State v. Lee

33 P. 690, 13 Mont. 248, 1893 Mont. LEXIS 29

Opinion

DeWitt, J.

Section 16, article III, of the constitution is in part as follows: “In all criminal prosecutions accused shall have the right to appear and defend/in pern and by counsel; to demand the nature and cause the,,/Accusation; to meet the witnesses against him face to/? .

We find in the Criminal Practice Act the/folIoWing provisions: “Sec. 9. In a criminal action ,the defendant is entitled: .... 3. To produce witnesses in bis behalij and to be confronted with witnesses against lian, in the presence of the court.”

In this case this constitutional and statutory right of defendant was wholly denied.

As appears in the statement of the case above, material evidence was produced against the defendant, not from the mouth of the witness of the facts (which witness was out of the jurisdiction), but from the mouth of a witness who purported to relate his general recollection of what the witness of the facts had testified on the preliminary hearing before the committing magistrate. The provisions of the constitution and the statute, above cited, seem to have been overlooked. (Const., art. Ill, § 16; Crim Prac. Act, § 9.)

The state makes no appearance, and files no brief in this case.

Among other authorities presented by appellant, we note as particularly in point as to their facts, the following: Bergen v. People, 17 Ill. 426; 65 Am. Dec. 672; United States v. Angell, 11 Fed. Rep. 34.

The judgment is reversed, and the case is remanded fora new trial.

Reversed.

Pemberton, C. J., and Harwood, J., concur.