State of Oregon v. Blount, Sr. , 200 Or. 35 ( 1953 )

LUSK, J.

Defendant was convicted of the crime of rape committed upon his minor daughter, and has appealed.

He assigns error (1) to the court’s denial of his motion fos postpqnement of the trial, and (2) to the court’s refusal to order the state to advance funds for the payment of witness fees and travel expenses of two persons who, it is claimed, would have been material witnesses for the defendant. A third assignment of error was abandoned on the argument. We will consider Assignments of Error Nos. (1) and (2) in inverse order.

On a date not disclosed by the bill of exceptions Charles O. Porter, attorney for defendant, filed a motion for the issuance of two certificates in furtherance of the serving of summons on Tom Nicholson, principal of Moreno School, Moreno, California, and Mrs. Marvella Blount, with her son, Eugene Victor Blount, Jr. The motion recited that it was based on § 26-1816, OCLA (a part of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings), and on the affidavit of Mr. Porter dated March 16, 1953. The affidavit showed that Nicholson was recently the teacher of Diane Blount, the prosecutrix in the case at bar, and “as such he can testify authoritatively and impartially as to her reputation in the community for truth and veracity. His presence would be needed but for .one day and arrangements could be made for him to drive up with other witnesses. ’ ’ The affidavit further showed:

“Marvella Blount was, until recently the wife of the defendant. Her son Eugene Victor Blount, Jr., according to testimony by the prosecutrix in the preliminary .hearing, witnessed the alleged criminal act. Furthermore, the boy can testify as to his older sister’s jealousy and her expressed wish to have the defendant sleep with her just as he did with Eugene, Jr., and Eugene’s two year old sister. The presence of the little boy would only be needed for one day and transportation to Eugene, Oregon, could be arranged for him and his mother with Joseph Blount 4174 Highland Place, Riverside, California. ’ ’

On March 16,1953, the Hon. G. F. Skipworth, circuit judge, issued two certificates, as authorized hy § 28-1816, OCLA. By one certificate he recited that the presence of Tom Nicholson, principal of Moreno School, Moreno, California, is required for one day, and that said Tom Nicholson is a material witness for the defendant, and that his transportation and expenses will be taken care of by the defendant and his friends. By the other certificate the judge recited that

“Eugene Victor Blount, Jr._, four or five years old, is a material witness in the above matter * * *. His presence is required for one day,

namely March 23rd, 1953. The Court is informed that said boy is now living with his mother, Marvella Blount, until recently the wife of the accused, at 511 Mission Boulevard, Riverside, California, and that she may still be working at Sheets Restaurant, 3847 Main Street, Riverside, California.

“Joseph Blount, 4174 Highland Place, Riverside, California, is a brother of the defendant, and it has been indicated that he may be able to bring the boy and his mother to the trial in the above matter, and that the defendant will be responsible for unreimbursed expenses of such a trip. ’ ’

The witnesses did not come, and, at the commencement of the trial on March 23, 1953, seven days after the issuance of the certificates, counsel for defendant moved for a continuance because of the absence of these witnesses. The motion was denied. Later in the trial, while the defendant was on the witness stand, counsel for defendant offered to prove that “We have made every attempt to get Gene Blount, Jr., and that Ave could not get him because we did not have the $200 necessary to bring him up here by order of the court, Riverside County.” The offer of proof was denied, but the defendant was permitted to testify that the proposed witness, Tom Nicholson, was not at the trial because he, the defendant, was unable to raise the money for his transportation, and that Judge Waite, of the Superior Court for Riverside County, California, had ordered that the money be advanced.

On the Merits

The Uniform Act above referred to was enacted in 1937 and appears as §§ 26-1815 to 26-1820, both inclusive, OCLA. The Act has not heretofore been before this court for construction. It has its counterpart in 40 of our sister states (including California) and in Puerto Rico. See 9 ULA ’52 P.P., p. 12. It was adopted for the purpose of enabling the courts of this state, through the voluntary cooperation of the courts of another state having the same legislation, to secure the attendance of witnesses from such other state to give testimony in a criminal prosecution or grand jury investigation in Oregon.

Section 26-1816, OCLA, provides:

“If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.

