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

uCICu Sn0s % Witness tCStIucu VIZ tuC |
former trial as to having q skiff and
ferrying defendant across Big Sugar !
creek. Cannot now remember the !
name Of the witness without refresh
ing my memory from the bill Of ex- !
ceptions." the bill Of exceptions was
then handed to witness who after re-
ferring to it and reading it recognized
The name Of Holiday as being the
witness. He stated he could not recol-
lect the name Of the witness without
reference to the bill Of exceptions.
The bill Of exceptions was then identi-
fed by Cravens As the one signed by
him as judge at the former trial. In
answer to a question nv defendants
counsel Cravens said he could not re.
peat every word testified to BY Holli-
day, but that he did remember the
substance Of the evidence Of the wit
ness on the former tria; both his testi-
mony in chief and on cross exan,ina-
ton. Witness then read the evidence
as contained in the bill Of exceptions
AMI stated that the testimony was sub
stantially the testimony given by the
witness ON the former trial. The evil
dence If HOLIDAY as contained in the
bill OF exceptions was then read to the
jury over defendant's objection.
There is also appended to the bill Of
exceptions what purports to be the af-
6davit Of three jurors in partial sup
port Of the bill of exceptions signed by
Phelps, Houghanaut and Robinson. de-
fendart's attorneys. This affidavit was
not sworn TO before an officer author
ICED to administer Oaths, the certii-
cate Of the Notary Public showing
ON its face that his Office expired on
the oath Of September. 1877. and that
the affidavit was made before him on
the Goth day Of October, 1877, more
than one month after he had ceased to
be an officer authorized to administer
an oath.
| 1t is provided in our statute that
when the judgt refuses to permit bill
Of exceptions signed by bystanders to
be filed and shall have certified that it
is untrue either party in the suit may
take afiidavits not exceeding i've in
number in relation tn its truth. and
that such affilavi.s. shall be deposited
in the clerks office and an appeal or
writ of error shall he annexed to and
form a part o. the record Of the cause.
1t also provides that any court to
which an appeal shall be taken, shall
admit as p,rt Of the record Of the
cause taken therein upon its appearing
to the satisfaction ii such court, that
the truth Of the case is fairly stated
in such bill, that the same was taken
according to law and that the court
refused to permit the same to he fled.
Il II further provides that the truth III snch
bill shall be tried by the affidavit
required by this chapter to be taken
md filed in the clerks office.
Under the state Of facts there being no
affidavit. BY which the truth Of the bill
can be tried, we might we'll regard the case
~ being here without any bill Of excep-
tions, but waving the determination 81
this question, the most favorable view tina,
can be taken to give the defendant any
standing in this court, il To give credencs
: in the absence Of the required statutory
? proof, to the statement certified to the
ia ige n being true. who il presumed to bt
influenced by NO such bias ~ the attOr-
ney's for either party might possibly labor
under.
Taking then this view Of ii, the question
arlses, WAS the evidence Of Holiday sivea
On the former trial ~ preserved TN the bill
vi exceptions, 80 identified M to allow it u
20 To the jury as his evidence
This is u question not entirely free from
; difficulty.
Ever since the case Of the State ~
Moo Blennis, q, Mo. 4O3, it has been the
settled Law in this State that the deposition
OF written statement OF witness by hin
: signed and taken before = commit
: ting magistrate, on a preliminary
, examination in criminal case
can be read on subsequent trial of tn
cause, when il il shown, that such witness
giving hi. evidence has in the interim died
This conclusion W>s reached in that case at
, ter the most careful consideration, and aftel
. most thorough and exhaustive examina'
ton Of the subject. II was there held, wheI
the witness had once been examined in tn,
|, presence Of the accused, that the eonstiiu
iionxl provisio which declares shat in al
, criminal prosecutions the accused has thu
, right to meet the witness against him facs
to face" does not forbid the reception o.
such nor, in any manner, impair the consti
tutional right Of the accused in that respect
The essence Of the decision and the prin
: c;pls to be deduced from il il. that when
ever the evidence of q witness in . crimina
case has been given in . curt whether il b
an examinations or trial court and such evil
dence has been given in the presence Of the
: accused on his trial, and the witness dies be-
tween the former and any subsequent
trial. that the evidence gwen BY him on the
, former trial. may, when proved, be giver
, ON . subsequent trial Of the same charge
whether 1t rests in the knowledge OF wit
nesses or il preserved in writing in some
manner authorized BY Law.
, IL having thus been definitely settled
that the evidence of q witness given o.
former trial under the above circum
, stances may be given on . suhsequen
trial, who has since died, the ques
ton arises how may il be proved
In case Of United States ". Macomb
Mclean, G. G. 2S6. Judge Drummond
held then witness since deceased had ties.
tilted, ut the preliminary examination IN
relation to the offence in the presence Of the
accused, that witnesses would be permitted
to prove What the deceased witneas had tes-
tilted To ut such examination, and that 70
far ~ il related to such proof, the rules Of
|, evidence we're the same in criminal N in
civil cases. The conclusion was reached in
that case after an examination OF the
authorities, that the evidence Of deceased
Witness might be proved in criminal case
; IN the same manner that il could be in a
civil case, and that in making such Prcoi
il was not necessary TO use the precise and
exact words Of the witness, but only to give
the substance. On this last branch ct the
proposition there 10 some conflict 81
authority. While The courts Of New York,
Massachusetts and Indiana hold that the
precise words Of the witness must Be given.
The courts Of Pennsylvania, Maryland, Wiz.