#### STATE v. ROBERT W. MAYNARD and WALTER McGEHEE.

(Filed 4 October, 1922.)

1. Evidence — Criminal Law — Preliminary Hearings — Trials—Witnesses— Testimony as to Evidence at Former Hearing — Common Law.

Under the common-law rule, where a witness in a criminal action on the preliminary trial in a court having jurisdiction, has been examined by the State under oath, in the presence of the defendant, to whom the right to cross-examine has been accorded, and being bound over to the Superior Court, it has been properly made to appear that his presence had wrongfully been prevented at the trial by the act of procurement of the defendant, it is competent, at the second trial, tc show, by the testimony of another witness, that he was present at the preliminary trial, and to his own knowledge the absent witness had there sworn to a certain state of facts relevant to the inquiry.

2. Same — Stenographer’s Notes.

In the above case the stenographer’s transcribed notes, taken at the preliminary trial of a criminal action, are competent evidence on the second hearing of what a witness had testified on the former one, when the stenographer, as a witness, has testified that his notes are substantially correct; and they come within the common-law rule as to the admissibility of evidence of this character.

3. Same — Constitutional Law — Right of Accused.

The common-law rule of evidence, allowing, upon the second trial of a criminal action, testimony of a witness of the evidence given by a witness on the preliminary trial, under the conditions specified, does not deprive the defendant of his constitutional right to confront his accuser and his witnesses, Const., Art. I, sec. 11, this right having already been accorded him on the preliminary hearing.

4. Evidence — Criminal Law — Common-law Rule — Preliminary Hearings— Statutes.

Our various statutes relating to the introduction of testimony at the second trial of evidence introduced in the preliminary hearing of a criminal action does not affect the common-law rule, but it is an extension of *654its principle, making it only necessary when the statutory provisions as to the making of the written record, its correction, signature by the witness, etc., have been complied with, to sufficiently identify the record for its admission as evidence upon the second trial. C. S., 4560, 4563, 4572.

5. Evidence — Criminal Law — Preliminary Hearings — Trials—Procuring Absence of Witness — Questions for Court — Questions for Jury.

The findings of the trial judge, in his sound discretion, and upon sufficient evidence, that the defendant had wrongfully procured the absence of a witness at the second hearing, whose evidence on the preliminary hearing was permitted to be testified to by another witness is conclusive of this question on appeal, when this discretion has not been abused by him; and a requested instruction that makes this finding a question for the jury, is properly refused.

6. Appeal and Error — Instructions—Harmless Error — Criminal haw— Trials.

Where two defendants are on trial for the breaking into and stealing from a store at night, and there is evidence of the admission of one of them that he, with the other, was in an automobile in front of the store on the night in question, and the court has given the requested instruction that one of them should not be bound by the admission of the other, it is harmless error for indefiniteness as to time and place, for the judge to qualify the requested instruction by adding, “unless the circumstances go to show that they were together that night,” there being plenary evidence that both defendants were then acting in pursuance of the unlawful design, and the one who admitted the fact was dominated by the one who excepted to the Instruction.

Appeal by defendant from Allen, J., at June Term, 1922, of YaNCE.

Defendants, Robert Maynard and Walter McGehee, with two others, Guy Barnes and Raymond Taylor, were indicted for felonious breaking into the store of the prosecutors, A. J. and O. S. Smith, with intent to steal, etc. Second, for stealing a number of articles from said storehouse, and with a count in the bill for receiving the articles knowing that they were so stolen, etc. Guy Barnes having made his escape from prison, and being at the time a fugitive from justice, and Raymond Taylor being absent, the first named defendants only were on trial.

There was evidence on the part of the State tending to show that 'on the night of 22 March, 1922, the store of the prosecutors was broken into and several articles of the property described in the bill stolen therefrom, and that the four defendants named in the bill were guilty parties. It further appeared that-in May, 1922, at a preliminary trial before the recorder’s court, defendants being present, Guy Barnes having been duly sworn, testified as a witness, defendants Maynard and McGehee being present, and that personally and by counsel said Barnes was cross-examined in behalf of the defendants now on trial. That said Barnes gave in detail the doings of the four defendants named, on the night the store was robbed, stating, among other things, that the four were in *655McGehee’s car, and went to one Manning’s, where they procured an acetylene torch and some cutting points, two of them saying it was their intent to rob the bank, but being persuaded from this enterprise by Barnes on the ground that it was beyond their skill and intelligence, they rode in the car to several points in the county, and finally, about four a. m. they broke into the store of the prosecutors, and several articles were stolen. There was much other evidence tending to support the account of the witness Barnes, identifying the car and the defendants, who were met at different places during the night, and that the occupants of this car were the persons who committed the robbery. It was shown that this testimony of Barnes was given under oath after he had been duly warned of his rights, and that defendants now on trial had subjected him to cross-examination. That the said evidence was taken down by a stenographer, who was first duly sworn, and who had preserved his notes and transcribed same. It appeared that at the close of the preliminary hearing before the recorder, the defendants were bound over to Superior Court, the two defendants on trial giving bond, and Barnes being committed to jail.