“If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence (and of any other state through which the witness may be required to pass by ordinary course of travel), will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.

“If said certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for said hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability may, in lieu of issuing subpoena or summons, order that said witness be forthwith taken into custody, and delivered to an officer of the requesting state only after the tender of payment of the mileage and per diem herein provided for.

“If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person the sum of 10 cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending and five dollars for each day, that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state. ’ ’

Section 26-1817, OCLA, provides:

“If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the county stating these facts and specifying the number of days the witness will be required. Said certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

“If the witness is summoned to attend and testify in this state he shall be tendered the sum of 10 cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and five dollars for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be ppnished in the manner provided for the punishment of- any witness who disobeys a subpoena issued frdm a court of record in this state.”

The defendant contends, as we understand his position, that the Uniform Act, together with § 26-1816, OCLA, authorizes the court to make the allowance in question, and that the court’s refusal in this case to order it deprived him of his constitutional right to compulsory process (Art I, § 11, Oregon Constitution), and to due process of law and the equal protection of the laws as guaranteed in the Federal Constitution.

Section 26-1814, OCLA, which was enacted in 1915, reads:

“Whenever any person shall attend any court, grand jury, or committing magistrate, as a witness in behalf of the people of this state, or on behalf of any person accused of any crime, upon request of the district attorney, or upon subpoena, or by virtue of a recognizance for that purpose, and it shall appear that such person has come from any other state or territory of the United States, or from any foreign country, or that such person is poor, the court may, by an order to be entered in its minutes, direct the county treasurer of the county in which the court or grand jury may be sitting, to pay such witness such sum of money as shall, to said court, seem reasonable for his expenses and witness fees, and said order, so entered, shall be sufficient authority for the issuance and payment of any county warrant therefor. ’ ’

This section may be put out of view for it applies only to persons who have already attended upon the court or grand jury as witnesses, and even as to them the making of an order for the payment of their expenses and witness fees is discretionary with the court. The contention here is that the defendant has the right to an order of the court for an advance of the necessary moneys so that they can be tendered to a witness in another state in accordance with the requirement of the Uniform Act.

The Uniform Act contains no provision authorizing the court to make such an order. It is silent as to the source of the money which must be paid or tendered to a witness, and nowhere in the Act is there any language conferring upon the court authority to make an order for the payment of the fees and mileage by the state. "We cannot read into the statute such a provision without indulging in judicial legislation.

This was the conclusion reached in State v. Fouquette, 67 Nev 505, 221 P2d 404 (1950), cert. den. 341 US 932, 95 L ed 1361, 71 S Ct 799, 342 US 928, 96 L ed 691, 72 S Ct 369, the only case, so far as we are advised, in which the question has arisen. In a carefully considered opinion the court said:

“Although no case directly in point has been found, it is clear that this statute, providing, as it does, that specified sums for fees and mileage shall be paid or tendered to non-resident witnesses summoned to attend and testify in criminal prosecutions in this state, but not providing, either expressly or by implication, that such witnesses summoned on behalf of the defendant shall be brought in without expense to him, does not confer upon the courts of this state authority to procure the attendance and testimony of witnesses from without the state for the defendant in any case at the expense of the public.”

The suggestion is made that because the legislature has authorized payment by the state of fees and mileage of material witnesses for a defendant within the state, a public policy has been established which enables us to read into the Uniform Act a similar provision. The reference is to §§26-1805 and 26-1806, OCLA, where it is provided in substance that the defendant in a criminal action may have subpoenas issued “for not to exceed five witnesses, within the state, at the expense of the state ’ ’ and that the court may make an order allowing subpoenas to issue for a greater number of witnesses upon a showing by affidavit that their testimony is necessary and material. There are similar provisions with respect to witnesses for the state.

In our opinion this legislation — if it can be said to have any bearing on the question at all — gives added emphasis to our view of the meaning of the Uniform Act; for the omission from that Act of any provision for subpoenaing out-of-state witnesses at the expense of the state, by contrast with express provisions of that kind in the statutes that deal with witnesses within the state, creates a strong inference, if any were needed, that the legislature did not intend to bestow any such gratuity in the case of the Uniform Act.

