tions have been once read, may be proved by the witness's admission, or, if it be material to the issue, by other witnesses who were present. This appears to be the view taken by Erle, J., in R. v. Curtis, 2 C. & K. 763, 61 E. C. L. These rules must now be read in connection with 28 & 29 Vict. c. 18, ss. 4, 5, and it seems to be doubtful [*68 whether they are any longer in force. See Tayl. on Ev., p. 1255, 6th ed. See post, Examination of Witnesses.

It has been suggested that there is a difference between adding to and varying depositions; per Alderson, B., in R. v. Coveney, 7 C. & P. 667, 32 E. C. L.; and there can be no doubt that, as a general principle, you may add to but not vary written evidence. See infra. The question is whether that principle is applicable to the case now under consideration. At common law the return of the magistrate would not be even admissible to contradict a witness, any more than a judge's notes in a civil case; but ever since the statute of the 1 & 2 P. & M. c. 13, this return has been considered as admissible; but on the general principles of evidence, this would not exclude additions which were

not variations.

Depositions when used as substantive evidence-how proved. When depositions taken before the magistrate are used to supply the testimony of an absent witness, there is then considerable authority for saying that the return of the magistrate is the best and only evidence as to what was said before him. That it is the best evidence has always been acknowledged, and was laid down by Lord Mansfield in R. v. Fearshire, 1 Lea. 202; and that it is the only evidence has also generally been acknowledged, and was so said by Mr. Justice Holroyd in R. v. Thornton, 2 Ph. & Arn. Ev. 104, 10th ed. (n).1

As already pointed out, there is a difference between adding to and varying written evidence, and it has been sometimes urged that even where a deposition is used as substantive evidence, it might be added to though not varied. But it must be recollected that, under the statute 11 & 12 Vict. c. 42, s. 17, infra, if the magistrates do their duty, the return of the depositions will be both exclusive and inclusive; and though it cannot be denied that, on general principles of law, a deposition may be added to, there are very sound reasons why an exception should be made in this particular case; for there might be very great danger in trusting to the oral repetition of testimony, which, under all circumstances, must be less satisfactory than that ordinarily given.

These considerations do not apply with equal force to depositions produced for the purpose of contradicting or lessening the credit of a witness. For, in the first place, many matters which do not appear material to the charge at the preliminary inquiry, and which, therefore, would not be returned, may become exceedingly important for the purpose of testing the truth of the testimony of a witness; and, moreover, the witness being himself then and there present, his own memory and conscience can be searched as to what was really said before the magistrate.

1 1 Wright v. State, 50 Miss. 332; Cicero v. State, 54 Ga. 156.

The result suggested is, that to discredit a witness the depositions may be added to but not varied, but, when they are used as substantive evidence, the return of the justices is final and conclusive. There is still one difficult question which is not unlikely to arise, and which has not yet been discussed; i. e., whether, if no deposition be returned by the magistrate, or one which from some informality cannot be used, whether in any case other evidence ought to be received of what was said by the witness. It will scarcely be denied that, on general principles, all the usual evidence would be let in in such a case, but it is unnecessary to repeat the arguments which go to show that, as substantive evidence, nothing should be received, *which is not returnable by the magistrate. See also the remarks, ante, pp. 61, 62, 63.

*69]

Depositions when admissible as substantive evidence. Depositions are admissible as substantive evidence at common law, should the witness be either dead,' Hale, P. C. 305; R. v. Westbeer, Lea. C. C.

