New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1842-08-24
Supreme Court-The People . Restell.

MADAME RESTELL Female Physician,
lib Greenwich-street, n. Y.
Supreme Court-The People .. Restell.
OPINION Court.
BRONSON J. The dispositions Of Mrs Purdy, who had
died before the trial. offered in evidence upon two
of General Sessions; and I'd as examinations before Mr..
Merritt, the committing magistrate. There is difficulty in
the outset in allowing them TO be read as dispositions taken
in the General Sessions for at the time they were taken
there suit proceeding against the
ing that Court Ths defendant had just before been COM
m!tted to prison by magistrate on criminal charse Eul
indictment had been found and whether she would be
Indicted ALL in the Sessions the Oyer and Termnrr
was question about which nothing could then be known
do not how the Sessions could acquire jurisdiction OF
the Oyer and Termner and transmitted to The sessions for
trial If the Court had no jurisdiction the depostons are
ertrandcal and consequently void But as this diculy
not mentioned bar, there may some legal
vision the subject which have overlooked or there may
have been an understanding between lhe couse .a 's
objection should not be made II Is proper the eiore 10
consider the upon the broad ground discussed al the
the public have dispositions taken de bsne
criminal cases. and read them in evidence without
the consent Of the defendant! think he cannot The gen
era rule certainly Is that the witnesses must appear in
Court be confronted with the accused party On trials
for homicide the dying the person murdered
may be given in evidence against the defendant rms Is
Think the only exception the general rule which has
been mentioned such as are based upon some statute
law. practice sprung up in this State at an early day.
taking dispositions de benz in civil suits which were at
erward read evidence proof c the death or absence
sanford " Burrel, Anth. N. P 1874 Jackson Kent
Cow SO Watv Whitney id. GO; Packardy Hill, i'd. 489
This practice has since been sanctioned by the
r. II. 39l, Art. But this statute does lot nor does "e
prior practice extend to criminal cases. .o,,a. cha,
are another statute, when PROVIDES tndi
the proceedings prescribed by law in civil cases respect
the mpanreling OF jures The keeping them together,
and the manner oeusering their verdict shall be had upon
trials of and the provisions OF law IN cV cases
relative compelling the attendance and testimony o. w
nesses their exannaen The administration OF oalis ana al
frmaon and proceedings for conemps 10 enloice The
remedies protect the rights of parties shall extend to
trials and other proceedings on Indictments SO Tar as ey
NAV he in their nature applicable er.to subject 70 ns
provisions contained in any statute" L n 49, sec ~
crims csses hu1 to sarect ahe mode in which existing
remedies should thereafter be applied The provisions u
law in civil cases" in relation TO the matters particularly
specified extended 10 like proceedings on indictments
but is only far they may be In their nature app
cable thereto" Much has been laid upon the words
their examinat on" applied witnesses But those
words be restricted to cases whers the examaaon
already provided for by laws and there ample scope
for their operation They apply where the witness pro-
duerd in court when he s examined on sonnlhson ana
wien examined condtonay at the instance OF thu defend
ant I2R S. 1871 sec 73, Is III. Legislature did MOI n
tend BY this general provision in relation TO the iorrh ana
mode OF proceeding in criminal TO Introduce new
ruIe into the law Of evidence. This is the more evden
from the fact special provision bad already been mace
in The chapter for The examination o. witnesses ou, o.
may have mission TO e1liRne Witnesses resuS
of the State and the oiheer may JON IN ,s
ISL sec IS i After having thus especially provided
or particular impossible TO suppose .hh we L
sisaure ia the general provision which fellows on page
s5 sec H. intended 10 cover entirely class Of ca's
and provide the examination OF witnesses de oe e'se on
the par, Of the people ,.., ,.,.. o, ..
There Of cases whsIe depoons taken out OF
read IN EVIDENCE against him. The Statutes aud PhP
and Mary G. 49, and aud Philip and Mary TO- pryv'e,
the magistrate shall take t'e e1an,nauon ~, 81 .a
prisoner and The information OF them that bring hi,, pui
The same p writing certify it 10 ;e next gao
within his commission We have similar statute n ,.