As to the argument, based upon an asserted public policy, we call attention to what is said by a recognized authority on statutory construction:

“What is called the ‘policy’ of the government, with reference to any particular legislation, is said to be too unstable a foundation for the construction of a statute. The clear language of a statute can be neither restrained nor extended by any consideration of supposed wisdom or policy. So long as a legislative enactment violates no constitutional provision or principle, it must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage.” Endlich, Interpretation of Statutes, 8, § 5.

The policy of the state is determined by the legislature, not by this court, and the truth is that, up to 1937, when the Uniform Act was adopted, Oregon had no policy concerning witnesses subpoenaed in another state, for it had no legislation upon the subject. When the Uniform Act was passed the state was free to adopt any policy that it might choose, within constitutional limits, with reference to the subpoenaing of witnesses brought in from other states having a similar statute. It did not choose to provide that such witnesses, whether for the state or for the defendant, should be compelled to come without advancing witness fees and expense of transportation. It did not choose to provide that such advances should be made to witnesses for the defendant, or for the state for that matter, at the expense of the state. The Uniform Act is complete within itself, and by its own terms establishes the policy of the state with respect to its subject matter.

We are also told that the Circuit Court can take upon itself the authority to order the state, or perhaps the county, to pay the expenses of out-of-state witnesses under the provisions of § 13-715, OCLA, which reads:

“When jurisdiction is, by the organic law of this state, or by this Code or any other statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”

This is a purely procedural provision authorizing the courts of this state to adopt a “suitable process or mode of proceeding * * * which may appear most conformable to the spirit of this Code”, in order to enable the courts to exercise a power conferred where the mode of doing so has not been otherwise indicated by statute. The provision is a part of the Code of Civil Procedure adopted in 1862 as a complete act. See General Laws 1862, p 223, § 911; Deady, General Laws of Oregon, p 105, note. It has no application in criminal actions, although it was invoked by the court in State v. Chase, 106 Or 263, 269, 211P 920, which was a prosecution for rape. We are not prepared to say that, in the absence of such a statute, a court is not invested with inherent power to provide appropriate modes of procedure for making effective jurisdiction conferred upon it by the legislature. But that power is irrelevant to the contention made here. If the Circuit Court should order the state or the county to pay the expenses of a witness subpoenaed in another state when the legislature has not authorized it to do so it would not be devising a mode of proceeding for carrying out jurisdiction conferred by the legislature, but it would be exercising an unauthorized jurisdiction. The proper interpretation of § 13-715, OCLA, was clearly expressed by Mr. Justice Harris speaking for the court in Murphy v. Bjelik, 87 Or 329, 361, 169 P 520, 170 P 723, where it is said:

“ * * * This section only applies where jurisdiction is conferred on a court or judicial officer. The section cannot itself be the source of jurisdiction, for it is only available to carry jurisdiction into effect after jurisdiction has first been conferred by the Constitution or some statute.”

There is nothing in the two cases cited in support of the defendant’s position (Kelley v. Kelley, 183 Or 169, 191 P2d 656; Aiken v. Aiken, 12 Or 203, 6 P 682) which is inconsistent with this view.

We take up the defendant’s claim that his constitutional rights have been invaded. Article I, § 11 of the Oregon Constitution, provides in part: “In all criminal prosecutions, the accused shall have the right * * * to have compulsory process for obtaining witnesses in his favor.”

It should he observed at the outset that decisions such as State v. Grimes, 7 Wash 445, 35 P 361, cited in support of the defendant’s position, have no application to this case because the Constitution of Washington expressly provides as a part of the guaranty of compulsory process that “In no instance, shall any accused person before final judgment be compelled to advance money or fees to secure the rights herein guaranteed.” Art. T, §22; Amendment 10, Washington State Constitution. There is no similar provision in the Constitution of Oregon.

