upon a second trial is admissible. In Horton v. State, 53 Ala. 488, such testimony taken before a committing magistrate was admitted on a trial of the same cause in the circuit court, the witness being satisfactorily proved to be dead, following a like ruling in Davis v. State, 17 Ala. 354. The basis of the rule is the necessity of the case, to prevent the defeat of justice; the constitutional objection being obviated by the fact that the defendant has already had the opportunity to confront and cross-examine the witness, in the prior procedure involving the same issue. Marler v. State, 67 Ala. 55; Summons v. State, 5 Ohio St. 325. In Marler v. State, supra, the testimony given on the former trial by a witness who had since become insane, was allowed to be introduced in evidence, the necessity and reason of the case being regarded the same as if he were dead. The authorities are fully reviewed in that decision, and the true reason upon which they are based stated to be the necessity of preventing the miscarriage of justice; which applies with equal force to a witness who is shown to be absent from the state for an indefinite time, so that he cannot be reached by the process of the courts at the time of the trial. It is possible, it is true, that the absent witness may return at some day in the future, just as it is possible that an insane man may be restored to his reason; but the courts cannot be expected to delay the administration of justice, waiting for the happening of so indefinite a contingency.

The following language is used on this subject by Mr. Starkie : "It is an incontrovertible rule, that when the witness may be produced his deposition cannot be read, for it is not the best evidence. But the deposition of the witness nay be read, not only when it appears that the witness is actually dead, but in all cases where he is dead for all purposes of evidence; as where diligent search has been made for him, and he cannot be found; where he resides is a place beyond the jurisdiction of the court; or where he has become a lunatic, or attainted." 1 Stark. Ev. *409, *410.

In Long v. Davis, 18 Ala. 801, such testimony of a non-resident witness was allowed in a civil case; and in many of the American states its admissibility has been confined to cases of this character. In England, the practice on this point, in criminal cases, does not seem to have been uniform, the general rule, however, being not to admit the deposition, or secondary evidence of any witness, while any reasonable hope remained that the witness would be able

to attend on some future occasion. 1 Stark. Ev. (Sharswood's ed.) 411, note Y. The more recent decisions in this country however, support the contrary view; and they seem to us to better comport with both reason and analogy, as well as to more efficiently promote the convenient administration of justice. It is the settled rule, that when the subscribing witness to an instrument is out of the state, his handwriting may be proved, whether in a civil or criminal proceeding.

The following authorities are directly in point on this question in criminal cases: Sullivan v. State, 6 Tex. App. 319; People v. Devine, 46 Cal. 45; Shackleford v. State, 33 Ark. 539; Hurley v. State, 29 Ark. 17. And the following in civil cases: Magill v. Kauffman, 4 Serg. & R. 317; Howard v. Patrick, 38 Mich. 795; Carpenter v. Groff, 5 Serg. & R. 162; Long v. Davis, 18 Ala. 801.

The reasoning and dicta in the following cases, of absent, deceased, insane and sick witnesses, support the same view: Drayton v. Wells, 1 Nott & McC. 409, 9 Am. Dec. 718; Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244; Slusser v. Burlington, 47 Iowa, 300; Summons v. State, 5 Ohio St. 325; Marler v. State, 67 Ala. 55; Rex v. Hogg, 6 Car. & P. 176; Emig v. Diehl, 76 Pa. 359; Miller v. Russell, 7 Mart. N. S. 266; Lowe v. State, 86 Ala. 47.

In People v. Murphy, 45 Cal. 137, it is distinctly held that a person who kept notes of the testimony of a deceased witness may read such notes to the jury as the testimony of the deceased witness. Hair v. State, 16 Neb. 601.

And the same ruling obtains in New Hampshire. "Any person who heard the respondent testify on a former hearing, may testify what he then stated for the purpose of contradicting his present story. Such impeaching testimony is not confined to such witnesses as took minutes of his former testimony." State Archer, 54 N. H. 465.

In cases where the witness was living, but had gone without the jurisdiction, the decisions have been very uniform that the testimony is not admissible.

In Finn v. Com. 5 Rand. (Va.) 701, it is said that proof of what a witness said upon a former trial is inadmissible in a criminal prosecution, especially where he has only removed out of the state. The same was held in New York, in the case of People v.

Newman, 5 Hill, 295. So also in Brogy v. Com. 10 Gratt. 722; Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672; State v. Houser, 28 Mo. 233.

I have found no case where the testimony of a witness, absent but living, given at a former trial, has been allowed to be proved at a subsequent trial. There are cases where the testimony of the witness in the preliminary examination has been allowed to be proved, when the witness had died, but none where he had gone from the jurisdiction. And I think the law must be held to be that when the witness is living he must be produced, or his testimony cannot be received in criminal cases, even if he be beyond the jurisdiction of the court or all of the United States. The Constitution of the United States provides (Amendments, art. 6), that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him, and this without exception. Not if they can be produced, nor if they be within the jurisdiction, but absolutely and on all occasions. And, if the accused has this right, it must be mutual, and exist on the part of the government. The trial would not be a fair one otherwise. Nor can it fairly be maintained that, if the witness has once been confronted with the accused, before the committing magistrate, that the requirements or guaranties of the constitution are answered.

