Summons v. State

5 Ohio St. 325 | Ohio | 1856

Lead Opinion

Bartley, C. J.,

delivered the opinion of the court.

The assignments of error in this case, present the following questions for determination:

1st. Whether the district court erred, by admitting evidence on behalf of the State, to prove the statements of a witness (since deceased), given as evidence at a former trial on the same indictment.

And if not:

2d. Whether it be essential to the competency of such evidence, that it be given in the identical words of the deceased witness.

3d. Whether the court erred in refusing to exclude from the consideration of the jury the testimony of Logan, on the alleged ground that he had failed to narrate the statements of the deceased witness on the former trial, in all its material parts.

4th. Whether the district court erred in charging the jury that, if they were satisfied that the witness Logan had not given the substance of all the statements of the deceased witness on the former trial, they were not for that reason to exclude it from their consideration, provided, that, taking the testimony of Logan in connection with the testimony of other witnesses, they were satisfied that they had before them the substance of all the statements given by the deceased witness as evidence on the former trial.

Of these, in their order-^-

Í. It is claimed, that the admission of testimony against the accused in a criminal case, to prove the statements given as evidence on a former trial of the cause, by a witness since deceased, contravenes the provision of the tenth section of the bill of rights, which provides that, “ In any trial, in any court, the party accused shall he allowed [among other things] to meet the witnesses face to face.” This, like numerous other provisions in the bill of rights, is a constitutional guaranty of one of the great fundamental principles well established, and long recognized at common law, both in England and in this country. The scope and operation of it are clearly defined and well understood, in the common law recognition of it; and the assertion of it in the fundamental law of the State, was designed neither to enlarge nor curtail it in its operation, but to give it permanency, and secure it against the power of change or innovation.

The object of this provision manifestly is to exclude testimony by depositions, by requiring it to be given orally, in the presence of the accused, on the trial. The admission of testimony by depositions against the accused in a criminal cause, would often afford the prosecutor great advantages over him, as well as furnish, at times, opportunities for abuses beyond the reach of detection by the defendant. Deprived of this right, the accused would often be without the opportunity of cross-examination, without the means of seeing, hearing, or knowing the persons who testify against him, and without the advantage of an oral examination of the witnesses before the jury which is to decide upon his case. But important as this right is, as established at common law, and secured by the constitution, it has application to the matter of the personal presence of the witness on the trial, and not to the subject matter or competency of the testimony to be given. The requirement that the accused shall be confronted, on his trial, by the witnesses against him, has sole reference to the personal presence of the witnesses, and it in no wise affects the question of the competency of the testimony to which he may depose. When the accused has been allowed to confront, or meet face to face, all the witnesses called to testify against him on the trial, the constitutional requirement has been complied with. This was done on the trial of the case before us, in the district court. Mary Clinch was not a witness on that trial. Being dead, it was an impossibility that she could be a witness on that trial. Logan, however, who was a witness, and did testify, did meet the accused face to face on the trial. The provision in the bill of rights was complied with. And the true question is, not whether the constitutional right of the accused was violated, but whether the testimony given by Logan on the trial was competent or not.

There are several well established exceptions to the rule that hearsay is not evidence. But if the right secured by the bill of rights applies to the subject matter of the evidence, instead of the witness, it would exclude, in criminal cases, all narration of statements or declarations made by other persons, heretofore received as competent evidence. The construction insisted on for the plaintiff in error, treats the person whose statements or declarations are narrated, as the witness, rather than the person who testifies on the trial. This construction would exclude all declarations in articulo mortis, by confounding the identity of the dying man with that of the witness called upon in court to testify to such declarations. Precisely the same objection would exclude all declarations by co-conspirators — statements made in the presence of the accused in a criminal case, and not denied by him ; and the statements by the prosecutrix in prosecutions for rape, made immediately after the commission of the offense. And, by a parity of reasoning, the admissions or confessions of the accused, and, in prosecutions for perjury, the very testimony of the accused on which the perjury may be assigned, would be excluded by the provision in the bill of rights forbidding that any person shall be compelled, in any criminal case, to be a witness against himself.

The constitutional objection has been, on several occasions, urged against the admissibility of dying declarations. And there would seem to be even more reason for the exclusion of this, than evidence of the statements of a deceased witness on a former trial. For the latter would seem to be, now, confined to cases where opportunity for cross-examination had been afforded, and, therefore, to cases where the accused had been confronted by the deceased witness when the testimony was given on the former trial. But the competency of the testimony of dying declarations in cases of homicide, appears to have been so well settled by adjudications, that it will scarcely be questioned hereafter. Commonwealth v. Hill, 2 Grat. 594 ; Campbell v. State, 11 Georgia 353 ; Woodside v. State, 2 How. (Miss.) 655 ; Penn v. Stoops, Addison R. 381; State v. Arnold, 13 Iredell 184; McLean v. State, 16 Alabama R. 672; State v. Cameron, 2 Chand. (Wis.) 172; Greene v. State, 13 (Miss.) R. 382; State v. Shawley, 4 Harr. (Del.) 562 ; Commonwealth v. McPike, 3 Cush. 181; Montgomery v. State of Ohio, 11 Ohio Rep. 424.

