State v. Piveral

I do not agree that it was error to receive in evidence the testimony given by Fulp at the first trial. My views on this subject are set forth in my dissenting opinion in the case of State v. Storm, 127 Mont. 414, 265 Pac. (2d) 971, and need not be repeated here.

*431However, there is this difference between this case and the Storm case. In the Storm case due diligence was used to locate the absent witness but his whereabouts at the time of the trial was unknown and hence his testimony was not obtainable. Here the witness Fulp was known to be absent from the state. That brings the case squarely…