, suggesting that great care should be given in ascertaining the legislative intent in the use of the phrase “any reason.” It must be conceded that “any reason” is a loose phrase when used to permit the introduction of hearsay evidence, which avoids constitutional guaranties only by judicial construction, and which may deprive a citizen of his life or liberty.

We are of opinion that the legislative intendment of the phrase “any reason” is a reason growing out of the necessities of the case, and not, as shown in this case, a mere delay of a few days.

In the case of State v. Wing, supra, the court says in the opinion, at page 422 of 66 Ohio State, 64 N. E., 514, 517: “The ground upon which such declarations [dying declarations] are admitted in cases of homicide * * * is largely that of necessity in many cases', arid became a rule mainly for that reason.”

Thus the Supreme Court declared the reason of necessity in the admission of such evidence. Further along in the opinion, toward the close, at page 426 of 66 Ohio State, 64 N. E., 514, 518, the court stated: “There is another reflection which we ought not to pass by. In the case at bar, the state made the showing at the trial, that the desired witness could not be found by the officers and was then beyond the jurisdiction of the court. By adjournment or continuance of the case to a future time, she might have been found and produced in court. The state should not be given undue advantage of a prisoner, and it may be, that in the hurried examinations which sometimes are practiced before magistrates in a large city, a cross-examination is greatly restricted, while, if the witness appears in the court of common pleas, the latitude of a full cross-examination, might properly increase the legitimate opportunities for a fair trial and an acquittal. There, the processes of sifting the evidence and ascertaining the truth are far superior to those available before a justice of the peace, or other examining magistrate. Hence, great caution should be exercised in allowing one to repeat at the final trial what a material witness may have said on the former hearing, and it should not be done except in clear and well recognized cases of necessity.”

The above presents cogent reasons for the construction to be placed on the phrase under consideration.

We have stated the showing made by the state as a reason for the introduction of the transcript of Burt’s evidence given at the preliminary hearing.

Burt was the foreman of the workmen where the mishap occurred. There is every reason to believe he would desire to be present as a witness for the state. He knew nothing of the date of trial when he went on a two weeks ’ vacation. Several days of that two weeks had passed at the time of the trial. A week’s postponement of the trial would "in all probability have enabled the state to produce him at the trial. Absence by collusion or at the instance of the defendant is not suggested. The showing of the state presents an excuse for the reading of the testimony rather than a reason therefor.

We are therefore of the opinion that a short delay or postponement of the trial is not sufficient to admit the reading of Burt’s testimony, under the Code provision, where there is no showing that the state would be injured thereby,' and the probability that adjournment of the trial for a short time would have enabled the state to produce the witness in court.

We find no other prejudicial error.

For the error stated, the judgment of the court of common pleas of Butler county, Ohio, is reversed, and the cause is remanded to that court for a new trial.

Judgment reversed and cause remanded.

Boss, P. J., and Cushing, J., concur.  