Testimony of the statements of deceased witnesses given on a former trial, between the same parties, touching the same subject matter, has been admitted among the exceptions to the rule excluding hearsay evidence, from a very early period, and has been sanctioned by an unbroken current of decisions, both in England and in this country. It has been received ex necessitate, and under proper precaution, as secondary evidence, being the best evidence the circumstances of the case admit of. The main reason for the exclusion of hearsay evidence, is to be found in the want of the sanction of an oath, of legal authority requiring the statement, and an opportunity for cross-examination. Where these important tests of truth are not wanting, and the testimony of the statements of the deceased witness, is on a subsequent trial, between the same parties, touching the same subject matter, and open to all the means of impeachment, and objections as to competency, which might be taken if the deceased person could be personally present as a witness, there would not appear to be any sound and satisfactory ground for its exclusion.

This doctrine has been denied, however, all application to criminal cases, but without any good and substantial reason. The general rules of evidence, the sole object of which is the ascertainment of truth, are usually the same both in civil and in criminal cases. In the case of declarations made in extremis, indeed, even greater latitude is given in criminal, than in civil cases. And as to the testimony of the statements of a deceased witness, given on a former trial, it must be conceded, that the accused is confronted by the persons called to testify against him, on the last, as well as on the former trial. The authorities cited, on behalf of the plaintiff in error, to except the application of the rule from criminal cases, are not well sustained. They consist chiefly of some of the earlier elementary writers on the law of evidence, who have relied solely on the case of Sir John Fenwick, 5 Harg. St. Trials 62. That was a proceeding in Parliament by bill of attainder, on a charge for high treason. It appeared that Lady Fenwick had spirited away a material witness, who had sworn against one Cook, on his trial for the same treason. And the recorder having said, that the deposition taken before the examining justice was evidence against the prisoner, he having caused the witness to be spirited away; this was treated as something novel, and it was asserted that no lawyer would advance it who was out of his ABC. To this, another member replied, that he thought] Lord Hale was beyond his ABC, especially in the Pleas of the Crown; and he read from his book, that an ex parte deposition might be used against the prisoner, when the witness was dead or withdrawn. Now, this was not the case of a deceased witness, nor a case where there had been an opportunity for cross-examination on a former trial between the same parties.

A remark of Mr. Evans, in his 2d Vol. of Pothier on Contracts, has been referred to as sustaining this exception in criminal cases; but Mr. Evans cites no authority to sustain him. Also, the case of The State v. Atkins, 1 Tenn. Rep., by Overton, 229, is referred to. But this case is directly overruled in Johnson v. The State, 2 Yerger’s Rep. 58, and in the case of Kendrick v. The State, 10 Hump. Rep. 479, in the same State.

The case of Finn v. The Commonwealth, 5 Rand. Rep. 701, is relied on; but the only authority cited to support this case is that of Peak’s Evidence, and that rests solely on the authority of Fenwick’s Case. Besides this, in Finns’ Case, the statements offered were not those of a witness since dead, but one admitted to he living, who had removed from the State. The case, therefore, is not in point. The decision in Finns’ Case was approved by the same court in 1853, in Brogy’s Case, 10 Grattan’s Rep. 722. This was a case where an offer was made on behalf of the prisoner, to prove what a witness living, but absent from the State, had sworn at a former trial. In neither of these cases, does the principle settled bear any thing like as strong analogy to the ease before us, as Kill’s Case, decided by the same court in 1845, where the constitutional objection to the admission of dying declarations was urged and overruled.

The competency of such testimony, in criminal cases, is very clearly sustained by the weight of authority in England. In the case of The King v. Radburne, (1 Leach. C. C. L. 512, 3d ed.,) the testimony of a deceased witness, who had been examined in the presence of the prisoner, was held admissible. The same doctrine is recognized in Bullver’s Nisi Prius 242, and by Lord Kenyon in the case of The King v. Jolliffe, 4 Ter. Rep. 290. In Buckworth’s Case, adjudged in the reign of Charles II, it was held, that to sustain an information for perjury, it was competent to prove by a witness what another witness had test!fied on the first trial. Sir T. Raymond’s Rep. 170. To the same effect is Rex v. Smith, 2 Starkie’s Rep. 186. And in the more recent case of Regina v. Beeston, (29 Eng. L. & Eq. Rep. 527,) this doctrine is fully sanctioned. Also, 2 Lilly’s Abr. 745, and Rex v. Rowley, 1 Moody Crown Cases 111; Rex v. Reed, M. & M. C. 403 ; and Rex v. Carpenter, 2 Shower 47.

