# State Ex Rel. Gladden v. Lonergan

> Oregon Supreme Court · April 14, 1954 · 201 Or. 163

URL: https://www.frixlaw.com/law-library/cases/9619717

## Case

- **Full name:** STATE OF OREGON Ex Rel. GLADDEN v. LONERGAN Et Al.
- **Court:** Oregon Supreme Court
- **Decided:** April 14, 1954
- **Citations:** 201 Or. 163; 269 P.2d 491; 1954 Ore. LEXIS 217
- **Precedential status:** Published
- **Opinion:** Concurrence by Lusk
- **Judges:** Brand, Lusk, Tooze, Warner
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9619717

## Opinion text

Lusk, J.,
specially concurring.
I concur, but solely on the ground that ORS 44.230, *194 as attempted to be. applied in this case, is an unconstitutional infringement upon the right of an accused in a criminal prosecution to compulsory process. It is my opinion that the provision of Art I, § 11, of the Constitution, giving the accused “the right to meet the witnesses face to face” has no .bearing on the question presented for decision here. Concerning this provision it was said by Mr. Justice Robert S. Bean, speaking for the court in State v. Walton, 53 Or 557, 563 , 99 P 431 , 101 P 389 :
“* *■ * The Constitution of the United States, and of most states of the Union, contains similar provisions, and the general, if not the universal, holding of the courts is that their essential purpose is to secure to an accused the right of cross-examination, and if he has once enjoyed that right no constitutional privilege is violated by the. admission of the testimony of such a witness, who is dead or absent from a state, at a subsequent trial.”
To the same effect see State v. Von Klein, 71 Or 159, 168 , 142 P 549 ; State v. Meyers, 59 Or 537, 541 , 117 P 818 ; State v. Belding, 43 Or 95, 99 , 71 P 330 .
The comparable language of the Sixth Amendment of the Constitution of the United States is “to be confronted with the witnesses against him”. Most of the state constitutions also speak of the witnesses “against” the accused. See 5 Wigmore on Evidence (3d ed) 127 et seq. This court, as the cases I have cited show, has held that all these provisions have the common essential purpose of securing to an accused the right of cross-examination. Of course, no one would suggest that the makers of the Constitution intended to secure to an accused the right to cross-examine his own witnesses. The majority, therefore, calls attention to another and secondary purpose of the constitutional *195 guaranty, namely, the right of the accused to have the jury see the witness and judge his credibility by his demeanor upon the stand and his manner of testifying. This is an advantage “merely desirable” and which may be “dispensed with”. 5 Wigmore on Evidence (3d ed) 127, § 1396; it “must occasionally give way to considerations of public policy and the necessities of the case.” State v. Walton, supra, p. 564 . It is to be observed that the authorities just cited are speaking of the advantage to the accused of having the jury see the witnesses for the prosecution—not his own witnesses. The accused has no need of any other constitutional guaranty of the right to have his own witnesses seen and heard by the jury than the guaranty, also found in Art I, § 11, of the right “to have compulsory process for obtaining witnesses in his favor”. This means the right to invoke the aid of the law to compel personal attendance at the trial of witnesses within the jurisdiction of the court. Graham v. State, 50 Ark 161 , 6 SW 721 ; Williams v. State, 23 Ala App 297, 124 So 402; Freeland v. State, 34 Ala App 313, 40 So2d 339.
The question, therefore, is whether the legislature has the power to limit this constitutional right to compulsory process by legislation such as that found in ORS 44.230. Since a convicted felon is a competent witness in this state, the conflict between the statute and the Constitution seems to be clear. The attorney general argues, however, that, notwithstanding the conflict, the statute may be supported as a measure in the interest of the public safety. The brief says: “Every time a prisoner from the Oregon state penitentiary is removed under guard there is created a definite threat to the safety of the public because of the possibility of escape.” The same type of argument *196 was employed by the Supreme Court of Missouri in sustaining as constitutional, over a strong dissent, a similar statute in Ex parte Marmaduke, 91 Mo 228, 4 SW 91 , 60 Am Rep 250 (1886). But in the more recent case of State ex rel. Rudolph v. Ryan, 327 Mo 728, 38 SW2d 717 (1931), the court reconsidered the question, overruled the Marmaduke ease, and held that the statute, if applied so as to prevent an accused from subpoenaing a witness from the penitentiary, violated the compulsory process provision of the Missouri Constitution. The court said of its prior decision:
“In the majority opinion in that case we held that the criminal court was without authority to issue a writ of habeas corpus ad testificand,um to produce a prisoner under a sentence for a felony. In the main, we justified the ruling on the grounds of inconvenience and surmised interference with the control of the convicts in the penitentiary.' Obviously, those grounds do not justify the ruling.
