This clause of the Constitution has been frequently and deliberately interpreted by the Federal courts, and the decisions are so full, emphatic and conclusive that it is only necessary to cite the cases where the rule as stated may be found. Barron v. Baltimore, 32 U. S. 7 Pet. 247, 8 L. ed. 674; Withers v. Buckley, 61 U. S. 20 How. 84, 15 L. ed. 816; United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; People v. Penhollow, 5 N. Y. Crim. Rep. 41. People v. Williams, 35 Hun, 516, 3 N. Y. Crim. Rep. 63.

§ 244. Exposition of this Subject by New York Court of Appeals. A very recent decision by the New York court of appeals has contributed to place this vexed question of depositions taken in criminal cases beyond the reach of further controversy. The functions this species of evidence discharges in the trial of civil causes, is well recognized and perfectly understood, but, the fluctuation of the authorities upon the admissibility of depositions, in criminal causes, has led to discordant rulings, and considerable misapprehension. The importance of the topic, induces the following somewhat extended extract from the opinion from Mr. Justice Earl in People v. Fish, 125 N. Y. 136:

"It is clearly settled by numerous adjudications that the right of the defendant to be confronted with the witnesses within the meaning of the Federal Constitution and the Bill of Rights was not denied to him. The evidence of the witness was taken in his presence where he had the opportunity to cross-examine him, and where he did in fact cross-examine him, and thus he had all the protection that the Bill of Rights and the Constitution were intended to secure him. This constitutional provision was not intended to secure to the accused person the right to be confronted with the witnesses against him upon his final trial, but to protect him against ex parte affidavits and depositions taken in his absence, as was frequently the practice in England at an early day. It was never regarded as an invasion of the fundamental rights of an accused person to read depositions upon his trial, if at some stage of his case he could be confronted with and cross-examine the witnesses to be used against him. In Cooley's Constitutional Limitations (5th ed.) 389, the learned author, speaking of this constitutional provision, says: "If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there was a

former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned, but appears to have been kept away by the opposite party.' And for this he cites numerous authorities."

The admission of this grade of evidence does not offend against the well known amendment of the Constitution of the United States, which declares that in criminal prosecutions, the accused shall be confronted with the witnesses against him, even the literal construction of this article does not require that the accused should be so confronted upon the trial of the indictment itself, and when the effect of the same language has been considered by the courts, it has been held to be a compliance with what has in this manner been required, that at some stage in the progress of the criminal proceeding the accused should be confronted with the witnesses and afforded the opportunity for their cross-examination, and when he has been so confronted and that opportunity has been afforded to him, that the evidence may afterwards, under certain circumstances certainly, be read upon the trial of an indictment subsequently presented against him. The construction upon this subject has been generally stated to be, "if the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there was a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify." Cooley, Const. Lim. (3d ed.) 318. And that the evidence of a deceased witness, in this manner taken either upon a preceding trial or before the committing magistrate, may be read upon the trial, has been sanctioned by the following authorities: Crary v. Sprague, 12 Wend. 41, 27 Am. Dec. 110; People v. Newman, 5 Hill, 295; State v. Valentine, 29 N. C. 225; Summons v. State, 5 Ohio St. 325; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740; Com. v. Richards, 18 Pick. 437.

It is manifest from the authorities permitting the deposition or evidence of a deceased witness to be read upon the trial of the accused, that it has not been deemed essential that he should be confronted by the witness against him upon the trial itself, but if the evidence be taken in the course of the proceeding in his

presence, and with the right or privilege of cross-examination secured to him, that will be sufficient to allow the deposition to be read in case of the decease of the witness making it, between the time when it may be taken and the time of the trial. And if this article of the Constitution should be held to be applicable to the case, it would not, therefore, exclude the deposition received in evidence on the trial of the defendant.

a. Extreme Importance of the Right. This subject of depositions received in criminal cases, is freighted with grave constitutional rights. The organic law has guaranteed a well recognized prerogative, the manifest justice of which it was the just pride of the civil law to have established. That law provides that no person shall be convicted of a heinous criminal offense-pilloried at the bar of opinion, deprived of his fair name and reputation, despoiled of his property, outraged in every sensibility by any law, which admits in evidence the irresponsible ex parte allegation of his most virulent traducers, under the guise of a deposition. The metropolitan bar has produced no abler judge than James R. Brady and his legal fame is indissolubly linked with a superb protest in a way of a dissenting opinion against this whole enormity of criminal deposition, which we reproduce in connection with this immediate topic. That it is an incisive comment upon the abuses that infest this rule all will admit, and that it is a logical statement of an elementary proposition in the rules of governing natural right all will admit.

b. Views of Mr. Justice Brady.-"Under the law in a criminal action the defendant is entitled: 1. To a speedy and public trial. 2. To be allowed counsel as in civil actions, or he may appear and defend in person and with counsel, and 3. To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the tes timony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, crossexamined, or had an opportunity to cross-examine the witness,

the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot, with due diligence, be found in the state.