In the case of The United States v. Wood, 3 Wash. C. C. Rep. 440, it was held, that what a witness (since dead) had testified at a former trial on the indictment, may be proven by a person who was present and heard his testimony.

In the case of The Commonwealth v. Richards, 18 Pick. Rep. 434, the constitutional question touching the competency of such testimony was directly presented, the words in the bill of rights in Massachusetts being substantially the same which are used in the constitution of Ohio. And, after full deliberation, it was held, that the competency of such evidence was not affected by the provision in the bill of rights. This decision, which is entitled to very high consideration, is directly in point in the case before us, upon the constitutional question.

To the same effect are the cases of Kendrick v. The State, 10 Hump. Rep. 479; Crawford v. The State, Yer. Rep. 60, in Tennessee ; The State v. Canney, decided by the supreme court of Maine, 9 Law Reports 408; and The State v. Hooker, 17 Ver. Rep. 659. And in strict analogy on the constitutional question, are the cases of Campbell v. The State of Georgia, 11 Geor. Rep. 354 ; Hill’s Case, 2 Grattan’s Rep. 595, in Virginia; The State v. Tilghman, 11 North Carolina Rep. 514; Montgomery v. The State, 11 Ohio Rep. 424; Woodsides v. The State of Mississippi, 2 How. (Miss.) Rep. 656.

These adjudicated cases, and the reasoning by which they are sustained, appear to me to take the question of the constitutional competency of this testimony wholly out of the field of controversy.

2. Is it essential to the competency of the testimony in question, that it be a narration of the statements of the deceased witness ipsissimis verbis ?

The admission of this testimony rests upon the ground of mere secondary evidence, being the best which the circumstances admit of. The statements of the deceased witness having been made on oath, and under legal requirement, and in a case in which opportunity for cross-examination was afforded to the person against whom they are offered, carry with them the ordinary judicial tests of truth. Evidence of them, therefore, is allowed as an exception to the general rule which excludes hearsay ; but it is always received with a vigilant precaution against liability to mistake, misapprehension or perversion. And there would seem to be no sound reason for subjecting it to a rigid rule amounting to its almost total exclusion, which is inapplicable in other cases where testimony showing words spoken, or the statements of a party or other person, is admissible. In prosecutions for perjury, the testimony of the accused upon which perjury is assigned, is not required to be ipsissimis verbis, but allowed to be given in substance. So with the declarations of a co-conspirator; declarations made in extremis ; or the admissions or confessions of a party. So also with testimony of verbal slander, or the declarations or statements of a party or witness, offered for purposes of contradiction or impeachment. If in these and numerous other instances, the witness is not required to narrate the statements in the identical words of the other person, but is allowed to state the substance of what he heard, in language as near that which was used as he can recollect, what sufficient reason can exist for a departure from the rule, in case of the testimony of a deceased witness on a former trial ? It is said that a slight variation may materially change the testimony. This may be, but there exists a like exposure to the danger of material variation in those cases where testimony of the substance of the hearsay declarations of parties is daily admitted.

Touching this rule of ipsissimis verbis in the evidence of the statements of a deceased witness, Mr. Justice Gibson, in Cornel v. Green, 10 Serg. and R. 14, said, “ the rule, applied with that degree of strictness, would be altogether useless in practice ; for there is no man, be his powers of recollection what they may, who could be qualified to give such evidence ; and if he should undertake to swear positively to the very words, the jury ought on that account alone to disbelieve him.” It is the constant observation of lawyers, familiar with trials at nisi prius, that the testimony of witnesses is rarely remembered, or even taken down by those taking notes at the time, in the identical words of the witnesses, although the facts and ideas are in substance distinctly noted and remembered. Even the same witness called to testify on a second trial, does not and cannot, in narrating the same facts, repeat the identical words used by him on the former trial. The synonomy of our language is such, that a literal adherence to the same words is not necessary to the expression of the same ideas. “ The substance of what a witness has said, the facts he stated, the opinions he expressed, the reasons he assigned, the explanations he gave, the motives he avowed, may all be faithfully testified to without even an attempt to repeat all the words.” To require the statements of the deceased witness, therefore, to be given in the same words, is prescribing a rule not essential to the communication of truth, and one “ which the imperfection of our nature, in the structure of the human memory, will not warrant. It, in truth, excludes the thing which it proposes to admit, and at the same time opens a door for knaves to enter where honest men cannot approach.”

