Robert Joseph Sheehan, plaintiff in error (hereinafter defendant), was charged with robbery, battery and attempted aggravated battery in a three count complaint. The charges stemmed from an incident which occurred in the early morning hours of February 28, 1973, in Pettibone Park in La Crosse county, Wisconsin in which David Woods was beaten and robbed. In addition to the defendant, two others, Randy Stephens and Gerald Johnson, were charged with the same offenses.

Following a preliminary examination, the district attorney requested that a deposition be taken of David Woods, the alleged victim, in order to perpetuate his testimony. The request states that Woods' testimony is material and that the deposition is necessary to prevent a failure of justice because the witness and his physician, Dr. Thomas Buie, advised the district attorney that Woods was so ill as to be unable to testify at the trial or that he is suffering from such an illness which would become aggravated during the course of testifying.

On May 11, 1973, a deposition was taken. Cross-examination was conducted by counsel for both the defendant and his codefendant Johnson. Woods' testimony at the deposition was substantially similar to his testimony at the preliminary examination.

The three cases were severed and the defendant was tried first on May 14 and 15, 1973. Immediately prior to the trial a hearing was held to determine the admissibility as evidence under sec. 967.04, Stats., of the deposition. Only Dr. Thomas Buie, Woods' psychiatrist, was called to testify at this hearing. Dr. Buie diagnosed Woods' condition as chronic neurosis. As a result of the diagnosis, history and examination of Woods, it was Dr. Buie's opinion to a reasonable degree of medical certainty or probability, that there was a "significant chance" that testifying in open court in public and before a jury would cause him to become ill, psychiatrically.

Following Dr. Buie's testimony the court held that the deposition was admissible because the witness was "unable to testify because of the mental disease" and "the significant chance of him becoming gravely ill or psychiatrically ill would be at a level where he would be unable to perform his work and function as an individual."

Mr. Woods' deposition was read at the trial and contained the following testimony. At approximately one a.m. on February 28, 1973, Woods left Michael's Bar in downtown La Crosse. Outside the bar he saw a man standing near a light colored Volkswagen which left without the individual. Woods asked him if he needed a ride and agreed to take him to La Crescent, Minnesota. They got into Woods' car and headed toward La Crescent. They did not have any conversation until the passenger asked him to turn into Pettibone Park. Although Woods pointed out the park closed at 11 p.m., he drove to the pavilion area because the man said he "wanted to go to the `john.'" Woods got out to go to the bathroom and assumed the passenger did also. Woods was struck several times around his head and body and he fell and passed out. He had not seen anyone else in the park other than his passenger.

His next recollection was trying to get up when the police arrived. He was bleeding "quite heavily" from a cut above his right eye. He also had bad scratches on his face, a cut lip and bruises to other areas of his body. While crawling on the ground he found his billfold which had been in his pocket. After the police took him to the hospital, he discovered seven to nine dollars were missing from the billfold. He could not identify who struck him but he identified Gerald Johnson as the one to whom he had given a ride that evening.

Officer Gerald Le Que of the city of La Crosse police department testified that at about 1:45 a.m. he saw a car stop near the pavilion in Pettibone Park. After leaving the area to assist another officer, he went back to the park and saw a white Volkswagen come out of the park. There were three people in it and the left rear taillight was showing bright white. He went to the pavilion area and found Woods on his hands and knees and he was bleeding. Woods told him he had been beaten by three or four persons. The officer requested an ambulance from the police dispatcher and informed the dispatcher that he had a party who had been assaulted in the park and a white Volkswagen with a left rear taillight broken or missing might be involved.

Officer Clark, the police dispatcher, testified as to receiving Le Que's call and dispatching Officer Mitchell and notifying La Crosse and La Crescent police to look for the white Volkswagen.

Officer Mitchell testified as to seeing a white Volkswagen fitting the description given by Le Que heading for La Crescent and so notified the dispatcher. He proceeded to Pettibone Park as directed. He observed Woods who was bleeding about the face. He also identified a photograph of a footprint in the snow made by a deep cleated shoe as being the same as a footprint he saw in the snow at the scene. He also said that the footprint compared to the sole of the shoe which was identified as an exhibit. This exhibit was later identified as being similar to the shoes worn by the defendant when he was detained by the police in La Crescent and were the shoes taken from the defendant at La Crescent village hall.

Officer Johnson of the La Crescent police testified as to having received a call from La Crosse about the Volkswagen, seeing a similar vehicle just prior to the call and following it. He saw the three codefendants walking in the area where he had seen the vehicle and asked them where they had been. He then checked Randy Stephens' car which was a light colored Volkswagen with a defective left taillight. The motor was warm.

