vious decisions and the practice which has long prevailed, the question was proper and should have been answered. Pleasants v. State, 15 Ark. 651; Mansfield, Dig. § 2902; Snow v. Grace, 29 Ark. 136. 241. When Declarations Made out of Court are Admissible.-Proof of declarations made by a witness out of court, in corroboration of testimony given by him on the trial of the cause, is as a general, and almost universal rule, inadmissible. It seems, however, that to this rule there are exceptions, and that under special circumstances such proof will be received; as where the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. So in contradiction of evidence tending to show that the account of the transaction given by the witness, is a fabrication of late date, it may be shown that the same account was given by him before its ultimate effect and operation arising from a change of circumstances could have been foreseen. Robb v. Hackley, 23 Wend. 50. § 242. Interpreter may be Impeached.-Inherent power is vested in the courts to resort to the aid of a skilled interpreter or professional linguist in all cases where it is necessary to translate the evidence to the court, counsel, jury, or parties interested. Skaggs v. State, 108 Ind. 53; Thomason v. Territory, 4 N. M. 150; People v. Ramirez, 56 Cal. 533, 38 Am. Rep. 73. The accuracy of the translation may be controverted and in rebuttal the interpreter may be impeached. Indeed the value of his entire rendering of the evidence is for the exclusive determination of the jury. Skaggs v. State, supra; Sohnier v. People, 23 Ill. 17. CHAPTER XXXIII. DEPOSITIONS IN CRIMINAL CASES. § 243. Only Admitted by Force of Statute. 244. Exposition of this Subject by New York Court of Appeals. a. Extreme Importance of the Right. b. Views of Distinguished Judges. 245. New York Criminal Code Provisions Stated. 247. Examination of Witnesses Conditionally for the Accused. 243. Only Admitted by Force of Statute.-In criminal cases in the United States, it has been held that depositions cannot be used without the consent of the defendant, and the Constitution of the United States declares that the accused shall enjoy the right to be confronted with the witnesses against him, and this provision has been incorporated in the constitutions of most of the states, or recognized as statutory law. In some states provision is made for the taking of depositions by the accused. Greenleaf's opinion is, that no deposition is admissible by force of English or American statutes, unless taken wholly in the prisoner's presence, in order to afford him the opportunity to crossexamine the witnesses, under the constitutional provisions before mentioned; nor even then, except as secondary evidence, the deponent being dead, or out of the jurisdiction, or to impeach his testimony given orally at the trial. And it is stated, as a general rule, that depositions are in no case admissible in criminal proceedings, unless by force of express statutes, or possibly by consent of the prisoner in open court. Even in the case of informations before a justice of the peace, numerous authorities hold that they should be taken in the presence of the prisoner. Weeks, Depositions, § 557, citing 3 Greenl. Ev. § 11; McLane v. State, 4 Ga. 335; Rex v. Thatcher, T. Jones, 53; 3 T. R. 722; Sills v. Brown, 9 Car. & P. 601; Rex v. Grady, 7 Car. & P. 650; Rex v. Coveney, 7 Car. & P. 667; Bostick v. State, 3 Humph. 344; State v. Bowen, 4 McCord, L. 254; State v. Valentine, 29 N. C. 225; Dominges v. State, 7 Smedes & M. 475; Rex v. Paine, 5 Mod. 163; Rex v. Eriswell, 3 T. R. 722; Rex v. Errington, 2 Lew. C. C. 142; Rex v. Woodcock, 1 East, P. C. 356; Rex v. Smith, 2 Stark. 208. But see Reg. v. Walsh, 5 Cox, C. C. 115; U. S. Const. 6th Amend.; Ohio Const. art. 1, § 10; Conn. Const. art. 1, § 9. There is no constitutional inhibition against the state allowing defendants in criminal cases to take and use the depositions of witnesses in their behalf. The constitution entitles the accused, in criminal and penal cases, to meet his accusers face to face, and to be confronted with the witnesses against him. The state, therefore, cannot authorize the taking and using of depositions of witnesses against him, but he may use the depositions of witnesses in his behalf under any state of case that the legislature may allow. Kaelin v. Com. 84 Ky. 354. In criminal prosecutions in this country depositions are rarely employed; but where the accused has had an opportunity to crossexamine the witness whose deposition it is thought to introduce, he has no reason to complain that the constitutional guaranty has been violated. Such instance arises where, in a former trial, the accused was confronted with the witness, or on preliminary hearings before a coroner or committing magistrate. And it seems that notes taken on such occasion, are admissible in evidence where the witness has since died or is beyond the jurisdiction of the court. See Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740; State v. Chambers, 43 La. Ann. 1108. The right to a deposition in criminal cases is exclusively that of the accused, and by order of the court they may be taken in the manner prescribed for taking depositions in civil cases after due notice to the district attorney. Tennessee Code, § 6223. If the witness be a prisoner, an order for his examination in the prison upon deposition, or