The rigid rule that the very words of the deceased witness must be given, does not appear to have been required in the English decisions, excepting one or two cases. In Buckworth's case, (Sir Thomas Raymond’s Rep. 170) it was not required. Nor in the case of Coker v. Farewell, 2 P. Wms. 563. In Pike v. Cranch, 1 Lord Raymond 730, it was resolved, in a trial at bar, that “ if a man was sworn as a witness at a former trial, and gave evidence and died, the matter that he deposed at a former trial may be given in evidence at another trial by any person who heard him swear it at the former trial.” Here the language of the court excluded the restriction; for it was the matter (not the words) of the deceased witness which was allowed.

In Mayor of Doncaster v. Day, 3 Taunt. Rep. 261, Mansfield, C. J., said: “ What a witness (since dead) has sworn upon 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 other person who will swear from his memory, to its having been given.”

To the like effect are the cases of Rex v. Radbourne, Leach. C. C. L.; Rex v. Paine, Salk. 281, 5 Mod. 183 ; and Rex v. Smith, 2 Starkie Rep. 183. In Doe v. Passingham, 2 Car. & Payne 440, a witness was allowed to prove what a deceased witness had sworn to on a trial which had taken place thirty-two years before, touching the legitimacy of the plaintiff’s mother. In Todd v. The Earl of Winchelsea, 3 Car. & Payne 387, the testimony of the deceased witness touching a complicated matter, was read from the notes of a short-hand writer. And in The King v. Whitehead, 1 Car. & Payne 67, the evidence of a witness for the prosecution examined on a former trial, who had since died, was read from the Lord Chief Justice’s notes, without a pretense that the notes gave the identical words of the deceased witness.

The doctrine, that the testimony must be in the words of the deceased witness, appears to have taken its origin from a dictum of Lord Kenyon, in the case of Rex v. Jolliffe, 4 Ter. Rep. 385, as follows : “ The evidence which the witness gave on a former trial, may be used in a subsequent one, if he die in the interim, as I remember was agreed on all hands, on a trial at bar in the instance of Lord Palmerston; but as the person who wished to give Lord Palmerston’s evidence could not undertake to give his words, but could merely swear to the effect of them, he was rejected.” This remark of Lord Kenyon, which appears to have been thrown in rather by way of illustration than otherwise, has been adopted by some elementary writers on evidence, and given as the true rule. Lord Kenyon mentions a case not to be found reported in any book, where he says, it was agreed on all hands,” that evidence of the testimony of a deceased witness at a former trial was admissible. Now, it would not be a little remarkable, that this learned judge should lay it down as a general rule conceded on all hands, that such testimony was admissible, and yet, in the same breath, annex to it a restriction which would destroy its practicability, and in more than ninety-nine cases in a hundred, wholly prevent its application; yet such would be the effect of his ruling,, if he is to be understood as saying that what a witness swore to on a former trial, cannot be given in evidence unless it be ipsissimis verbis. But the remark is not clear and precise, and is susceptible of a different construction. The evidence was rejected, as it would appear, because the witness, not undertaking to give the words of the deceased witness, could merely swear “ to the effect of them.” The witness was rejected because he could do no more than give “ the effect ” of the deceased witness’ testimony.- Now, the effect of testimony is the conclusion or consequence produced by it, on the mind of the hearer. It would be clearly too loose a rule to allow a witness, in detailing the evidence of a deceased witness on a former trial, to give the mere effect of it as he understood it. The substance of the testimony may be given in other words conveying the same meaning, without giving the mere effect of the testimony. This is the construction which appears to have been given to the remark of Lord Kenyon by the court of appeals in Virginia, in the case of Caton v. Lenox, 5 Rand. Rep. 36.

Mr. Starkie, speaking of the strictness of the rule inferred from Lord Kenyon’s remark, expresses his doubts “ whether so great exactness' is necessary,” and adds, “ even an indictment for perjury sets out the substance only.” 2 Starkie’s Ev. 280, note n. Phillips lays down the strict rule, “ but thinks the words of the rule susceptible of such a construction as shall let in the substance, and requiring certain of the exact words only, as in stating a conversation, may be found requisite to a safe understanding of its substance.”

Greenleaf, the most recent standard author on the law of evidence, says, that the strictness which formerly required the precise words of the deceased witness, is not now adhered to, and that it is “ generally considered sufficient, if the witness is able to state the substance of what was sworn on the former trial.”

The supreme court of Maryland, in Bowie v. O’Neale, 5 Har. & John. 226, and also the supreme court of North Carolina, in Bellinger v. Barnes, 3 Dev. 460, take a distinction between the substance and the effect of the testimony of the deceased witness, allowing the substance to be given, but not the effect. This distinction would admit of a practicable application of the rule as stated by Lord Kenyon, and make it consistent with the other English decisions.