The codefendant, Randy Stephens, after being granted immunity, testified for the state. He testified that on the night in question he was with Sheehan and Johnson with his car, a light blue Volkswagen with a defective left rear taillight. He first saw Woods in front of Michael's Bar in La Crosse. He and Sheehan left Michael's and then followed Woods' car in which Johnson was riding. They again saw Woods and Johnson in Pettibone Park where the two were on the ground. Sheehan either kicked or shoved Woods with his foot to Woods' head. Stephens then took Woods' billfold and removed seven dollars. He testified the three split the money later.

The defendant, Sheehan, did not present any witnesses and at the close of the state's case he moved for an order of dismissal or judgment of acquittal on the charges of robbery and attempted aggravated battery. The court denied the motion as to the robbery count and reserved its decision on the attempted aggravated battery count.

The jury returned a verdict of guilty on all three counts. The defendant moved for an order or judgment of acquittal on the robbery and attempted aggravated battery counts or in the alternative for a new trial. The court acquitted the defendant on the attempted aggravated battery and accepted the verdicts in regard to the robbery and battery counts.

The court sentenced the defendant to a term not to exceed thirty months at Green Bay on the robbery count and to a term not to exceed six months in the county jail on the battery charge. The sentences were concurrent. Defendant's postconviction motion for an order or judgment of acquittal or in the alternative for a new trial was denied and writs of error were issued.

HANLEY, J.

Four issues are presented on this appeal:

1. Did the trial court err in allowing the deposition of the victim of the battery and robbery to be received into evidence?

2. If there was an error as to the admissibility of the deposition, was it harmless error?

3. Should the circuit court have granted a new trial on the basis of newly discovered evidence?

4. Should a new trial be granted in the interest of justice?

Admissibility of the deposition.

The statute, sec. 967.04, provides how and under what circumstances the deposition may be used. Those portions which are pertinent here provide:

"967.04 Depositions in criminal proceedings. (1) If it appears that a prospective witness may be unable to attend or prevented from attending a criminal trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion and notice to the parties order that his testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. . . .

". . .

"(5) (a) At the trial or upon any hearing, a part or all of a deposition (so far as otherwise admissible under the rules of evidence) may be used if it appears: That the witness is dead; that the witness is out of state, unless it appears that the absence of the witness was procured by the party offering the depositions; that the witness is unable to attend or testify because of sickness or infirmity; or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena."

In Pointer v. Texas (1965), 380 U.S. 400, 85 Sup. Ct. 1065, 13 L. Ed. 2d 923, the supreme court held that the sixth amendment's right of an accused to confront the witnesses against him is made obligatory on the states by the fourteenth amendment. The court noted that there are few subjects upon which there is more nearly unanimous agreement than the belief that the right to confrontation and cross-examination is an essential and fundamental requirement for a fair trial.

If a witness is unavailable to testify, it is not a denial of the right to confrontation to allow prior recorded testimony of a witness where the defendant has had an adequate opportunity to cross-examine the witness. Mancusi v. Stubbs (1972), 408 U.S. 204, 92 Sup. Ct. 2308, 33 L. Ed. 2d 293.

Depositions of witnesses are allowed in criminal cases. State ex rel. Drew v. Shaughnessy (1933), 212 Wis. 322, 249 N.W. 522. Sec. 967.04, Stats., so provides. However, if the witness is not in fact unavailable or if the prosecutorial authorities have not made a good-faith effort to obtain his presence at trial, the use of the deposition does not fit within the exception to the confrontation requirement. Barber v. Page (1968), 390 U.S. 719, 88 Sup. Ct. 1318, 20 L. Ed. 2d 255.

In Spencer v. State (1907), 132 Wis. 509, 112 N.W. 462, it was held that mere temporary physical or mental illness or disability is not sufficient to justify the reception of former testimony. However, where the witness is in such a state, either mentally or physically, that in all probability he would never be able to attend the trial, former testimony is allowable at the trial.

Under the rule of Spencer v. State, supra, the use of the deposition in this case was error because there was no showing that Woods' condition was permanent. Dr. Buie testified as to his diagnosis on April 28, 1973, and stated that he believed the condition would exist on the day of the trial and the following two days. It was not shown that Woods' condition was permanent or that it would continue for any considerable period.