1 So the evidence given by a witness, since dead, on a former trial, is competent. Wilber v. Selden, 6 Cow. 162; Johnston v. State, 2 Yerg. 58; Watson v. Lisbon Bridge, 14 Me. 201; State v. De Witt, Hill. S. C. 282; Keecher v. Hamilton, 3 Dana, 38; Kelley's Exr. v. Connell's Adm., 3 Dana, 533; Robson v. Doe, 2 Blackf, 308. [Owens v. State, 63 Miss. 450; Strickland r. Hudson, 55 Miss. 235; Summons v. State, 5 O. St. 325; Barnett v. State, 54 Ill. 325; Commonwealth v. Richards, 18 Pick. (Mass.) 434; Broyles v. State, 47 Ind. 251; Brown v. Commonwealth, 73 Pa. St. 321. Even though in the previous trial the jury was empaneled under an unconstitutional statute. State v. Johnson, 12 Nev. 121.] In Virginia it has been held inadmissible in criminal cases. Finn v. Commonwealth, 4 Rand. 501. [Under the Texan code such evidence may be introduced both by the State and by the accused. Johnson v. State, 1 Tex. App. 333; Black v. State, Id. 368.] In a criminal case the public prosecutor will not be allowed to use the testimony given by a witness at a former trial of the same indictment, though he be absent from the State. People v. Newman, 5 Hill, 295. So the evidence is admissible where the witness has become unable to speak from paralysis. Rogers v. Raborg, 2 G. & J. 54. [But not where he is unable to attend the trial from sickness merely. McClain v. Commonwealth, 99 Pa. St. 86.] It is not enough that he has forgotten. Drayton v. Well, 1 N, & McC. 409. Nor that he has become interested. Chess v. Chess, 17 S. & R. 409; Irwin r. Reed et al., 4 Y. 512. Nor that he has been convicted of an infamous crime. Le Baron v. Crombie, 14 Mass. 234, Nor it seems that he is not to be found. Wilbur v. Selden, 6 Cow. 162; Arderry_v, Commonwealth, 3 J. J. Marsh. 185. Contra, Magill v. Cauffman, 4 S. & R. 319; Rogers v. Raborg, 3 G. & J. 54; Pettibone v. Derringer, 4 Wash, C, C. 215; Reed v. Bertrandt, Id. 538. [The testimony of a witness for the defence, when reduced to writing at the preliminary examination, is admissible at the trial, when the witness cannot be produced. State v. Stewart, 34 La. Ann. 1037. By California statute a deposition of an absent witness taken before a magistrate may be read at the trial. People v. Oiler, 66 Cal. 101.] The very words of the witness must be sworn to. United States v. Wood, 3 Wash. C. C. 440; Wilbur v. Selden, 6 Cow. 162; Ballenger v. Barnes, 3 Dev. 460; Bowie v. O'Neill et al., 5 H. & J. 266. But contra, Caton et al. v. Lennox et al., 5 Rand. 31; Cornell v. Green, 10 S. & R. 14. The whole examination must be given. Wolf v. Wyeth, 11 S. & R. 149. See the following cases as to notes of counsel. Lightner v. Willie, 4 S. & R. 203; Watson v. Gilday, 11 Id. 337; Chess v. Chess, 17 Id. 409; Miles v. O'Harra, 4 Binn. 110; Foster r. Shaw, 7 S. & R. 156. [On stenographers' notes. People v. Sligh, 48 Mich. 54; People v. Qurise, 59 Cal, 343; People v. Chung Ah Chue, 57 Cal. 567.] The postea of the former trial must be produced. Beales v. Guernsey, 8 Johns. 446. It is error to prove what a deceased witness testified to upon a former trial between the same parties, without proving the fact of such trial by the record; but the error is cured if such record proof be produced before the close of the evidence. Weart v. Hoagland, Adm., 2 Zab. 517. When a witness, who has once testified upon the trial of a case, has deceased, his tes