The reason for the inclusion of the guaranty of compulsory process in the Bills of Bights of the Constitution of the United States and of the several states is well known. It was to guard against “some particular wrong, which had been avowed or practiced by the government from which we had separated”. State v. Waters, 39 Me 54. The particular wrong in this instance was that in felony cases the accused could not command, as matter or right, compulsory process for his witnesses. State v. Fouquette, supra. But, as the court said in State v. Waters, supra, the rights of defendants “to have their witnesses paid by the government was never claimed in England or this country before the formation of our constitution. It was not one of the evils designed to be guarded against, nor a right to be asserted by constitutional provision.” The authorities quite uniformly say that in the absence of a statute the accused in a criminal case is not entitled to have his witnesses summoned at public expense as a part of the constitutional right to compulsory process. Casebeer v. Hudspeth, 121 F2d 914 (CCA 10th, 1941); State v. Waters, supra; State v. Fouquette, supra; Whittle v. Saluda County, 59 S C 554, 38 SE 168; Roberts v. State, 94 Ga 66, 21 SE 132; Greene v. Ballard, 174 Ky 808, 192 SW 841; United States v. Fore, 38 F Supp 142; Bennett v. Kroth, 37 Kan 235, 15 P 221, 1 Am St Rep 248.

The defendant has certainly not been injured nor deprived of any constitutional right by a statute which enables him, through the voluntary cooperation of California, to compel the attendance of a witness from that state at the defendant’s expense. Without the statute he could not compel the witness to come at all. Neither the requirements of compulsory process nor of the Fourteenth Amendment (Minder v. Georgia, 183 US 559, 46 L ed 328, 22 S Ct 224) demand that the state enact such legislation. Even though the state should do so it would be ineffectual without the voluntary cooperation, through a reciprocal act and its enforcement, of the state where the witness sought to be subpoenaed is found. The Uniform Act does not extend the jurisdiction of the courts of this state beyond its territorial limits, for this is not within the power of the legislature. The operation of the Uniform Act depends upon the principles of comity, and it has no efficacy except through the adoption of the same act by another state. California could repeal its act tomorrow and no constitutional right of any defendant in a criminal action would be touched.

Obviously, if the Uniform Act were to be declared unconstitutional because it does not provide for the subpoenaing of witnesses for the defendant at the expense of the state, the case of the defendant here would not be made any better, because in that event there would be no law at all under which he could have compelled the attendance of the California witnesses. We do not understand that the defendant seeks a ruling of that kind, but rather that he would have this court hold that in the application of the Uniform Act to his case he has been discriminated against and deprived of the equal protection of the laws and of due process of law because he is a poor man and unable to pay the cost of bringing the witnesses here. It would perhaps be sufficient answer to this contention to say that the defendant has not in fact been the victim of any discrimination nor deprived of any right accorded to the state because the state has brought no witness from California, and has received no advantage from the Uniform Act denied to the defendant.

But even though we should assume that in the case of an indigent defendant there exists a right which the Uniform Act does not grant and a power in the court which it does not confer, the exercise of that power would necessarily be conditioned upon the defendant’s invoking it and producing evidence in the form of affidavit or otherwise from which the court could find the fact of poverty. There is nothing of the kind here. As the motion for the certificates, the affidavit in support thereof, and the certificates issued by the judge, disclose, the defendant, so far from asking the court to order the state to pay the expenses of the California witnesses, and so far from producing proof of his own inability to do so, represented to the court that he himself would be responsible for those expenses.

It is urged that upon the trial the defendant did prove his poverty by his sworn testimony in support of his motion for a continuance. That may be conceded, but it must be manifest that we cannot say that the circuit judge erred because he did not make an order which he was not asked to make on the basis of evidence which was not before him at the time he made the very order which the defendant sought.

There are additional reasons for holding that the assignment of error we have been discussing is devoid of merit. These it will be more convenient to discuss in connection with the court’s denial of the motion for a continuance. This motion, of course, was addressed to the sound discretion of the court. It was based on the absence of the two California witnesses, and the court might well have concluded that the defendant was playing fast and loose with it by representing at first, before the trial, that he would bring the witnesses to Oregon at his own expense, and later, upon the trial, attempting to secure a postponement because he had not brought them.

No affidavit in support of the motion was filed as required by § 26-905, OCLA. As a matter of strict practice, therefore, this assignment is not regularly before us. State v. Finch, 54 Or 482, 487, 103 P 505. The defendant contends, however, that the affidavit in support of the certificate for securing the attendance of the California witnesses should have been considered by the court as filed in support of the motion for a continuance. Assuming this to be permissible, the question of the sufficiency of the affidavit remains to be determined.

