State v. PrinceAnnotate this Case
154 S.E.2d 897 (1967)
270 N.C. 769
STATE v. Willie PRINCE, Jr.
Supreme Court of North Carolina.
June 20, 1967.
*898 T. Wade Bruton, Atty. Gen., and Ralph A. White, Jr., Staff Atty., Raleigh, for the State.
Carl V. Venters, Jacksonville, for defendant.
Defendant brings forward only two assignments of error: that the court erred (1) in admitting the transcript of the testimony which Sanderson gave at the former trial, and (2) in overruling his motion of nonsuit at the close of the State's evidence. He specifically abandoned his assignment of error based on his exception to the denial of his motion for nonsuit made at the close of all the evidence.
By introducing evidence after the denial of his motion for judgment of nonsuit made when the State had rested its case, defendant waived the motion for dismissal which he made prior to the introduction of his evidence. G.S. § 15-173. In no event, therefore, would defendant be entitled to have his motion for nonsuit considered only in the light of the State's evidence. State v. Earp, 196 N.C. 164, 145 S.E. 23. But neither the evidence for the State nor that of defendant has been included in the case on appeal."When the evidence adduced at the trial is not contained in the record, the appeal must be dismissed in the absence of error appearing upon the face of the record. Rule 19(4), Rules of Practice in the Supreme Court, 221 N.C. at page 556. State v. Griffin, 246 N.C. 680, 100 S.E.2d 49; State v. Powell, 238 N.C. 550, 78 S.E.2d 343; State v. Kirkland, 178 N.C. *899 810, 101 S.E. 560; State v. Tyson, 133 N.C. 692, 45 S.E. 838." State v. Womack, 251 N.C. 342, 343, 111 S.E.2d 332, 334.
Defendant's appeal must be dismissed, but we deem it appropriate to say his assignments disclose no error in the trial below. It is obvious that defendant's attempt to overturn his conviction is not based upon any lack of evidence to establish his guilt of the crime charged. His complaint is that the admission of the transcript of Sanderson's evidence at his first trial violated the rights guaranteed to him by the North Carolina Constitution, Article I, Section 11, and by the Sixth Amendment to the U.S. Constitution. The latter, which gives an accused the right "to be confronted with the winesses against him," is now held to have been made obligatory on the states by the Fourteenth Amendment. Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). The North Carolina Constitution, Article I, Section 11, gives every person charged with crime the right "to confront the accusers and witnesses with other testimony."
Always in a criminal action, "[t]he witness himself, if available, must be produced and testify de novo." State v. Cope, 240 N.C. 244, 249, 81 S.E.2d 773, 777. The constitutional right of confrontation, however, is not denied an accused by the introduction at a subsequent trial of the transcribed testimony given at a former trial of the same action by a witness who has since died, become insane, left the State permanently or for an indefinite absence, become incapacitated to testify in court as a result of a permanent or indefinitive illness, or absented himself by procurement of, or connivance with, the accused. The accuracy of the transcription, of course, must be attested and it must appear that the defendant had a reasonable opportunity to cross-examine the witness. State v. Ham, 224 N.C. 128, 29 S.E.2d 449; State v. Casey, 204 N.C. 411, 168 S.E. 512; State v. Maynard, 184 N.C. 653, 113 S.E. 682; State v. Behrman, 114 N.C. 797, 19 S.E. 220, 25 L.R.A. 449; Stansbury, N.C. Evidence § 145 (2d Ed., 1963); McCormick, Evidence § 231 (1954); 29 Am.Jur.2d, Evidence § 739 (1967); 5 Wigmore, Evidence §§ 1396, 1397 (3d Ed., 1940); Annot., Use in criminal case of testimony given on former trial, or preliminary examination, by witness not available at present trial, 15 A.L.R. 495; 79 A.L.R. 1392; 122 A.L.R. 425; 159 A.L.R. 1240. See also Settee v. Charlotte Electric Railway, 171 N.C. 440, 441-443, 88 S.E. 734, 735-36; Pointer v. State of Texas, supra, 380 U.S. at 407, 85 S. Ct. at 1069, 13 L. Ed. 2d at 928.
The testimony of Sanderson, to which defendant objected, was taken in open court, in the presence of the parties and witnesses, and under the supervision of the trial judge. Defendant had the opportunity to cross-examine the witness, and his counsel fully availed himself of the right. The court reporter who took and transcribed the evidence attested to its accuracy, which defendant does not controvert. At the time of the second trial, Sanderson, a member of the U.S. Marine Corps who had been temporarily stationed at Camp Lejeune when the alleged crime was committed and the first trial held, was outside the borders of the United States. He was in Asia, fighting his country's battle in Vietnam. In all probability, he was never domiciled in North Carolina, butif he werehis absence from the State at the time of the second trial could not have been considered a mere temporary absence. His return was contingent and uncertain. In any event, he would be away for a prolonged and indefinite period. For all practical purposes he could fairly be considered a nonresident, beyond the jurisdiction of the court. Defendant was in jail in default of bond; the State was required to try him. There was no error in admitting the transcript of Sanderson's testimony at the first trial, which was prematurely concluded at the instance of defendant.