In Massachusetts, the rule requiring the statements of the deceased witness at a former trial, to be ipsissimis verbis, is laid down in its utmost strictness, in the case of The Com. v. Richards, 18 Pick. 434. And in Warren v. Nicols, 6 Metcalf Rep. 261, the doctrine was affirmed, Hubbard, J., dissenting. In the latter case, however, the majority of the court drew a distinction between giving the substance of the deceased witness’ testimony, and the substance of his language; requiring only that his language should be stated substantially, and in all material particulars, and not ipsissimis verbis. It is not .very easy to perceive how this distinction can be reconciled in this regard, with the decision in the case of The Com. v. Richards.

In the State of Indiana, the rule laid down in Richards’ Case, in Massachusetts, was adopted in Ephraims v. Murdock, 7 Blackf. Rep. 10.

In the State of Pennsylvania, the doctrine, that what a deceased witness has sworn on a former trial cannot be admitted, unless proven in his precise words, is distinctly and directly overruled in a series of adjudications. In Cornell v. Green, 10 Serg. & Rawle, Mr. Justice Gibson, in his cogent opinion exposing the fallacy of requiring the testimony of the deceased to be given ipsissimis verbis, says: “ I cannot see why the same necessity, which opens the way for secondary evidence of the very words of a deceased witness, should not open the way also for the substance of his testimony when his very words cannot be recollected ; or discover the policy of a rule, which should shut out the little light that is left, when it is all that is left, merely because it may not be sufficient to remove everything like obscurity.” This is in accordance with Miles v. O'Sara, 4 Binney Rep. 108 ; Wolf v. Wyeth, 11 Serg. & Rawle 149 ; Watson v. Gilday, 11 Ib. 337 ; Chess v. Chess, 17 Ib. 409; Moore v. Pearson, 9 Watts & Serg. 50.

In Maryland, it is held sufficient that the witness called to testify, “ prove facts, that is to say, that the witness who is dead, in giving his testimony, deposed to certain facts without giving the words of the decedent.” Garrott v. Johnson, 11 Gill. & Johns. 173.

In the State of Vermont, it is held, that it is not necessary to prove the exact language used by the deceased witness, but sufficient if the substance of the testimony as given by him be detailed. The State v. Hooker, 17 Vermont Rep. 659.

To the same effect are the cases of Gildersleeve v. Caraway, 10 Ala. Rep. 260 ; Kendrick v. The State, 10 Hump. Rep. (Tenn.), above referred to; Caton v. Lenox, 5 Randolph Rep. (Virginia), above referred to; Sloan v. Somers, 1 Spencer’s Rep. 66, New Jersey; Ballenger v. Barnes, 3 Dev. 460, North Carolina ; and Young v. Dearborn, 3 Foster’s Rep. (New Hampshire) 372.

In Ohio it has been settled, in a well considered decision in the case of Wagers v. Dickey, 17 Ohio Rep. 440, that it is sufficient for the witness to give the substance of what the deceased witness testified on the former trial.

It is apparent, from a review of the decisions on this question, that the weight of authority is very decidedly against the rule, which requires an exact recital of the words used by the deceased witness. The difficulty which appears to have troubled courts so long on the question, has been a controversy about words, rather than facts. The efficacy of the testimony consists, not in the mere words used, but the matters of fact stated by the deceased witness. If the facts stated by the deceased witness on the former trial, can be narrated with substantial accuracy in all their material particulars, there would seem to be no good reason for cavil about the very words. There is a distinction, however, between narrating the statements made by the deceased witness, and giving the effect of his testimony. This may be illustrated thus: If a witness state that A, as a witness on a former trial, proved the execution of a written instrument by B, that would be giving the effect, which is nothing else than the result or conclusion produced by A’s testimony. But if the witness state, that A testified that he had often seen B write, and was acquainted with, his hand writing, and believed that the name subscribed to the instrument in writing exhibited was B’s signature, that would be giving the substance of B’s testimony. While, therefore, a witness should not be trammeled by a rule restricting him to the words used by the deceased witness, he should not be allowed the latitude of giving the mere effect or result of the deceased witness’ testimony. The rule of competency requires a substantial narration of all the material facts staged by the deceased witness on the former trial, and in the order in which he gave them, so far as may be necessary to a correct understanding of his meaning.