12; R. v. Bromwich, 1 Lev. 180; Salk. 281; B. N. P. 242; or be in such a state as never to be likely to be able to attend the assizes; R. v. timony may be used upon a subsequent trial of the same case, provided the substance of what is testified, both in chief and on cross-examination, can be proved in the very words used by him. Marsh v. Jones, 21 Vt. 378. It is not enough that the former trial was upon the same general, subject; the point in issue must be the same. Melvin v. Whiting, 7 Pick. 79. [See State r. McNeill, 33 La. Ann. 1332; contra, McClain v. Commonwealth, 99 Pa. St. 86.] So evidence of what a deceased witness swore on a question of bail, is inadmissible on the trial of the cause. Jackson et al, v. Winchester, 4 Dall. 206. See Jessup r. Cook, 1 Halst 434. Where a person is offered as a witness to prove the testimony of a deceased witness on a former trial of the same cause, he cannot be permitted to testify, if he states that he can give only the substance of such testimony, but not the language of the witness. Warren v. Nicholls, 6 Metc. 261. Where, in the trial of a cause, it is necessary and proper to prove what a deceased witness swore on a former trial between the same parties, where the issue and matter in controversy is the same, it is sufficient for a living witness, who is called to testify, to prove that the deceased witness swore to certain facts, and he need not prove the precise words employed by such deceased witness. Garratt v. Johnson, 11 G. & J. 173. [A statement thereof in a bill of exceptions would be inadmissible as contravening the constitutional right of the accused to meet the witness face to face. Kean r. Commonwealth, 10 Bush (Ky.) 180. But the witness may use the bill of exceptions to refresh his memory. State v. Able, 65 Mo. 357.] Where the merits were tried on a former suit, but the verdict was against the plaintiff, solely on the ground of his incapacity to recover for want of interest in the note sued upon, the evidence given by witnesses then examined is admissible, if they are out of the State. Hacker v. Jamison, 2 W. & S. 438. The absence of a witness from the State, so far as it affects the admissibility of secondary evidence, has the same effect as his death. [In civil issues.] Alter v. Berghaus, 8 W. 77. [Emig v. Diehl, 76 Pa. St. 359. But not in criminal trials. Sullivan v. State, 6 Tex. App. 319; Collins v. Commonwealth, 12 Bush. (Ky.) 271.] If a witness be out of the State, notes of his testimony, proved to have been correctly taken upon a former trial of the cause, may be read in evidence. But if it appears that the witness absented himself from that trial before he was fully examined, his testimony given cannot be read in evidence Noble v. McClintock, 6 W. & S. 58. A party is not entitled to the benefit of the testimony of a witness who dies after he has been examined and testified, and before the opposite party has had an opportunity to avail himself of a cross-examination. Kissam v. Forrest, 25 Wend. 651. [See People . Penhollow, 42 Hun. (N. Y.) 103.] The testimony of a witness since deceased, on a former trial, taken down in writing and sworn to, though not from recollection, may be given in evidence. Van Buren v. Cockburn, 14 Barb. 118; Riggins v. Brown, 12 Ga. 271; Walker v. Walker, 14 Id. 242. In a criminal case the prosecutor will not be permitted to use the testimony given by a witness at a previous trial, although he be absent from the State. People v. Newman, 5 Hill, 295. The deposition of a witness taken before the examining court, cannot be used against a prisoner on trial for murder, it being proved that the witness is beyond the jurisdiction of the court, unless it is also proved that such absence was caused by the defendant. State v. Houser, 26 Mo. 431. [U. S. v. Reynolds, 1 Utah I. 319; Owens v. State, 63 Miss. 459; Collins v. Commonwealth, 12 Bush (Ky.) 271; People v. Newman, 5 Hill (N. Y.) 295; Finn v. Commonwealth, 5 Rand. (Va.) 701; Brogy v. Commonwealth, 10 Gratt. (Va.) 722; Gerhauser v. N. B. Ins. Co., 7 Nev. 174; State v. Houser, 26 Mo. 431.] When a witness for the prisoner is absent from the State at the time of the second trial, it is not competent for the prisoner to show what the witness swore to at the first trial. Brogy v. Commonwealth, 10 Gratt. 722. The notes of counsel of a deceased witness on a former trial between the same parties, are evidence when proved to be correct in substance, although the counsel does not recollect the testimony independent of his notes. Rhine v. Robinson, 3 Cas. 30; Jones v. Ward, 3 Jones' Law, 24; Ashe v. De Rosset, 5 Id. 299; Crawford v. Loper, 25 Barb. 449; Wright v. Stowe, 4 Jones' Law, 516; Summons v. State, 5 O. St. 325. Contra, Yancey v. Stone, 9 Rich. Eq. 429. The exact words of a deceased witness need not be proved. It is sufficient if the substance of all he said on the examination and cross-examination in relation to the subject-matter in controversy be shown. Kendrick v. State, 10 Humph. 479; Sharp v. State, 15 Ala. 749; Davis v. State, 17 Id. 354; State v. Hooker, 17 Vt. 658. When the evidence of a deceased witness is offered, the substance of his whole testimony must be proved; if any parts of it are irrelevant the court may reject them.

