The opinion
TATE, Justice
(dissenting).
I note an additional reason why the autopsy report was improperly admitted, since no continuance was given to make the coroner subject to cross-examination on the substance of this ex parte statement.
The Confrontation Clauses of the federal constitution, contained in the Sixth Amendment, and of our state constitution, Article I, Section 9, guarantee to the accused in criminal prosecutions the right to be confronted with the witnesses against him. The defendant’s objections to the admission of the autopsy report and to the denial of a continuance were in part grounded on the denial to him of his rights of cross-examination and confrontation, urged also as a denial of due process. See Bills of Exceptions Nos. 16 and 22, incorporating objections urged at Tr. 329, 331, and 347.
While this ground for reversal was not briefed before this court, nevertheless the bills perfected, the objections made to the trial court, and the type of prejudice complained of squarely present this court with the question.
The right of confrontation is designed, inter alia, to afford the accused the right to cross-examination and to jury-evaluation of the credibility of opposing witnessses. California v. Green, 399 U.S. 149 , 90 S.Ct. 1930, 1935 , 26 L.Ed.2d 489 (1970). More important, perhaps, it was designed to end the abuse of conviction by ex parte out-of-court affidavit or statement. California v. Green at 90 S.Ct. 1934 -1935; Note, Right to Confrontation, 113 U. of Pa.L.Rev. 741, 742-43 (1965).
This instance presents a classic case of the (mis) use of an ex parte governmental report to convict an accused, in direct violation of the Confrontation Clauses of the state and federal constitutions.
For this reason, in addition to those previously set forth, I respectfully dissent from the denial of a rehearing. I am authorized to state that BARHAM J., joins in this dissent.