It is insisted, however, that if this be the rule in civil cases, it does not apply in criminal cases, especially cases affecting life. An opinion appears prevalent with a part of the legal profession in this country, that in criminal prosecutions greater strictness of proof is required, and nicer and closer exceptions allowed, than in civil cases. It is very true, that in criminal cases, and especially those involving the life of the accused, courts proceed with greater caution, particularly in regard to the degree or quantity of the evidence necessary to a conviction. But whatever indulgence the humanity and tenderness of judges may have allowed in practice in favor of life or liberty, it appears to be well settled, that the rules of evidence, in civil and in criminal cases, are the same. Russell, in his standard elementary work on crimes and misdemeanors, 2d vol., 725, says: “ There is no difference as to the rules of evidence between criminal and civil cases. What may be received in one case may be received in the other; and what is rejected in the one ought to be rejected in the other. A fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence.” Rex v. Watson, 3 Eng. C. L. Rep. 291 ; Murphy’s Case, 34 Eng. C. L. Rep. 402 ; Roscoe’s Criminal Ev. 1; U. S. v. Britton, 2 Mason’s Rep. 464 and 468 ; Greenl. on Ev., 1 vol., sec. 65.

In regard to the very question under consideration in the case before us, no distinction has been drawn in any of the adjudicated cases, as to the rule of evidence between civil and criminal cases, except that which has been claimed to result from the operation of the provision in the bill of rights; and that, if it prevailed, would amount'to an entire interdict of the testimony in criminal cases. I know of no case where it has been held, that while the substance of what a deceased witness testified on a former trial is competent in civil cases, such testimony must be restricted to the exact words, in criminal cases. The rule of evidence has been treated as one applicable alike to either class of cases; and a considerable proportion of the cases above cited, where the rigid rule has been repudiated, are criminal cases.

And there does not seem to be any well founded reason for requiring the exact words of the deceased witness in this testimony, and dispensing with the rule in other instances, in criminal cases, where a witness is called on to prove words spoken, as the confessions or admissions of the party, statements which are a part of the res gesta, the declarations of co-conspirators, testimony in respect of which the accused has been indicted for perjury, declarations made in extremis, and numerous other instances of words spoken, where nothing more than the substance has ever been required. The same reason which would require the precise words in the one instance, would equally apply in the other; and the same principle which would admit the substance to be given in the one instance, would admit it in the other.

3. It is insisted that the court erred in refusing to rule out the testimony of Logan, on the ground that it appeared, from his own statements, that he was unable to give the entire substance of all the testimony of the deceased witness. There is no foundation shown for this allegation of error, unless it be in reference to the rebutting testimony. It is true, the bill of exceptions discloses several circumstances in the testimony of Logan, on his examination in chief, and on cross-examination, tending to weaken confidence in the accuracy or certainty of his testimony, which was very proper for the consideration of the jury. But it is not shown in Logan’s own testimony, so far as set out in the bill of exceptions, that there was any matter in the examination in chief, or cross-examination of Mary Clinch, shown to have been material to the issue, which was omitted by Logan, or which he was unable to state. It appears that “ his impression was very indistinct as to the reason Mary Clinch gave for allowing James Summons to tie up her foot;” that “he did not recollect whether she was asked about the kind of rag that was used or not; ” “that he thought she said there was no meat got for supper, but his notes said she could not tell; ” that he did not recollect some of the questions asked, etc. Had the question been, whether Logan had given the testimony of the deceased witness in ipsissimis verbis, this matter might have been material; but, as it is, the materiality of it, except as matter for the consideration of the jury, is not disclosed in the bill of exceptions. It was incumbent on the plaintiff in error to state, in his bill of exceptions, enough of the case to show the materiality of the subject matter of his complaint, before he could entitle himself to a reversal of the judgment.

But it appears that Logan was called to rebut the testimony offered in the defense, by way of impeaching a witness for the accused; and, with this view, he undertook to narrate the testimony of Mary Clinch, given for the same purpose, and at the same stage of the case, on the former trial. And it was when giving this testimony in rebutter, that Logan admitted that he had no recollection of a certain passage, in his notes of the testimony of the deceased witness in- rebutter on the former trial; and, in consequence of which, he was unable to explain the connection in that part of the testimony. This admission of Logan, according to the rule of competency insisted on, entitled that party to have the whole of Logan’s testimony in rebutter ruled out, but no more. It could not have affected the testimony given by him in chief. And, upon this ground, the court was not asked to exclude from the consideration of the jury Logan’s'testimony in chief, or even all his testimony in rebutter. The court was asked, however, to rule out that part of his testimony in rebutter, which was connected with the passage in his notes which he could not explain ; and the court having accordingly ruled out all that part of Logan’s testimony to which objection was made, the accused, cannot now complain, that the court did not sua sponte rule out the balance of Logan’s rebutting testimony, which it was the right of the accused, as it seems to have been his choice, at the time, to leave before the jury.

Again, it is urged that the competency of Logan as a witness, depended on his ability to narrate all that Mary Clinch had testified to on the former trial, and that, it having been made to appear by the testimony in the defense, that he had omitted to state certain matters to which she had testified, his testimony should have been for that reason rejected by the court, and excluded from the consideration of the jury. It appears from the bill of exceptions, that two witnesses, called in the defense, testified that they had heard Mary Clinch testify on the former trial, took notes of her testimony, could not state the substance of all her testimony, but that each testified to “ certain matters ” stated by her in her testimony, whicli were omitted by Logan in his testimony. What these certain matters were, which are said to have been omitted, and whether they were material to the issue or not, is not disclosed in the bill of exceptions.

