Lindsay v. State

Thompson, J., delivered the opinion of the Court. Richard Wayne Lindsay, the appellant, complains of convictions for murder in the second degree and assault against a second person in a trial in the Criminal Court of Baltimore, Judge Meyer M. Cardin presiding with a jury. The grounds on which this case must he reversed, do not require a statement of the facts of the case. The testimony of Willie Boswell, an eye-witness to the killing, taken at a former trial of the case, was read into the evidence by the Assistant State’s Attorney over the objections of Lindsay.

The admission of such testimony is, of course, quite proper if it is shown that the witness is dead, insane, or beyond the jurisdiction of the court, or on diligent inquiry cannot be located, or that some other circumstance exists which shows that the witness cannot he procured as a witness at the second trial, Contee v. State, 229 Md. 486, 184 A. 2d 823 , cert. denied. 374 U. S. 841 , 83 S. Ct. 1895 , 10 L. Ed. 2d 1062 . There must, however, be sufficient proof of the unavailability of the witness, or, in other words, a proper predicate must be established. Bryant v. State, 207 Md. 565 , 115 A. 2d 502 , Hendrix v. State, 200 ³³² Md. 380, 90 A. 2d 186 , 2 Wharton’s Criminal Evidence, §§ 487-89 (12th ed.) 159 A.L.R. 1246 . 1 The only evidence offered here to prove the unavailability of the witness was the unsworn statement of the Assistant State’s Attorney, the return of a summons, “non esf’ by the Sheriff of Baltimore City and hearsay testimony by a police officer that other officers had attempted to locate Boswell without success. Neither the testimony of the officers making the investigation nor the records of the police department were offered into evidence.

On the basis of the authorities heretofore cited and Bielski v. Rising, 163 Md. 492 , 163 A. 207 we hold that there was an insufficient predicate laid to support the introduction of Willie Boswell’s testimony, cf. Britton v. State, 2 Md. App. 285. The testimony of Dr. C. Thomas Flotte at a prior trial, was also likewise admitted into evidence to prove the extent of injuries in the assault case. The only proof of predicate here was the offering of a letter by the Assistant State’s Attorney from the doctor in which the doctor stated he would be in Florida until after December 8, 1966. His testimony was received by the trial court on December 7, 1966.

No summons had been issued for the current trial although he had been served with a summons to appear on November 10, 1966 when the trial was originally scheduled. We think the admission of this testimony was