80 Miss. 353 | Miss. | 1902
delivered the opinion of the court.
The record shows the following agreement i “It is admitted that in the justice’s court the defendant was on trial for robbery, and the robbery occurred at the same time that the blow was inflicted from which the party afterwards died, and that the blow was part of the means used in robbing him.” The appellant was charged with having committed robbery upon James Welch, a peddler, before the justice of the peace on the committing trial. On that trial Mr. Welch was present, confronting the accused, and testified under oath. The appellant had opportunity to cross-examine Mr. Welch; being present himself, and being represented by counsel. In the ‘ interval
Coming now to the test, on reason and principle, as to the admissibility of this sort of evidence, that test seems to be chiefly that the defendant on the former trial had full opportunity for cross-examining the witness; the issue (that is to say, the offense charged) being substantially the same. This involves two propositions: First, that the offense charged, or, as Mr. Russell puts it, “the point in issue,” or, as most authorities put it, “the issue,” must be the same; and, second, the issue being the same, the defendant must have full opportunity for cross-examination. The strongest authority for the state in this case is Reg. v. Beeston, Dear’s Cr. Cas., p. 405. But we may say, in short, that that and various other cases establish this proposition: That where the defendant was examined before the committing magistrate on a charge of assault and battery with intent to kill and murder, and the injured party testified against him, under oath, and was fully cross-examined, his testimony is competent against the accused on a trial for
It follows that the judgment must be reversed, and a new trial awarded.