In addition, although Dr. Buie did testify that what Woods found most threatening was that he would be present when questioned about possible homosexual relations, he did not recall knowing that Woods had testified at a preliminary hearing and he did not know that Woods testified at a deposition three days before. Between the deposition and the day of trial, Dr. Buie's only contact with Woods was by way of a telephone conversation. Considering the constitutional right to confrontation and the statutory requirement that a deposition may be used if it appears that the witness is unable to testify because of sickness or infirmity, we are satisfied that Dr. Buie's testimony did not provide a sufficient foundation for the deposition's use.

As to the rule in civil cases this court in Schoenauer v. Wendinger (1971), 49 Wis.2d 415, 423, 182 N.W.2d 441, stated:

"The in-person testimony of witnesses is to be encouraged. The opportunity for the jury and court to assess the testimony of each witness, reflecting on his demeanor and his conduct under cross-examination, is ample reason why in-person testimony is to be preferred. The taking of depositions is necessary on occasion and their use permitted, but only after the court makes a finding that one of the conditions for their use has been satisfied. We find error here in the trial court's admission of the Brodnicki deposition into evidence without a proper foundation having been laid for its use."

We conclude that because there was no showing that the witness was permanently ill, the defendant was denied his constitutional right to confrontation by the court allowing the use of Woods' deposition. Since we hold it was error to allow the use of the deposition we need not reach the remaining constitutional questions raised by defendant on this issue. Question of harmless error.

"The test of harmless error is not whether some harm has resulted, but, rather, whether the appellate court in its independent determination can conclude there is sufficient evidence, other than and uninfluenced by the inadmissible evidence, which would convict the defendant beyond a reasonable doubt." Wold v. State (1973), 57 Wis.2d 344, 356, 204 N.W.2d 482.

The defendant argues that this test is incomplete under Chapman v. California (1967), 386 U.S. 18, 87 Sup. Ct. 824, 17 L. Ed. 2d 705, in that Chapman requires a finding beyond a reasonable doubt both as to the erroneously admitted evidence not influencing the untainted admissible evidence. However, in Scales v. State (1974), 64 Wis.2d 485, 219 N.W.2d 286, this court reaffirmed the Wold test after pointing out that the error in that case was harmless even under "the earlier test" of Chapman v. California, supra.

While this court has held that if an error is of constitutional proportions, it is assumed that the error is prejudicial and the prosecution has the burden of showing it was harmless beyond a reasonable doubt. State v. Spring (1970), 48 Wis.2d 333, 179 N.W.2d 841. Such errors are subject to the harmless error rule. Wolke v. Fleming (1964), 24 Wis.2d 606, 129 N.W.2d 841, certiorari denied, 380 U.S. 912, 85 Sup. Ct. 897, 13 L. Ed. 2d 798. Also, this court has said that the Wold test of harmless error is one of degree of harm and that "[i]n cases of confessions and right to trial by jury, effective assistance of counsel, it has been generally held the harm is such as to require automatic reversal." Wold v. State, supra, page 357, but in Scales v. State, supra, it was held that an error in using admissions obtained in the absence of Miranda warnings, while of constitutional dimensions, was harmless.

We think the error found in this case is harmless. The victim Woods could not identify who beat or robbed him. It was Stephens' testimony which tied the defendant in with these acts. While Stephens was an accomplice, his testimony would be competent testimony upon which to base a verdict of guilty if it is of such a nature that it is entitled to belief and the jury believes it. State v. Haugen (1972), 53 Wis.2d 339, 193 N.W.2d 50; and Voigt v. State (1973), 61 Wis.2d 17, 211 N.W.2d 445. In addition, much of Stephens' testimony was corroborated by the testimony of the police officers who appeared on the scene. Newly discovered evidence.

In State v. Herfel (1971), 49 Wis.2d 513, 521, 522, 182 N.W.2d 232, this court stated:

"The standard requirements for granting a new trial on the basis of newly discovered evidence are well established; they are: (1) The evidence must have come to the moving party's knowledge after a trial: (2) the moving party must have not been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial."

If the newly discovered evidence fails to pass any one of these five tests, it is not sufficient to warrant a new trial. Swonger v. State (1972), 54 Wis.2d 468, 195 N.W.2d 598.

Here, although the defendant did not know exactly what Johnson's testimony was going to be, he did know that Johnson was involved and that Johnson had knowledge of the facts of the case. The defendant contends that "[s]ince Mr. Johnson's exact testimony could not be known by the defendant prior to trial" it was newly discovered. We disagree. A witness' exact testimony is never known until it is given and the fact that Johnson did testify at his own trial does not satisfy the test for newly discovered evidence. New trial in the interest of justice.

By the Court. — Judgment and order affirmed.