The Sedalia weekly bazoo. [volume] (Sedalia, Mo.) 187?-1904, 1878-01-01

former trial. proved the execution Of q
written instrument BY "B," that would be
giving the effect of his testimony, which 10
nothing else than the result or conclusion.
but II the witness state that "a" testified
that he had often seen III" write; that he
was acquainted with his hand writing and
that the name subscribed to the instrument
Of writing exhibited was "B's" signature.
that would he giving the substance OF "B's"
testimony, though it might not be in the
exact words Of a"
The authorities above cited, We think. es-
tablish the following propositions that in a
criminal Gaze the evidence cf a deceased
witness, who had testified on q former
trial may he proved on a subssquen: trial
81 the same case between the same parties.
the death Of the witness first being shown
That the witness called to prove who was
testified to by the deceased witness il not
required to Use the exact words OF the Wit
ness, but NAV give the substance of all
that he testified to. That ia proving
what Was sworn {. by the deceased witness,
The same rules apply both in civil and
criminal cases.
IL has been held BY this court in the case
Of Jaccord ct al VI. Anderson, 81. No. SIS
,hat the testimony Of witness since d~ceas.
ell preserved in a bill Of exceptions. filed on
the former trial Of the Cause could be re.
ceived in evidence, when proved to be the
substance Of the testimony which the de-
ceased witness gave on the former trial.
In d,sposing Of this question il IL remark
ed. that ii il il to be presumed that the
! bill of exceptions contained all the test,.
mony Of the witness IN chief, and on cross
examination, which the parties and their
counsel deemed material to the issue. or
necessary to he said in bill Of exceptions.
On the face ii the testimony offered, u ap-
pears to have been all that was given or
deemed important on the former trial. One
Of defendants counsel testified that he
assi>te" in preparing the former bill of
exceptions. and that he thought il Contain
ed in substance the testimony Of King,
at the trial, though mot all he nav have
said" We think il sufficiently appears :ha
! the substance Of the whole testimony wa
contained in the bill OF exceptions that was
offered in evidence"
Applying the principle of the decision to
the case before Us and il will manifestly ap-
pear that the court in admitting the evi-
dence Of the deceased witness, HOLIDAY, a.
preserved in the bill of exceptions commit
ted no error.
HouehanOut, one Of the defendants conn.
sel, swears that he kept minutes Of the tes-
timOny Of the former trial, prepared the
bill of exceptions from his own minutes.
and. Robinson, another attorney OF defen.
dant, that il was agreed on in the presence
Of the judges and attorneys for the State
and defendant, but that he could not state
that it contained all the testimony Of the
witness.
The evidence of this witness alone, under
the views expressed in Jaccard W.. Ander-
son. supra, might have authorized the court
to receive the evidence.
| Ths testimony Of Houghanout il more
than supplemented BY that Of Judge Graz
vens before whom the first trial was had and
who signed the bill of exceptions. He
stated a. certified to by the special Judge.
that he remembered the substance of the
evidence Of Holiday, the deceased witness,
and that he thought the bill Of exceptions
contained the substance Of the testi-
monv. Ii il urged that the court com nit
ell error in allowing the witness. era.
vens, to look ut the bill OF exceptions
to refresh himself ~ tn the name Of the
witness. This We think was permissible
anil we can see no error in il authorizing q
disturbance Of the judgment.
The evidence being thu. identified, was
read from the hill Of exceptions, and il ap-
pears on the face of Il, that the witness,
Holiday, was examined in chief, cross
examined, re-examined and re croas-exam-
ined. Looking through the whole case,
. from the beginning To the end Of the trial,
4 We have discovered n" error authorizing an
interference with the judgment.
The defendant has been twice put npOu
his trial and has been twice found guilty oil
murder in the 6nst degree. The evidences
seem. tn warrant the finding If the jury,
all the circumstances proven in the cass
which We deem unnecessary To advert "a
herr) point to the defendant a. the guilty
party.
Judgment affirmed, the other judges con
curing. E. n. NoRros.J.