7os siS-2 Its ge.sraly agreed that depotons taken
in pursuance CT these may, when tie witness IS
dead and in other be read IN evidence on .e
trial The statutes do not provide that The deposons shall
be evd nce but they adned on The ground that they
have been taken the of JUDICIAL proceeding eS
,-I,a Tho fief
and lad The right OF II Is some unes
said in books that the deposition IS admitted because
is not e1rn:judcaL But that Is only part Oh lhe lrue
reason, ard is calculated to msead ,.,,.
Going upon that reason alone the original complaint on
oath before the magistrate on applying ior inc warrant
would he admissible evidence against ts aseHEan =.
though he had then been brought into court Is
judicial and yet am mol vdaer agnn, n
defendant The contrary was expressly aoJndsea IN lhe
State Hall. HIPS Law Rep $50 Car GUS Inc Se
II be taken when The defendant was present anu nau
the opportunity to crosexalne the witness otherwise
IL said that dispositions taken by the Coroner on holding
an inquest evidence although the defendant wa no.
present when they taken. THIS doctrine EDS De
grsyely questioned andI strongly inclined TO the opinion
that cannot bs maintained TIE great primo p f and
accuser the accused must be brought race 70 iacs anu
that The latter shall have the opportunity to cross exann
can never be departed from with safety Neither me nor
liberty should ever be put in peril by testimony 70 CT pdte
Il better that the guilty should sometimes go free than
thai be nnocep should be subjected such an ordeal IL
Is mot however necessary at tbs pass upon the adj
missiby OF dispositions taken before the Coroner IN the
absence o the accused and will therefore only mention
some of the books where the right 10 give such LAS
been strongly questioned. Stark w. 49, 4so Ea- Oh
Russ CT Col; Roscoe CT w. So lie sta aI " nm,
to PHI Ed $40 note e77 Ii such positions are adissi-
bic proves nothing against The defendant loi e Colo
ner authorised by examine the defendant ana
10 return the testimony OF all witnesses examined before ue
Jury: r ). 742, Art J. The dispositions are not mere
fore e1tra judicial But there no sIatne wach autho
ses he Court in which indictment pending 10 take de-
positions without the consent Of the deie Inc aasaG
rty OF the Court General Sessions TO take these deposit
tons ift all, must therefore be found In the COM
mon law Tse law has not authorised any suc1
proceeding in srninal cases The stantes OF rhlp at
felony and long since settled thai depositlons taken
by the magistrate in Of Elsdemeanor are nor adtss
49, Comb $50 $751; Garth 4o5 s c. This case seems 10
have bsen very carefully considered The justices OF ue
B. sent one Of their number the justices OF The Eoni
mon Pleas learn opaion and all the Judges Oh oo
Courts agreed that the deposition could not be received
Carhew only mentions the other questions WHICH -
the case and the report in Modern states maj tne usP
ton was rejected because the defendant was NO!
and Sc had lost the benefit OF cross-e1aniibasi' -
there can doubt that the other port was also -
aed and the therefore be reSaroe ds ai auJ
dicatioa by the Courts that there no auhs's 2. @
onnon law for taking depostons Court m crlniiss
cases the OF Thatcher and ailer or !oes -,
the defendants foonen 10 Lord Cornwais ana 49,
CIere They were acquitted for want OF evidence anu
was then moved By the Chef Justice that tne 9osheu
should be examined before one OF the Judges io inc p
srcutipu of their testimony against the other
,s noi asseutei by the other Judges, who sa td
rad nc authority in the other Than Justices OF Tug
Peace If the Court OF K B. in England cannot orurt I
,,kinp OF dispositions before Of the Judges II criihnd
il Is quite clear that the n. Y General Sesos c
mol order the examination of witness before the heeotoe
In the King Morphew ~ ana > ho1, oe ns,;oo Of
the defendant tha, he should consent 10 the
mon i,,errngaories OF material witness tor the efoa
Aud aitei indictment found the defendant may als2 g