There was evidence offered on a preliminary inquiry to the effect that some time before the trial Barnes had escaped from custody and was now a fugitive from justice; and that this escape had been brought about by the aid and procurement of the defendants now on trial, and on hearing the evidence, the court so found. The State then introduced the stenographer, who, after being duly sworn, testified that he took the stenographic notes of Barnes’ evidence on the preliminary investigation; that same was taken correctly, and had been accurately transcribed by him, and he had the notes with him, and by the aid of the notes he could give the testimony of Barnei as delivered on the preliminary hearing.

The court having found, as stated, on a preliminary inquiry, that the escape and absence of Barnes was by the aid and procurement of present defendants, allowed the stenographer to state to the jury the evidence of Barnes before the recorder, to which ruling defendants excepted. In connection with this ruling, the stenographer further stated that his notes of the evidence were not read over to Barnes, nor signed by him at the close of his evidence, nor was a copy of same filed with the clerk.

In apt time, defendants, in writing, asked the court to charge the jury as follows: “It is a principle of law that persons charged with the commission of crime are entitled to be confronted by the witnesses, who shall be examined in the presence of the jury and the parties. This prosecution depends largely upon the testimony of Guy Barnes given before the recorder of Yance County, given upon the preliminary hearing of this case, as stated by the witness Oliver. This testimony is not admissible, and ought not to be considered by you against the defendant, *656unless it shall appear to you from the evidence that Barnes is absent by the inducement or other act of the defendant.” Prayer refused, and defendants excepted.

There was verdict of guilty against both defendants, judgment, and defendant Maynard excepted and appealed.

Attorney-General Manning and, Assistant Attorney-General Nash for the State.

Jasper B. Hieles and Thomas M. Pittman for defendant.

HoKE, J.

Defendant Maynard, who alone appeals, objects to the validity of this conviction on account, chiefly, of the admission of the testimony of the stenographer by which the evidence of the accomplice, Barnes, was placed before the jury, and on the ground: (1) that he was not properly confronted with the accusing witnesses; (2) that the evidence of said witness was not completed, attested, or filed as required by the statute in order to a proper reception of such evidence.

In regard to the first position, it is a recognized principle of trials at common law that where, in a judicial proceedings before a court having power to compel the attendance of witnesses, administer oaths, and hear evidence pertinent to the inquiry, a witness has given his evidence and the defendants are present and have the right and have been afforded opportunity to cross-examine the witness, such testimony, when properly attested and verified, may be introduced and used on a second trial of the cause against said defendants, where the witness is since dead, or has become hopelessly or permanently insane, or is wrongfully absent from the trial by the acts and procurement of the defendants. And by the weight of authority when the witness has departed from the jurisdiction of the court and become permanently a nonresident. S. v. Bridgers, 87 N. C., 562; S. v. Thomas, 64 N. C., 75; S. v. Valentine, 29 N. C., 225; Mattox v. U. S., 156 U. S., 237-242-244; Reynolds v. U. S., 98 U. S., 145; People v. Elliott, 172 N. Y., 146; Commonwealth v. Richards, 35 Mass., 434; State v. John Nelson, 68 Kansas, 556; Trial of Lord Morley, 6 Howell State Trials, 770.

These authorities proceed upon the principle fully approved with us that in the cases specified, the right and privilege of a defendant in a criminal case to confront the accuser and his witnesses, as contained in Art. I, sec. 11, of our Constitution, is fully accorded by the opportunity given to meet and cross-examine them at the former trial, and that the position referred to in no way offends against the constitutional guarantee.

As to the second ground of this objection, our legislation as to these preliminary examinations appearing in 0. S., ch. 83, art. 1, sec. 4560, *657provides that “the evidence given by the several witnesses examined shall be reduced to writing by the magistrate, or under his direction, and shall be signed by the witnesses respectively, etc.,” and in section 4563: “That the answers of a prisoner shall be reduced to writing. They shall be read to the prisoner, who may correct or add to them, and when made conformable to what he declares is the truth, they shall be certified and signed by the magistrate.” And in section 4572: “That all examinations had pursuant to the provisions of this chapter shall be certified by the magistrate, taking the same to the court at which the witnesses are bound to appear, within twenty days after taking of the same, etc., and the examinations taken and subscribed as herein prescribed may be used as evidence before the grand jury, and on the trial of the accused, provided he was present at the taking thereof, and had opportunity to hear the same and to cross-examine deposing witnesses, and if such witness be dead or so ill as not to be able to travel, or by procurement or connivance of the defendant has removed from the State, or is of unsound mind.”

It will be noted that this examination was never either subscribed or certified, nor was it read over to the witness Barnes or approved by him, said Barnes being then a defendant, and we concur in the view of defendant’s counsel that the stenographer’s notes do not comply or come within the provisions of the statute. But a proper perusal of this legislation will disclose that the same is in extension of the common-law principle which we are considering, that its purpose was to make these preliminary examinations, when properly taken, certified, and filed, in the nature of an official record, to be read in evidence on mere identification, and that it does not and was not intended to restrict or trench upon the common-law principle that evidence of this kind, when repeated by a witness under a proper oath, and who can and does swear that his statements contain the substance of the testimony as given by the dead or absent witness, shall be received in evidence on the second trial. And well considered authority is to the effect that stenographers’ notes, when the stenographer who took them goes on the stand and swears that they are accurate and correctly portray the evidence as given by the witness, come well within the principle.