When a witness is called to testify to the matter related by a deceased witness on a former trial, it is essential to his competency, first, that he should have been present, and heard the deceased witness testify ; and second, that he have such accurate recollection of the testimony that he will, on his oath, assume or undertake to narrate it in such detail as the rules of evidence require. These are the tests of the competency of the witness. Upon this, there does qot appear to be any conflict in the adjudicated cases, either in England or in this country. Miles v. O’Hara, 4 Binney R. 108 ; Pegram v. Isabell, 2 Hen. & Mumf. R. 193 ; 2 Cowan & Hill’s notes on Phillips’ Ev. 578.

Now, Logan swore that he was present on the former trial, and heard all the testimony given by Mary Clinch, and that he could give the substance of all. she testified from his recollection, aided by reference to his notes. The requirements of the rule, therefore,- touching his competency as a witness, being thus satisfied, he was very properly permitted to testify. If any objections, therefore, can be made on the ground of competency, they must have reference to the competency of the testimony given by Logan, and not to his competency as a witness. It would seem to be important to an accurate understanding of the subject before us, that the distinction between the competency of the witness and the competency of the evidence should not be lost sight of.

It is essential to the competency of this kind of evidence, 1st, that the statements on the former trial, given by the witness since deceased, should have been on oath; 2d, between the same parties, and touching the same subject matter; 3d, on an occasion where opportunity for cross-examination was given the person against whom it is now offered; and 4th, that the matter sworn to by the deceased witness on the former trial be stated in all its material parts. These are the tests of the competency of the evidence to be deduced from the reported adjudications touching the subject.

It was essential, therefore, to the competency of this testimony that the substance of all the testimony of the deceased witness should be given. By testimony is meant, of course, what was material, for any matters stated not material, were not evidence.

If it should appear, therefore, that any material part was left out, or if it should appear that, although the substance of all the testimony given by the deceased witness in chief had been stated, yet that the testimony on cross-examination had been omitted, the whole should be excluded as incompetent. On the trial of this case, had it been apparent to the court when the evidence in chief on the part of the State was closed, that all the testimony of the deceased witness on the former trial had not been given, but that material parts of it had been omitted, it would have been the duty of the court to have ruled it out as any other incompetent evidence. But if it had become a question in the case, whether all which the deceased witness had sworn to, had been stated or not, the determination of that question fell properly within the province of the jury, and would have been preliminary to the consideration of this evidence in the case. This is not unusual in practice. It is a frequent‘occurrence, that the authority of an agent becomes a question of fact to be passed on by the jury, preliminary to the consideration of the declarations or acts of the agent, as evidence against a party in the case.

And on the trial of this case in the district court, after testimony had been given on the part of the defense, tending to show that “ certain matters ” in the testimony of Mary Clinch on the former trial, had been omitted in the statement of her testimony by Logan, it became a question for the jury, in deciding on the weight of the evidence, whether, in respect to these matters, (if they were material,) the testimony for the State, or that on the part of the defense, was to be relied on. And in this connection it may be observed, that in view of the fact that Mary Clinch, while living, had testified on this subject matter on two different occasions, at each of which she had been subjected to a searching cross-examination, running into great minuteness of detail, by able and astute counsel on behalf of the accused, marking and noting every expression made by the witness; and that, after-wards, Logan, when called on two several occasions, to narrate what she had sworn to, was subjected to a like scrutiny in his examination, it is not a little remarkable, that a wider field was not opened for controversy about conflict, confusion and uncertainty in the testimony, than that which is disclosed in the bill of exceptions.

If, on the trial of the cause below, the accused had succeeded in establishing by the testimony given in the defense, that Logan had failed to detail all the material parts of the testimony of Mary Clinch on the former trial, and that the same was not in evidence before the jury, all the testimony given to prove what Mary Clinch had sworn to, should have been excluded or laid out of consideration by the jury. And to this effect the district court very properly instructed the jury. But if, in proving that Logan had omitted to state certain matters, to which Mary Clinch had deposed, the accused, by his own witnesses, supplied the deficiency and proved the omitted matters, so that all the testimony of Mary Clinch thus came before the jury, the question arises whether this was not sufficient for the competency of the testimony. And this brings me to the last inquiry in the case.

4th. Was there error in the charge of the court to the jury, that if they should find that Logan had not stated the substance of all that the deceased witness had sworn to on the former trial, they should not, for that reason, exclude it from their consideration, provided, that by taking his testimony in connection with the testimony of other witnesses, they were satisfied that they had the substance of all the testimony given by Mary Clinch on the former trial ?