for his temporary removal and production, before a court or officer, for the purpose of being orally examined, may be made as follows: 1. By the court or judge thereof in which the action, suit, or proceeding is pending, unless it be a court of a justice of the peace; 2. By any judge of a court of record, when the action, suit, or proceeding is pending in a justice's court, or when the witness's deposition, affidavit, or oral examination is required before a judge or other person out of court; 3. Such order shall only be made upon the affidavit of the party desiring the order, or some one on his behalf, showing the nature of the action, suit, or proceeding, the testimony expected from the witness, and its materiality; 4. If the witness be imprisoned in the county where the action, suit, or proceeding is pending, and for a cause other than a sentence for felony, his production may be required; in all other cases, his examination shall be taken by deposition. Hill, Ann. Law of Oregon, § 801. Depositions can only be admitted in criminal cases under local statute, and in submission to the constitutional guarantees as to the personal examination of witnesses. Whart. Crim. Ev. § 306; People v. Murphy, 1 N. Y. Crim. Rep. 102; People v. Gannon, 61 Cal. 476. Under statutes or by consent of the prosecuting officer, evidence may be taken for the defendant by ordinary deposition. Bishop, Crim. Proc. (3d ed.) § 1206. See People v. Restell, 3 Hill, 289. But in order to render such a deposition competent evidence, the examination must in general be in the presence of the accused, so that he may know the precise words which the witness uses, and observe throughout his manner of testifying. If desired by the accused, he has a right that his counsel shall be present during the examination. A reasonable time after the arrest should be allowed for the purpose of employing counsel, where the accused requests it, and if the magistrate refuse this, the deposition will not be evidence. The answers of the witness should be on oath, and hence, instead of taking the examination first and then swearing him to the truth of the statement, he should be sworn before the examination commences. The deposition should be taken as nearly as possible in the exact words of the witness. People v. Restell, supra. It is essential that the accused should have a full and fair opportunity of cross-examining; and if this be denied him, the deposition will not be competent evidence. The deposition will be invalid, moreover, if the oath administered to the witness do not extend to his answers to questions put; e. g., where it is merely to the truth of a statement previously drawn up. People v. Restell, supra. According to the provisions of the California Penal Code, the right to take the deposition of a witness on behalf of the people, in a criminal case, arises out of the fact that the witness is unable to procure sureties for his appearance on the trial; and that fact must be satisfactorily established by the examination on oath of the witness himself, or of some other person. When the fact has been judicially ascertained, the right to take the deposition of the witness may be put in motion. But the examination of the witness must be had in the presence of the defendant, or after due notice to him, and "must be conducted in the same manner as the examination of a witness before a committing magistrate is required by the penal code to be conducted." Taking the testimony of a witness on behalf of the people in a criminal case by deposition, is an exception to the rule, which entitles the defendant in a criminal action to be confronted with the witnesses against him in the presence of the court, and every substantial requirement of the law which authorizes it must be observed. Any real departure from the course prescribed for the taking of the deposition renders the deposition itself objectionable. People v. Mitchell, 64 Cal. 85; People v. Morine, 54 Cal. 575; Williams v. Chadbourne, 6 Cal. 559; People v. Chung Ah Chue, 57 Cal. 567; Am. & Eng. Enc. Law, title Depositions, subd. 15, note. . has a right "In all criminal prosecutions the accused . to be confronted by the witness against him." The accused was confronted by the witness on the former trial, and he had an opportunity of making a cross-examination, that satisfies the requirements of the statutes. The right secured to the accused, it is to be observed, is, "to be confronted with the witnesses against him." This language does not require that the accused shall, in all cases, be confronted with the witnesses against him upon a pending trial of the indictment. The court have held that the statute is satisfied, in cases of necessity, if the accused has been once confronted by the witness against him in any stage of the proceedings upon the same accusation and has had an opportunity of a cross-examination by himself or by counsel in his behalf. People v. Newman, 5 Hill, 295. See Crary v. Sprague, 12 Wend. 41, 27 Am. Dec. 110; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740. This provision has no application to criminal trials in the state courts for a violation of state laws. This right secured to the accused is limited in its application to citizens of the United States on trial in the Federal courts charged with a violation of the Constitution of the United States or of the laws of Congress. |