CHAPTER X. OF THE TESTIMONY OF WITNESSES SUBSEQUENTLY DEAD, ABSENT, OR DISQUALIFIED. [§163. Admissibility of evidence of deceased witness at a former trial. 164. Not requisite all the parties to the suits should have been the same, but that the party should have opportunity for cross-examination. 165. The substance of what the witness testified, both on direct and cross-examination, must be proved. 166. Any witness may prove it, from memory and his notes taken at the time. 167. Cases where the witness has become incompetent from subsequently acquired interest. 168. It would seem, in such cases, the testimony given at a former trial should be received. Qualification of the rule stated by the author.] § 163. In the fifth class of exceptions to the rule rejecting hearsay evidence may be included the testimony of deceased witnesses, given in a former action, between the same parties; though this might, perhaps, with equal propriety, be considered under the rule itself. This testimony may have been given either orally, in court, or in written depositions taken out of court. The latter will be more particularly considered hereafter, among the instruments of evidence. But at present we shall state some principles applicable to the testimony, however given. The chief reasons for the exclusion of hearsay evidence are the want of the sanction of an oath, and of any opportunity to cross-examine the witness. But where the testimony was given under oath, in a judicial proceeding, in which the adverse litigant was a party, and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted, after the decease of the witness, in any subsequent suit between the same parties. It is also received, if the witness, though not dead, is out of the jurisdiction, or cannot be found after diligent search, or is insane, or sick, 1 Bull. N. P. 239, 242; Mayor of Don caster v. Day, 8 Taunt. 262; Glass v. Beach, 5 Verm. 172; Lightner v. Wike, 4 and unable to testify, or has been summoned, but appears to have been kept away by the adverse party. But testimony thus offered is open to all the objections which might be taken, if the witness were personally present. And if the witness gave a written deposition in the cause, but afterwards testified orally in court, parol evidenco may be given of what he testified viva voce, notwithstanding the existence of the deposition.8 § 164. The admissibility of this evidence seems to turn rather on the right to cross-examine, than upon the precise nominal identity of all the parties. Therefore, where the witness testified in a suit, in which A and several others were plaintiffs, against B 1 Bull. N. P. 239, 243; 1 Stark. Evid. 264; 12 Vin. Abr. 107, A. b. 31; Godb. 326; Rex v. Eriswell, 3 T. R. 707, 721, per Ld. Kenyon; [Long v. Davis, 18 Ala. 801; Covanhovan v. Hart, 21 Penn. (9 Harris), 495.] As to the effect of interest subsequently acquired, see infra, § 167. Upon the question whether this kind of evidence is admissible in any other contingency except the death of the witness, there is some discrepancy among the American authorities. It has been refused, where the witness had subsequently become interested, but was living and within reach; Chess v. Chess, 17 S. & R. 409; Irwin v. Reed, 4 Yates, 512: where he was not to be found within the jurisdiction, but was reported to have gone to an adjoining state; Wilber v. Selden, 6 Cowan, 162: where, since the former trial, he had become incompetent by being convicted of an infamous crime; Le Baron v. Crombie, 14 Mass. 234: where, though present, he had forgotten the facts to which he had formerly testified; Drayton v. Wells, 1 Nott & McCord, 409: and where he has proved to have left the state, after being summoned to attend at the trial; Finn's case, 5 Rand. 701. In this last case it was held, that this sort of testimony was not admissible in any criminal case whatever. [See also Brogy v. Commonwealth, 10 Gratt. 722.] In the cases of Le Baron v. Crombie, Wilber v. Selden, and also in Crary v. Sprague, 12 Wend. 41, it was said, that such testimony was not admissible in any case, except where the witness was shown to be dead; but this point was not in either of those cases directly in judgment; and in some of them it does not appear to have been fully considered. [See also Weeks v. Lowerre, 8 Barb. 530.] On the other hand, in Drayton v. Wells, it was held by Cheves, J., to be admissible in four cases: 1st, where the witness is dead; 2d, insane; 3d, beyond seas; and 4th, where he has been kept away by contrivance of the other party. See also Moore v. Pearson, 6 Watts & Serg. 51. In Magill v. Kauffman, 4 S. & R. 317, and in Carpen ter v. Groff, 5 S. & R. 162, it was admitted on proof that the witness had removed from Pennsylvania to Ohio, -it was also admitted, where the witness was unable to testify, by reason of sickness, in Miller v. Russell, 7 Martin, 266, N. s.; and even where he, being a sheriff, was absent on official duty. Noble v. Martin, 7 Martin, 282, N. s. But if it appears that the witness was not fully examined at the former trial, his testimony cannot be given in evidence. Noble v. McClintock, 6 Watts & Serg. 58. If the witness is gone, no one knows whither, and his place of abode cannot be ascertained by diligent inquiry, the case can hardly be distinguished in principle from that of his death; and it would seem that his former testimony ought to be admitted. If he is merely out of the jurisdiction, but the place is known, and his testimony can be taken under a commission, it is a proper case for the judge to decide, in his discretion, and upon all the circumstances, whether the purposes of justice will be best served by issuing such commission, or by admitting the proof of what he formerly testified. 2 Wright v. Tatham, 2 Ad. & El. 3, 21. Thus, where the witness at the former trial was called by the defendant, but was interested on the side of the plaintiff, and the latter, at the second trial, offers to prove his former testimony, the defendant may object to the competency of the evidence, on the ground of interest. Crary v. Sprague, 12 Wend. 41. 887. 