Whitfield, C. L,
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 *360between the committing trial and the convening of the circuit court, James Welch, the injured person, died. The testimony does not seem to have been written in compliance with the statute, in accordance with which the testimony of Mr. Welch should have been taken down in writing and returned to the circuit court. The appellant was indicted in the circuit court for murder, not robbery. On his trial for murder, four witnesses were introduced by the state to prove orally their recollection of the substance of the testimony delivered by Mr. Welch on the committing trial. This testimony was objected to as incompetent. The court overruled the objection, and the question presented by this appeal is whether that action of the court was correct on that state of case. The general rule is stated by Mr. Bishop in 1 New Cr. Proc., sec. 1195: “Of necessity, if a witness has died, or has become insane, though but temporarily, or by the opposite party is kept out of the way, or is too ill or infirm to come to the court (for it cannot adjourn to his house), or if from any cause for which the party is not responsible, such as residence beyond the process of the court, or the like, the witness’ personal presence cannot be had (a rule as to which the decisions are somewhat indistinct and inharmonious), added to which, if there has been a prior proceeding, involving the same issue between the same parties, conducted regularly in pursuance of law, and therein the defendant had the opportunity to cross-examine the witness against him — not otherwise — what was on such former hearing testified to by a witness whose presence cannot now be had may be shown against the defendant.” Mr. Wharton says that it is enough if the offense be “substantially the same,” his statement of the rule being as follows (Whart. Cr. Ev. (9th ed.), sec. 227) : “What a deceased witness testified to on a former procedure against the same defendant for the same offense as that under trial, or for an offense substantially the same, may be proved by witnesses who heard the testimony of the witness; nor is such oral evidence excluded by the fact that the original testi*361mony was reduced to writing, nor, in criminal cases, by the constitutional provision that the defendant is entitled to be confronted with tbe witnesses against him.” It ought to be noted, in passing that Mr. Wharton improperly calls this a species of hearsay evidence. A dying declaration is hearsay evidence, but the testimony of the original witness to the facts, delivered under oath, is not hearsay evidence, as pointed out by some authorities. The courts hold contradictory views on some of these propositions. For instance, it is held in Finn v. Commonwealth, 5 Rand., 701, that such testimony is not admissible in any criminal case whatever; and in Massachusetts, New York, New Hampshire and Mississippi it is held that it is only admissible where the witness is dead. Le Baron v. Crombie, 14 Mass., 234; Powell v. Waters, 17 Johns., 176; Crary v. Sprague, 12 Wend., 41 (27 Am. Dec., 110); Wilbur v. Selden, 6 Cow., 162; State v. Staples, 47 N. H., 119 (90 Am. Dec., 565); Owens v. State, 63 Miss., 452. Again, it is held in New York and Massachusetts that the witness must state the precise words, and not the substance only, of the testimony of the deceased witness. We concur in the very able opinion of Judge Drummond in U. S. v. Macomb, 5 McLean, 286 (Fed. Cas. No. 15,702), on this point. See, specially, page 299. Judge Drummond’s reasoning on this proposition is unanswerable. It is enough if the witness is able to state the material substance of the testimony of the deceased witness. Again, in an opinion of remarkable power delivered by Davidson, J., in Cline v. State (Tex. Cr. App.), 36 S. W., 1099 (37 S. W., 722, 61 Am. St. Rep., 850), it is held the constitutional provision requiring the witness to confront the accused on the trial means the trial on the merits before the jury; that consequently testimony of the deceased taken before an examining court is not testimony taken on a former trial, within the meaning of the word “trial” in this clause of the constitution; and that the defendant has the right to be confronted by the witness on such trial on the merits before a jury as many times as there *362are suck trials — hung juries, reversals, etc., not changing the rule. We call attention to these differences between the courts to emphasize the caution and extreme solicitude manifested by the courts in allowing this testimony to be introduced. And it will be noticed that this state admits the testimony in but one case, to-wit, the death of the witness. Mr. Bishop says, in 1 New Cr. Proc., p. 732, note 7, “Such is, by all opinions, the doctrine in civil cases, but there may be a state or two wherein it is not received in criminal cases;” citing Owens v. State, 63 Miss., 450; Finn v. Commonwealth, 5 Rand., 701. It doubtless would be well for our legislature to enact-that such testimony should be received in all the categories mentioned in section 1195 of Dr. Bishop’s work; adding the case of a witness made incompetent to testify since he delivered his testimony on the former trial. This court has held strictly to the rule of admitting such evidence, only where the witness has died. This shows the necessity for extreme caution in application of the rule in this state.
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 *363murder in the circuit court; the injured party in the meantime having died. Obviously the issue in such case is substantially the same. In the case of Beeston, supra, at page 409, the eminent counsel for the prisoner (Mr. Huddleston) was asked, “Can you suggest any question material on the one charge, and not on the other ?” And he was not able to do so. But it must be obvious that there are very many questions which might be appropriately asked on the charge of robbery which would not necessarily or perhaps ordinarily be asked on the charge of murder. We have given the question the most careful consideration,-and in view of the doctrine of this court in the Owens case, supra, and the manifest caution and jealous care to preserve the constitutional guaranty characterizing the decisions of the courts elsewhere, we are constrained to hold that there is substantial merit in the contention that the issue on the charge of robbery is not substantially the same, within the meaning of this rule of evidence, with the -issue on the charge of murder in the circuit court, although the blow inflicted in effecting the robbery was the same which caused the subsequent death. It must be perfectly clear that the issue — the offense charged — is substantially the same, so that the questions asked to make out the one offense would be the same as those asked to make out the other, else the rule is not satisfied, and the testimony is incompetent. We refer especially to note in 61 Am. St. Rep., 891, where the rule is thus stated: “From among the multitude of cases sustaining this rule that the testimony of a witness for the state, given on a preliminary examination or former trial of the accused, who was present and had reasonable opportunity to. cross-examine the witness, is competent against the defendant on his subsequent trial for the same charge — the witness having died since giving his testimony, and before the subsequent trial — may be cited the following authorities, in addition to those already noticed.” And a multitude of the most recent authorities are then quoted in support of the rule as stated. And also to the note to Bergen v. People, 65 Am. Dec., *364676, and Brown v. Commonwealth, 73 Pa., 321 (13 Am. Rep., 740). See specially, also, 2 Am. & Eng. Enc. Law (2d ed.), pp. 526, 527, with notes. It will be noticed in Beeston’s case, supra, that the observation of Jervis, O. J., at page 413, to the effect that the charge before the magistrate may not be the same technical charge on which he is afterward tried, was made in construction of the act of 11 and 12 Viet., which is set out at page 406, and not as stating the rule in the absence of statute. It will he further noticed that in Owens v. State, 63 Miss., 452, the language is that the testimony must be “given under oath in a judicial proceeding between the same parties on the same issue.” We hold that it is enough if the issue be substantially the same.
It follows that the judgment must be reversed, and a new trial awarded.