It is little better than an evasion of the matter to say that if the witness has been present at the preliminary examination, when the real question is whether the accused shall be held for the action of the grand jury, that, therefore, when he is indicted, and life, liberty or property are at stake, the right no longer exists. As well might it be said that if, in the complaint before the magistrate, the accused was informed of the nature and cause of the accusation, the subsequent indictment need not state the accusation again. The fair meaning of the constitution is that wherever and whenever he is put on his final trial he shall be confronted with the witnesses against him, if they be alive. United States v. Angell, 11 Fed. Rep. 34.

"What a witness, since dead, has sworn upon a trial between the same parties may be given in evidence, either from the judge's notes, or from notes that have been taken by any other person who will swear to their accuracy; or the former evidence may be proved by any person who will swear from his memory to its having

been given." Mansfield, Ch. J., in Doncaster v. Day, 3 Taunt. 262. See also Roberts v. State, 68 Ala. 515; State v. Able, 65 Mo. 357; People v. Brotherton, 47 Cal. 388; State v. Johnson, 12 Nev. 121; Dunlap v. State, 9 Tex. App. 179; State v. Wilson, 24 Kan. 189.

Paraphrasing the expression of Lord Mansfield the paragraph might read: "The testimony of a witness in a former trial since deceased, or beyond the jurisdiction, or for any adequate reason unable to testify, is competent if it satisfactorily appears that the absence or disability is without the connivance or fault of the party offering the evidence. Provided always that the evidence offered was given in a former trial of the same action between the same parties and affected the same rights in issue."

The common law rule (in its application to parties examined as witnesses) has been incorporated into the N. Y. Code of Civil Procedure, 830, which provides, "where a party has died since the trial of an action, or the hearing upon the merits of a special proceeding, the testimony of the decedent, or of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing by either party, subject to any other legal objection to the competency of the witness, or to any legal objection to his testimony or any question put to him."

It is pertinent to add that the death of the absent witness must be satisfactorily shown and that mere hearsay evidence calculated to establish it is inadmissible. State v. Wright, 70 Iowa, 152. See Presumption of Death, ante, § 18.

It may be taken as the rule, that where a party is deprived of the benefit of the cross-examination of a witness, by the act of the opposite party, or by the refusal to testify or other misconduct of the witness, or by any means, other than by the act of God, the act of the party himself, or some cause to which he assented, that the testimony given on the examination in chief may not be read. People v. Cole, 43 N. Y. 508; Smith v. Griffith, 3 Hill, 333. See Forrest v. Kissam, 7 Hill, 465. And the rule may be applied to the examination of a witness on commission, or conditionally out of court, when, in such case, the party desiring the benefit of a cross-examination has not been present or represented at the taking of the testimony, and had no opportunity to push his exami

nation, or to know the refusal of the witness to testify, or of his neglect to answer any question, or of other like misconduct of the witness. Smith v. Griffith, supra.

§ 225. Testimony of the Accused on his Preliminary Examination.-Immediately upon his arrest the party accused of crime is brought before a committing magistrate and examined with a view to determine the probability of his guilt or innocence. The testimony elicited on such examination, so far as it regards the accused, is not competent against him at the trial unless he is duly cautioned that any statement he may make is liable to be urged against him in his subsequent trial. State v. Spier, 86 N. C. 600; People v. Darr, 61 Cal. 544; Dickerson v. State, 48 Wis. 288; Farkas v. State, 60 Miss. 847; Rector v. Com. 80 Ky. 468; State v. Glass, 50 Wis. 218, 36 Am. Rep. 845.

The testimony of a mere witness on a preliminary examination may be given against him where subsequently he is indicted for offense. People v. Mondon, 103 N. Y. 211, 57 Am. Rep. 709.

We have previously stated the general rule that testimony either by witness or by the accused given in a former trial or investigation which is compulsory and tends to criminate them cannot be used.

On the preliminary examination or indeed in any trial whatever a neglect to cross-examine a witness assuming the presence of the right and opportunity to do so will not preclude the opposite party from introducing the testimony of the witness on a subsequent trial. Forrest v. Kissam, 7 Hill, 470; Comins v. Hetfield, 12 Hun, 375; People v. Com. 43 N. Y. 508.

Generally it may be said that it is error to suffer to go to the jury any evidence given by a witness on direct examination for the people, where by sudden illness or by death of such witness, or other cause without the fault of and beyond the control of the prisoner, he is deprived of his right of cross-examination. People v. Cole, supra.

Mr. Greenleaf says in section 163 of his work on Evidence: "But, where the testimony was given under oath in a judicial proceeding, in which the adverse litigant was a party and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth being no longer want. ing, the testimony so given is admitted, after the decease of the witness, in any subsequent suit between the same parties." See