106

Hogg, 6 C. & P. 176, 25 E. C. L.; R. v. Wilshaw, Carr. & M. 145, 41 E. C. L.; or if the witness be kept away by the practices of the prisoner; R. v. Guttridge, 9 C. & P. 471, 38 E. C. L. The admissibility of depositions is now governed by the 11 & 12 Vict. c. 42, s. 17, which provides that in all cases where any person shall appear or be brought before any justice or justices of the peace, charged with any indictable offence, whether committed in England or Wales, or upon the high seas, or on land beyond the sea, or whether such person appear voluntarily upon summons, or have been apprehended, with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit such accused person to prison for trial, or before he or they shall admit him to bail, shall, in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement on oath or affirmation of those who shall know the facts and circumstances of the case, and shall put the same into writing, and such depositions shall be read over to, and signed respectively by, the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same; and the justice or justices before whom any such witness shall appear to be examined as aforesaid, shall, before such witness is examined, administer to such witness the usual oath or affirmation, which such justice or justices shall have full power and authority to do; and if, upon the trial of the person so accused as first aforesaid, it shall be proved by the oath or affirmation of any credible witness, that any person whose deposition shall have been taken as aforesaid is dead, or so ill as not to be able to travel; and if it also be proved that such deposition was taken in the presence of the person so accused, and that he, or his counsel or attorney, had a full opportunity of cross-examining the witnesses, then, if such deposition purport to Mayer v. Doe, 32 Ala. 699; Emery v. Fowler, 33 Me. 326. [The witness may be asked in cross-examination to state the whole testimony; and the counsel need not state what he expects to prove by this question. Harness v. State, 57 Ind. 1.] It is sufficient if a witness can give the substance of the evidence of a deceased witness at a former trial, although not in the same words. Rivereau . St. Amet, 3 Ia. 118. As to the deposi tion of deceased witnesses before the examining magistrate. State v. Valentine, 7 Ired. 225. Proof of what a deceased witness testified before the committing magistrate is admissible, though not reduced to writing. State v. Hooker, 17 Vt. 658; Davis v. State, 17 Ala. 354. [But not the affidavit of the relatrix instituting the prosecution. Broyles v. State, 64 Ind. 460. So also the testimony of a witness who has become insane is admissible. Marler v. State, 67 Ala. 55.] The deposition of a deceased witness is not admissible, unless the prisoner was present. State v. Campbell, 1 Rich. 124; Collier v. State, 8 Eng. 676. Depositions cannot be used in criminal trials. Dorninger v. State, 7 Smed. & M. 475. Evidence of the testimony of a deceased witness at a former trial of a criminal charge is admissible at a second trial for the same offence. Pope r. State, 22 Ark. 371; State v. Staples, 47 N. H. 113. [So also the cross-examination of a defendant obtained in one criminal prosecution is admissible as evidence against him in another criminal prosecution. State v. Witham, 72 Me. 531.] The circumstance that a witness has forgotten the facts to which he had formerly testified in the cause, does not render evidence of his former testimony competent, Robinson v. Gilman, State v. King, 43 N. H. 295. S. Nor that witness did not respond to the summons.

86 N. C. 603.

Where the terms on which the testimony taken at a preliminary examination is admitted on the trial, are prescribed by statute, those terms must be strictly complied with. Pinkney v. State, 12 Tex. App. 352; Evans v. State, Id. 370.

be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution without further proof thereof, unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same. By the 30 & 31 Vict. c. 35, s. 3, provision is made for taking the depositions of witnesses for the defence, and by sect. 5 for the allowance of their expenses. By sects. 6 & 7 provision is made for taking the depositions of persons dangerously ill and not likely to recover, and for rendering such evidence admissible in the event of the death of such persons. See Appendix of Statutes.

None of the previous statutes (1 & 2 P. & M. c. 13; 2 & 3 P. & M. c. 10; 7 Geo. 4, c. 64) contained any directions as to when the depositions should be considered admissible. It will be observed that only two cases are mentioned in the above statute, "where the witness is dead, or so ill as not to be able to travel." It is not said in the statute that the deposition would be admissible if the witness were kept out of the way by the procurement of the prisoner, a case well *established at common law. See Tayl. on Ev., p. 465, 6th ed.

However, in R. v. Scaife, 2 Den. C. C. 281; 17 Q. B. 208, [*70 where the prisoner was indicted together with Thomas Rooke and John Smith for larceny, evidence was given that by the procurement of Smith one of the witnesses for the prosecution had been kept out of the way, and her deposition was tendered; the evidence was admitted to be receivable as against Smith, but it was said that it was no evidence against Scaife and Rooke. The case came before the Court of Queen's Bench, and it was held that the learned judge ought to have told the jury that the evidence applied to the case of Smith only, and not to that of either of the other prisoners. Incidentally, therefore, the admissibility of the depositions as against a prisoner who has himself procured the absence of a witness, is recognized by this case.

There does not appear to be any criminal case in which the depositions have been admitted on the ground of the witness being insane either before or since the statute. In civil inquiries this has been considered a good ground of admission. R. v. Eriswell, 3 Term. Rep. 720; and it is said in R. v. Marshall, Carr. & M. 147, that Coleman, J., thought it a good ground in criminal cases also. It is not a sufficient ground of admission that the witness cannot be produced on account of his absence in a foreign country. R. v. Austen, 25 L. J., M. C. 48.

As to when a witness will be considered so ill as not to be able to travel, the following cases have been decided. Where the physician stated that the witness could not speak or hear from paralysis, and that if brought to court he would not be able to give evidence, yet that he might be brought there without danger to life, though he, as his physician, would not permit the witness to roam abroad if he knew it, it was held by the Court of Criminal Appeal that the deposition was rightly received. R. v. Cockburn, Dears. & B. C. C. 203. There may be incidents in regard to a state of pregnancy which may bring the case within the statute. R. v. Stephenson, 1 L. & C.