1. Witnesses — Securing Out-of-State Witnesses — Materiality
Defendant accused of issuing a check knowing he had insufficient funds to cover it met burden of showing nature and materiality of evidence he wanted to produce where he moved for trial court to compel attendance of out-of-state witnesses on his behalf, stating that handwriting and voice samples and lineup identification would show that one of the witnesses issued the check, and that other witnesses would show a conspiracy to bring about his arrest and would tend to negate any fraudulent intent on his part; and denial of motion was reversible error.
2. Witnesses — Securing Out-of-State Witnesses — Rights of Parties
Right of a criminal defendant to have attendance of out-of-state witnesses compelled where defendant shows their evidence will be material is a fundamental one.
3. Witnesses — Securing Out-of-State Witnesses — Findings
It was improper for judge in criminal trial to fail to state his essential findings on the record with respect to defendant's motion to have attendance of out-of-state witnesses compelled. V.R.Cr.P. 12(d).
Per Curiam.
Defendant was convicted of issuing a check knowing he had insufficient funds, in violation of 13 V.S.A. § 2022. He appeals his conviction because of the trial court's refusal to compel the attendance of out-of-state witnesses in his behalf, under 13 V.S.A. § 6646. By affidavits, he claimed handwriting samples, voice samples, and line-up identification of one of the witnesses would show that the witness, and not defendant, issued the check in question, that other witnesses would show a conspiracy to bring about his arrest, and would tend to negate any fraudulent intent on his part.
The right sought by defendant was a fundamental one. Washington v. Texas, 388 U.S. 14, 19 (1967). Unlike the situation in State v. Emrick, 129 Vt. 475, 282 A.2d 821 (1971), where defendant refused to disclose the nature and materiality of the evidence he wanted to produce, the defendant here met the burden of such a showing. Evidence such as he outlined could well have changed the outcome of the case, as shown, in part, by the prosecutor's comment in jury argument on defendant's failure to produce witnesses. Materiality, not conclusiveness, is the test. We note also a failure by the trial court to state its essential findings on the record with respect to defendant's motion, as required by V.R.Cr.P. 12(d).
Judgment reversed and cause remanded.