Jones v. State , 205 Ark. 806 ( 1943 )

It is my opinion that the trial court clearly abused its discretion in refusing to grant appellant's motion for permission to take the deposition of the witness, Herman Ogburn, whom it was alleged was absent from the state as a member of the armed forces. This motion was in proper form and should have been granted.

Appellant was charged with a felony, convicted, and adjudged to serve one year in the state penitentiary. The information upon which he was charged was filed November 20, 1942. Within six days thereafter he procured counsel and caused a subpoena to be issued, and placed in the hands of the sheriff, for the witness, Ogburn. This subpoena was returned by the sheriff November 30, 1942, with the notation that witness could not be found. On this same day, November 30, appellant moved for a continuance, which the court promptly denied; whereupon, appellant filed motion to be permitted to take the deposition of Ogburn, which the court also denied, and the appellant was forced to trial on that same day without benefit of Ogburn's testimony which was material to his defense and in no sense cumulative.

Appellant alleged that Ogburn would testify that he was present when Henry Lollis, the admitted thief, informed the appellant that he was going to move and asked this appellant to haul and store some things (including the tires in question) for him, and said that the things were his own property, and did not intimate that the tires were stolen. It was further alleged that Ogburn was the only witness who could testify on appellant's behalf as to this conversation.

That this testimony was material is apparent. It seems to me, on the record before us, that no argument is required to convince anyone that appellant has certainly exercised all the diligence required by any reasonable man in his efforts to procure the testimony of Ogburn.

The Constitution of this state guarantees to everyone charged with crime the right to have compulsory process to secure the attendance of witnesses in his behalf. Section 10, art. 2, provides, "in all criminal prosecutions the accused shall have . . . compulsory process for obtaining witnesses in his favor and to be heard by himself and for counsel." In 22 C.J.S. 486, the textwriter says: "Since a person charged with crime is entitled to a reasonable opportunity to procure witnesses and evidence for his defense, it is the general rule that the absence of a material witness or evidence constitutes ground for a continuance in a proper case; and the right to delay until witnesses may be had at the trial also follows from the constitutional right of accused to compulsory process to secure the attendance of witnesses."

Section 3946, Pope's Digest, provides: "The court, or judge in vacation, or a judge of the Supreme Court, may authorize a defendant to take the deposition of a material witness where there are reasonable grounds to apprehend that, before the trial, the witness will die or become mentally incapable of giving testimony, or physically incapable of attending the trial, or becoming a nonresident of the state." And 3949 provides: "Upon the death of the witness, or his becoming mentally incapable of testifying, or physically incapable of attending trial, or giving testimony, or a non-resident of the state and absent therefrom so that he could not be summoned, the deposition taken in pursuance of such order may be read as evidence; provided the ground of non-residence and absence from the state shall not be sufficient unless the defendant makes an affidavit that he has tried in good faith to procure the attendance of, such witness and been unable to do so."

In McDonald v. State, 155 Ark. 142, 244 S.W. 20, this court said: "In Giboney v. Rogers, 32 Ark. 462, the court held that the above provision of the criminal code, which was then digested as 1819 of Gantt's Digest, and which is the same as 3112, Crawford Moses' Digest, was not intended `to so alter or amend the law as it then stood in Gould's Digest, supra, to prohibit the taking of depositions out of the state in criminal cases and to make a distinction in that regard between them and civil cases."

It must be remembered, too, that appellant, on the very day that the sheriff made his return, sought permission to obtain the testimony of the absent witness by deposition. There is nothing in this record that would indicate that this deposition could not have been taken and returned within the space of a few days, and certainly during the term. No harm could possibly have resulted to anyone by this short delay. Surely one's liberty should have thrown around it all the safeguards that the constitution and the statutes provide. It seems to me that no clearer case wherein there is a more apparent abuse of discretion, on the part of the court, could be shown than in that presented here. Accordingly, I think the judgment should be reversed and the cause remanded for a new trial.

Mr. Justice ROBINS concurs in this dissent.