State v. Woods

81 P. 184, 71 Kan. 658, 1905 Kan. LEXIS 204

• Court: Supreme Court of Kansas
• Decided: June 10, 1905
• Docket: No. 14,350
• Status: Published

Opinion

The opinion of the court was delivered by

Greene, J.:

The appellant was convicted of criminal libel in the district court of Sumner county. Upon appeal he contends that the trial court erred in permitting the state to introduce incompetent and prejudicial evidence, and in giving misleading instructions. Under the views entertained by the court the case must be reversed and remanded, which makes it unnecessary to pass on some of the alleged errors.

The state was permitted, over the objection of appellant, to read to the jury a transcript of the testimony of Cleo D. Burnette, given in a civil proceeding to foreclose a mortgage in which Randolph was plaintiff and McCauley defendant. It appears that the state procured the court stenographer to make a transcript of this witness’s testimony in that suit, and, after identification, it was read as the deposition of the witness, over the objection of appellant. There is no theory under which this testimony could be competent, over objection. The strongest reason urged for its admission is that it was material. That makes it prejudicial, if incompetent. The accused in a criminal prosecution has guaranteed to him by the constitution the right to meet the witnesses against him face to face. In The State v. Tomblin, 57 Kan. 841, 48 Pac., 144, it was held error to admit, over objection by the accused, the deposition of an important witness, taken out of the state, when the defendant was not personally present, notwithstanding the deposition was taken on application of defendant, with interrogatories proposed by his counsel and cross-interrogatories proposed by counsel for the state.

For the error thus committed the judgment is reversed, and the cause remanded.

All the Justices concurring.