The requirements for such an affidavit are thus stated in 17 CJS 262, Continuances § 94:

“The affidavit for a continuance asked for on the ground of absent evidence should set forth the substance of the testimony or evidence expected to be obtained, where this is possible, so that the adverse party may have an opportunity to admit that such evidence would be given and thus avoid the necessity for a continuance. The statement of facts should be clear, definite, and direct, and mere conclusions as to what the absent witnesses would testify are insufficient. * * *

“The affidavit must state the ground on which affiant bases his expectation that the absent witnesses, if present, would testify as stated therein.”

To the last sentence is cited Taylor v. Nelson, 139 Or 155, 5 P2d 707, 8 P2d 1089. That case and North American Securities Co. v. Cole, 61 Or 1, 118 P 1032, and Cole v. Willow River Company, 60 Or 594, 117 P 659, 118 P 176, 1030, support the text. The general rules found in CJS are also stated in 12 Am Jur 474, 475, Continuances §§ 34, 35.

The affidavit of Mr. Porter falls far short of these requirements. It does not state that either Tom Nicholson or Eugene Victor Blount, Jr., would, if called as witnesses, testify to anything, and it is not even possible to determine from the affidavit that their testimony would be favorable to the defendant. The instrument consists entirely of conclusions, and leaves one in the dark as to whether any testimony that either of these proposed witnesses might give would be material. It does not disclose any ground of the affiant’s belief that either of them would give material testimony. A showing of that kind would be particularly important as to Eugene Victor Blount, Jr., who was a four-year-old boy at the time of the trial. Under our statute children under ten years of age “who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly” are not competent witnesses. §3-103, Subd. 2, OCLA. No trial should be postponed for the purpose of procuring the testimony of so young a child in the absence of an affidavit by a person with knowledge of the facts concerning the child’s intelligence, understanding, and recollection. The affidavit should state facts such as would justify the court in finding prima facie that the child is a competent witness. There is nothing of this kind in Mr. Porter’s affidavit. It does not even disclose the age of the child.

These considerations apply with equal force to an affidavit in support of an application to secure the attendance of witnesses under the Uniform Act. Before issuing such a certificate the court must find that the person sought to be subpoenaed is a “material witness”. § 26-1817, OCLA. It is uniformly held that statutes which require a proper and timely showing of materiality of the testimony of witnesses subpoenaed at public expense are reasonable and harmonious to the terms of the constitutional guaranty of compulsory process, and that without compliance with such provisions the defendant cannot demand as a matter of right that the witnesses be subpoenaed. 70 CJ 37, Witnesses § 8; Palmer v. State, 165 Ala 129, 51 So 358; Pittman v. State, 51 Fla 94, 41 So 385, 8 LRA (ns) 509; State v. Pope, 78 S C 264, 58 SE 815; State v. Fouquette, supra; State v. Godard, 4 Ida 750, 44 P 643.

The requisite finding of materiality can only be made on the basis of an affidavit or other competent evidence setting forth the facts to which the proposed witness would testify. Cf. Application of Stamler, 111 NYS2d 313, 279 App Div 908. The materiality of the evidence must appear from those facts. The showing should be no less definite and direct than in the case of a motion for a continuance. For the reasons already stated the affidavit of Mr. Porter does not measure up to these requirements and is insufficient as a basis for the statutory finding. Even assuming, therefore, that the court had the asserted power to order the state to pay the fees and mileage of the California witnesses, it would not have been warranted in making such an order in this case. It was not warranted indeed in issuing the certificates at all, for on any construction of the statute the affidavit was insufficient.

We hold that under the Uniform Act no power is conferred upon the court to order the payment by the state of the fees and mileage of witnesses subpoenaed on behalf of the defendant in a criminal action, that in this case no constitutional right of the defendant was invaded, that the showing made in support of the application for certificates to secure the attendance of witnesses in California on behalf of the defendant was insufficient, and that no error was committed in denying the defendant’s motion for a continuance.

Por these reasons the judgment is affirmed.