If the requirement, that the matter sworn to by the deceased witness should be given in all its material parts, went to personal competency of the witness, or each witness called on to testify to it, instead of the competency of the evidence, then, whenever in any stage of the case, it should be made to appear that the witness had failed in any material part, to give the whole matter to which the deceased person had deposed, the witness would have to be rejected as incompetent, and his testimony excluded. But inasmuch as this requisite goes to the competency of the evidence, a very different question arises. True, it is essential to the competency of. the evidence, that the matter sworn to by the deceased witness, be given in all its material parts. But since the rule applies only to the competency of the evidence, what difference does it make in reason, whether it all come, from one or more witnesses ? Eor instance, suppose that one witness heard all the testimony of the deceased witness on the former trial given on the examination in chief, and no more, while another witness heard all the testimony given on the cross-examination. Shall the testimony be excluded, because it cannot all be given by one witness, when it can be all, with equal accuracy and certainty, had, in distinct parts, from two witnesses ? The requirement of the rule is satisfied, provided all that the deceased witness had sworn to be given to the jury'. There can be no substantial reason for requiring it all from one witness. And the rule as to thé competency of the witness is answered, if he heard the deceased witness testify, and will, upon his oath, undertake to state the whole, or all' of any particular part, which he is called to prove. 1 Greenl. Ev., sec. 165. So that, if a witness called to prove either the whole, or any particular part, of what the deceased witness swore to, by mistake omits some matter, which is afterwards supplied by another witness the competency of the evidence is not, on this account, affected. This view of the subject is fully sustained by the decision of the supreme court of North Carolina in Ballenger v. Barnes, 3 Devereaux Rep. 460. In that case, after the plaintiff had given evidence of the testimony of the deceased witness on a former trial, the defendant proposed to stop the progress of the plaintiff’s evidence, and prove by other witnesses that the deceased witness had deposed to other matters which the plaintiff’s witness had not stated. The court, however, refused to allow this; but after the plaintiff had closed his testimony, the defendant was allowed to give this evidence, and accordingly did prove other facts deposed to by the deceased witness on cross-examination, which had not been stated by the plaintiff’s witness, and “which were material” to the defendant. And for this reason, the defendant then asked the court to direct the jury to disregard all the testimony proving what the deceased witness had swoi’n to, which the court refused to do. The supreme court of North Carolina, after full argument, and in a well considered case, held this not to be error.

The supreme court of Vermont, in the case of The State v. Hooker, heretofore referred to, has substantially recognized the same doctrine. There are numerous other cases bearing some analogy to this; and I have been unable to find a single case, where it has been held to be essential to the competency of such evidence, that the statements of the deceased witness on the former trial, be given in full by a single witness, or confined to the testimony of one witness.

Our conclusions, upon the several questions presented' in this case, have been reached on the most mature and patient investigation, and with a full sense of the importance of the case to the accused on the one side, and to the safety of the community on the other. And it is highly satisfactory to the majority of the court concurring in this opinion, to be able to say, that they are free from all doubt in the conclusions which have beemexpressed.

Judgment of the district court affirmed, and Friday, the 17th day of April next, appointed as the day for the execution of the sentence.

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Dissenting Opinion

Bowen, J.,

dissented, holding—

1. That the admission of Logan to prove what a dead witness had sworn to on a former trial, was a violation of that clause of the 10th section of our bill of rights, which provides “ that in. any trial in any court, the party accused shall be allowed to meet the witnesses face to face.

2. The testimony of Logan, as detailed by himself, showed his inability to give the substance of all that was sworn to by the deceased witness; wherefore he was disqualified to give evidence in that particular, against the prisoner.

3. The court below erred in directing the jury that if Logan had failed to give the substance of all of the dead witness’ evidence, that therefore they should not entirely reject the testimony, provided that taking his testimony and that of the other witnesses who attempted to detail the evidence given by the deceased witness, they were satisfied that they had the substance correctly, of all her testimony.

4. The jury should have been instructed that if they found that Logan had not given correctly the substance of all the former testimony, (either from his own disclosures made upon the witness stand, or from the examination of other witnesses called by the prisoner,) they should, for that reason, reject altogether his statements, and not regard them as evidence against the prisoner.

5. The rule has never been carried so far as to allow testimony of a witness on a former trial of the cause, who has since deceased, to be given in evidence in part by one witness, who may recollect a portion, but not the whole of it, and in parts by other witnesses who may be able to detail other portions less than the whole of it. That which confers on a witness competency in such cases, to detail any of the former testimony, is his ability to give from memory the substance of all that the deceased witness testified throughout the entire examination of such witness.