“In the concurring opinion, the ruling was justified by reasoning that the power of the Legislature, to disqualify a convict as a witness, authorized it to prohibit his removal from the penitentiary to testify as a witness. This would be sound reasoning, if the Legislature had so disqualified convicts. It has not done so. On the contrary, disqualification without' exception was removed by the Legislature in 1879. And, by statutory authority, a convict’s deposition may be taken in the penitentiary. Section 3621, Rev. St. 1929. Indeed, it was not contended in the Marmaduke Case that the convict was disqualified. It follows that the majority and concurring opinions in said case are in conflict with the section of the Constitution which gives circuit courts jurisdiction over criminal cases. Furthermore, in that case the process for the production of the witness was at the instance of the defendant. Therefore said opinions are also in conflict with section 22, art. 2 of the Constitution which provides that ‘in *197 criminal prosecutions the accused shall have the right * * * to have process to compel the attendance of witnesses in his behalf.’ The majority and concurring opinions in that case should be and are overruled.”
This decision has the approval of Professor Wigmore. See 8 Wigmore on Evidence (3d ed) 111, note. The opinion is well-considered and is a correct interpretation of the constitutional guaranty of compulsory process.
Other courts have reached a contrary conclusion: Tiner v. State, 110 Ark 251 , 161 SW 195 ; Pirkle v. State, 31 Ala App 464, 18 So2d 694. The California cases are cited as support for the attorney general’s position; see, Willard v. Superior Court, 82 Cal 456, 22 P 1120 ; People v. Putman, 129 Cal 258, 61 P 961 ; People v. Willard, 92 Cal 482, 28 P 585 ; Ex parte Bagwell, 26 Cal2d 418, 79 P2d 395 ; but it is not entirely clear that these cases may be properly, so considered. In any event, they are distinguishable because of a provision in the compulsory process clause of the Constitution of California, which gives the legislature power to provide for the taking of depositions in criminal cases other than cases of homicide.
The. attorney general quotes from 28 RCL, Witnesses, 582 § 173, as follows: “The constitutional right of a defendant to compulsory process for the attendance of witnesses is not violated by a statute which makes his right to a production of a witness confined in prison dependent upon the discretion of the court.” This statement, while sound, carries no implication in favor of the validity of a statute which altogether deprives the accused of such right.
Courts have the inherent power to compel the attendance or production of witnesses. State ex rel. *198 Rudolph v. Ryan, supra. But it is one thing to attempt to deprive them of that power, quite a different thing to concede that a court has discretion to determine whether it is justified in ordering a person confined in prison to he brought to the courtroom to testify. At common law the writ of habeas corpus ad testificandum was issued for the production of such witnesses who were beyond the reach of an ordinary subpoena. This was a discretionary writ. Neufield v. United States, 118 F2d 375; State ex rel. Rudolph v. Ryan, supra; 8 Wigmore on Evidence (3d ed) 110; 1 Greenleaf on Evidence (16th ed) 473. Respecting it the Missouri court said in State ex rel. Rudolph v. Ryan, supra:
“* * * However, it must be understood that the writ is grantable in the discretion of the court. Abuse of the process should not be permitted. On the hearing of the petition for the writ, the court should require strict proof of the materiality of the testimony and the necessity of the attendance of the prisoner as a witness. If it appears that the application is in good faith and the testimony is material and important, the petition for the writ should be granted.”
In Willard v. Superior Court, supra, Chief Justice Beatty, discussing the guaranty of compulsory process in its relation to the problem of the production of witnesses from prison, said:
“I feel very sure, however, that it does not mean, and that it never was intended, that on the mere demand of a defendant in a criminal action, any convict, or any number of convicts, must be transported from the state prison to the place of trial, as an essential prerequisite to proceeding with the trial. It is not possible that the court or judge to whom application is made has no discretion to ex *199 amine the sufficiency of the grounds upon which it is based, and to deny it if in his opinion it ought to be denied.”
By ORS 34.310 every other writ of habeas corpus than the writ of habeas corpus ad subjiciendum is abolished. ORS 44.230, to the extent that it authorizes the removal of witnesses confined in prison, was no doubt intended to perform the function of the writ of habeas corpus ad testificandum. But, inasmuch as it prescribes no procedure for securing the removal of a convicted felon from the state penitentiary for the purpose of giving testimony in a criminal action, I should suppose that the court, in the exercise of its inherent power to compel the attendance of witnesses, would be guided by the same considerations which directed the discretion of the common law courts in determining whether or not to issue the writ of habeas corpus ad testificandum.
In the present case it appears that the circuit judge, being satisfied with the showing made in behalf of the application of the accused, has ordered the witness to be produced at the trial. The judge had discretion to make this order and hence the mandamus proceeding should be dismissed.
Warner, J., concurs in the foregoing opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9619717. Public record. Not legal advice.