Speaking to this question, in the case of Mattox v. U. S., supra, at p. 244, Associate Justice Brown said: “That all the authorities hold that a copy of stenographic report of his entire former testimony, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of the deceased witness, is competent evidence of what he said.” And the principle is approved by us in Settee v. R. R., 171 N. C., 440. In that case it was held, among other things, as follows: “The testimony of a witness, stenographically taken *658at a former trial, wbo is absent from tbe State under sucb circumstances tbat bis return is merely contingent or conjectural, may be received as evidence on a subsequent trial of tbe same cause of action wben its correctness is testified to by tbe official stenographer wbo took and transcribed it, and there is no suggestion tbat tbe record thereof was not full and entirely accurate. As to whether this will apply wben tbe witness is temporarily absent, qucsre

Defendant excepts further to tbe refusal of tbe court to give bis special prayer for instructions, but such an objection cannot for a moment be sustained. Tbe prayer, as shown above, embodies tbe proposition, in effect, tbat although tbe court on a preliminary bearing and with ample evidence in support of tbe position bad found tbat tbe witness Barnes was absent by procurement of tbe defendant, tbat tbe evidence of tbe witness is inadmissible, and should not be considered by tbe jury, unless they should find from tbe evidence tbat Barnes is absent by tbe inducement or other act of defendant. And all tbe authorities on tbe subject so far as examined are to tbe effect tbat this question of admitting tbe evidence and tbe pertinent findings preliminary thereto, are for tbe courts and not for tbe jury; tbat they are referred primarily to tbe sound discretion of tbe trial judge, and bis action thereon will not be disturbed on exception or appeal unless there has been manifest abuse of sucb discretion. Reynolds v. U. S., p. 145, supra; State v. Wiggins, 50 La. Ann., 330; People v. Bruno Lewandowski, 143 Cal., 574; Rex v. Stephenson, 9th Cox Cr. App., 156.

In tbe Reynolds case, supra, Chief Justice Waite, speaking to tbe question, said: “Sucb being tbe rule, tbe question becomes practically one of fact, to be settled as a preliminary to tbe admission of secondary evidence. In this respect it is like tbe preliminary question of tbe proof of loss of a written instrument before secondary evidence of tbe contents of tbe instrument can be admitted. In Lord Money’s case, supra, it would seem to have been considered a question for tbe trial court alone, and not subject to review on error or appeal; but without deeming it necessary in this case to go so far as tbat, we have no hesitation in saying tbat tbe finding of tbe court below is at least to have tbe effect of tbe verdict of a jury upon a question of fact, and should not be disturbed unless tbe error is manifest.” Tbe objection, therefore, is overruled.

Again, on tbe trial, one of tbe prosecutor’s witnesses bad testified that McGehee, at tbe preliminary trial in Henderson, bad made tbe statement and sworn to it tbat be, McGehee, bad been in tbe front of tbe store tbat was broken into, and counsel for appellant requested tbe court to instruct tbe jury tbat tbe statement made by McGehee could not be considered as against Maynard. Tbe court gave tbe instruction with the qualification “unless tbe circumstances go to show tbat they were together tbat night.” *659Tbis statement of tbe witness, as it appears in tbe record, is so indefinite, giving neither time nor circumstance, that tbe statement itself, and anything that concerns it, might well be disregarded — but conceding that tbe statement referred to such time as would make it a pertinent circumstance, tbe entire evidence tended to show that tbe parties, McG-ehee and Maynard, were together that night, seen at different places, and evidently engaged in a common purpose in which Maynard appeared to be a leader, and McGehee running the car they were using, Ms own car. The ear that had been at the store was very well identified by the peculiarity of the marks made by two of its wheels on the ground. It was tracked into the Perry plantation, and in the early forenoon after the robbery, coming out of the Perry plantation, at a point where it had stalled, and both of the present defendants trying to get it up a hill. And this qualification of his Honor, even if technically erroneous, was of such slight significance that it could have had no appreciable effect on the verdict, and should not be held for reversible error. In Powell v. R. R., 178 N. C., 243-248, the Court, in reference to some immaterial objection, said: “This cause requiring much time and work, has been fully and carefully tried with the assistance of competent, alert, and diligent counsel on both sides, the determinative issues have been fairly decided, and the result of the hearing should not be disturbed unless it appears that appellant’s defense has been in some way prejudiced.” And further: “In a well considered opinion by Associate Justice Walker, in Brewer v. Ring, 177 N. C., 476, it was said, 'Courts do not lightly grant reversals or set aside verdicts on grounds which show the alleged error to be harmless, or where the appellant could have sustained no injury from it. There should be something like a practical treatment of a motion to reverse, and it should not be granted except to subserve the ends of substantial justice,’ citing Hilliard on New Trials (2 ed.), secs. 1-7.”

On careful consideration, we are of opinion that no reversible error appears in the record, and the judgment of the trial court is affirmed.

No error.