"The preliminary examination is in no sense a trial by a jury and

is not designed for that purpose. It is intended to protect the accused from further prosecution if the magistrate is satisfied that none should be had, thus enabling the accused to have a summary hearing before the magistrate and protecting him from a series of burdens which, if innocent, he would otherwise unnecessarily have to bear. It is not exalted in dignity because the right to crossexamine is given in the statute. This is not new in such examinations. The right to cross-examine has always existed. The fatal objection to the use of the deposition is that the accused is not confronted at the trial before the jury impaneled to try him with the witnesses, as required by the constitution and bill of rights. He is confronted with him before the magistrate, who is really only setting the criminal machinery in motion, having no power to pronounce a judgment of which punishment may be predicated. This is not a compliance with the fundamental law and should not be tolerated. There are many reasons why it should be regarded as a dangerous procedure. There are many cases in which the accused, upon such notice as his arrest gives, would, even if innocent, be entirely unprepared to ask any ques tions arising from many causes which might exist and which the imagination can readily supply.

"The charge is made by a stranger, and having made it departs and cannot be found. He may be actuated by malice or mistaken as to the identity of the transgressor if a crime has been committed; but his testimony is to be received if he cannot be found, and accepted as true without the test of a single element which distinguishes a trial from a mere preliminary examination, and this because the accused has been advised that he may have the privilege of cross-examination. What privilege? The cross-examination of a witness is an art which all lawyers do not possess, while with some it is a power which assists materially in the revelations of the truth and prevents the commission of great wrongs. It is an ally of justice in its administration, and as important if not more important than any other element of jurisprudence. This was well understood by the framers of the constitution, and was, no doubt, one of the considerations which induced the protection guaranteed by the right to be confronted with the witness. It is true that in some states, and it may be said now in this state, the evidence of a deceased witness on a former trial may be read on proof of his death. See State v. Fitzgerald, 63 Iowa, 268; Com.

v. Richards, 18 Pick. 434; Sullivan v. State, 6 Tex. App. 319; State v. Hooker, 17 Vt. 658; Kean v. Com. 10 Bush, 190, 19 Am. Rep. 63; Walston v. Com. 16 B. Mon. 15; Marler v. State, 67 Ala. 55, 42 Am. Rep. 95; Roberts v. State, 68 Ala. 515; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740. But there a trial has been had and all the rights of such a proceeding secured. The accused has been confronted with the witnesses and has had the opportunity to sift their evidence and assail them if he could do so.

"True, also, it has been held in other states (see Com. v. Richards, and State v. Fitzgerald, supra), that evidence was received to show what a deceased witness stated on a preliminary examination, and although a constitutional barrier existed similar to ours. The extent to which the authorities in this state have proceeded has only permitted the evidence of a deceased witness upon a former trial of the same indictment to be used. See People v. Newman, 5 Hill, 295; Crary v. Sprague, 12 Wend. 41, 27 Am. Dec. 110. And in the first of these cases it was expressly held that the public prosecutor could not use the testimony given by a witness on a former trial, though he be absent from the state. And it was suggested in that case that the rule which allowed the evidence of a deceased witness to be admitted in civil cases should not be applied to criminal proceedings, and the judgment in the case of Finn v. Com. 5 Rand. (Va.) 701, was approved, in which Brockenbrough, J., said that even the death of the witness could not in a criminal case be allowed as a reason for receiving his former testimony.

"Justice Nelson said, in Crary v. Sprague, that the testimony of a witness could not be received unless he were dead and his death were affirmatively shown, and proceeded further to say: 'Even diligent inquiry without being able to find the witness is not sufficient, though it is obvious there can scarcely be a shade of difference between the two cases (death and absence) either in principle or hardship.'

"It is true, as remarked by Justice Nelson, that there is scarcely a shade of difference between the principle upon which evidence of a deceased witness is admitted, and that of an absent witness whose presence cannot be secured by diligent search. But it is quite apparent that in allowing the evidence of a deceased witness upon a former trial, where the right of examination was