8 Tod v. E. of Winchelsea, 8 C. & P act is alone, his testimony was held admissible, after his death subsequent suit, relating to the same matter, brought by A alone. And though the two trials were not parties, yet if the second trial is between those the parties to the first, by privity in blood, in la evidence is admissible. And if, in a dispute resp fact comes directly in issue, the testimony given admissible to prove the same point or fact in anot action between the same parties or their privies, though the last suit be for other lands.2 The principle on which, chiefly this evidence is admitted, namely, the right of cross-examination, requires that its admission be carefully restricted to the extent of that right; and that where the witness incidentally stated matter, as to which the party was not permitted by the law of trials to cross-examine him, his statement as to that matter ought not afterwards to be received in evidence against such party. Where, therefore, the point in issue in both actions was not the same, the issue in the former action having been upon a common or free fishery, and, in the latter, it being upon a several fishery, evidence of what a witness, since deceased, swore upon the former trial, was held inadmissible.3 § 165. It was formerly held, that the person called to prove 1 Wright v. Tatham, 1 Ad. & El. 3. But see Matthews v. Colburn, 1 Strob. 258. [So it is admissible in a subsequent action, in which the same matter is in issue, between persons who were parties to the former action, although other persons, not now before the court, were also parties to the former action. Philadelphia, W. & B. R. R. Co. v. Howard, 13 How. U. S. 307. But where in a suit for land against two persons jointly, certain facts were admitted and agreed on by all the parties, in a subsequent suit for the same land between the same defendants, this admission and agree ment, though in writing, is not evidence. Frye v. Gragg, 35 Maine, 29.] 2 Outram v. Morewood, 3 East, 346, 354, 355, per Ld. Ellenborough; Peake's Evid. (3d. ed.) p. 37; Bull. N. P. 232; Doe v. Derby, 1 Ad. & El. 783; Doe v. Foster, Id. 791, note; Lewis v. Clerges, 3 Bac. Abr. 614; Shelton v. Barbour, 2 Wash. 64; Rushford v. Countess of Pembroke, Hard. 472; Jackson v. Lawson, 15 Johns. 544; Jackson v. Bailey, 2 Johns. 17; Powell v. Waters, 17 Johns. 176. See also Ephraims v. Murdoch, 7 Blackf. 10; Harper v. Burrow, 6 Ired. 30, 3 Melvin v. Whiting, 7 Pick. 79. See See what a deceased witness testified on a former trial, must be required to repeat his precise words, and that testimony merely to the effect of them was inadmissible." But this strictness is not 1 4 T. R. 290, said, per Ld. Kenyon, to have been so "agreed on all hands," upon an offer to prove what Ld. Palmerston had testified. So held, also, by Washington, J., in United States v. Wood, 3 Wash. 440; 1 Phil. Evid. 200 [215], 3d. ed.; Foster v. Shaw, 7 Serg. &. R. 163, per Duncan, J.; Wilber v. Seldon, 6 Cowen, 165; Ephraims v. Murdoch, 7 Blackf. 10. The same rule is applied to the proof of dying declarations. Montgomery v. Ohio, 11 Ohio R. 421. In New Jersey it has been held, that if a witness testifies that he has a distinct recollection, independent of his notes, of the fact that the deceased was sworn as a witness at the former trial, of what he was produced to prove, and of the substance of what he then stated; he may rely on his notes for the language, if he believes them to be correct. Sloan v. Somers, 1 Spencer, R. 66. In Massachusetts, in The Commonwealth v. Richards, 18 Pick. 434, the witnesses did not state the precise words used by the deceased witness, but only the substance of them, from recollection, aided by notes taken at the time; and one of the witnesses testified that he was confident that he stated substantives and verbs correctly, but was not certain as to the prepositions and conjunctions. Yet the court held this insufficient, and required that the testimony of the deceased witness be stated in his own language, ipsissimis verbis. The point was afterwards raised in Warren v. Nichols, 6 Met. 261; where the witness stated that he could give the substance of the testimony of the deceased witness, but not the precise language; and the court held it insufficient; Hubbard, J., dissenti ente. The rule, however, as laid down by the court in the latter case, seems to recognize a distinction between giving the substance of the deceased witness's testimony, and the substance of the language; and to require only that his language be stated substantially, and in all material particulars, and not ipsissimis verbis. The learned chief justice stated the doctrine as follows: "The rule upon which evidence may be given of what a deceased witness testified on a former trial between the same parties, in a case where the same question was in issue, seems now well established in this commonwealth by authorities. It was fully considered in the case of Commonwealth v. Richards, 18 Pick. 434. The principle on which this rule rests was accurately stated, the It cases in support of it were referred to, and with the decision of which we see no cause to be dissatisfied. The general rule is, that one person cannot be heard te testify as to what another person has declared, in relation to a fact within his knowledge, and bearing upon the issue. It is the familiar rule which excludes hearsay. The reasons are obvious, and they are two: First, because the averment of fact does not come to the jury sanctioned by the oath of the party on whose knowledge it is supposed to rest; and secondly, because the party upon whose interests it is brought to bear has no opportunity to cross-examine him on whose supposed knowledge and veracity the truth of the fact depends. Now the rule, which admits evidence of what another said on a former trial, must effectually exclude both of these reasons. must have been testimony; that is, the affirmation of some matter of fact, under oath; it must have been in a suit between the same parties in interest, so as to make it sure that the party, against whom it is now offered, had an opportunity to crossexamine; and it must have been upon the same subject-matter, to show that his attention was drawn to points now deemed important. It must be the same testimony which the former witness gave, because it comes to the jury under the sanction of his oath, and the jury are to weigh the testimony and judge of it, as he gave it. The witness, therefore, must be able to state the language in which the testimony was given, substantially and in all material particulars, because that is the vehicle by which the testimony of the witness is transmitted, of which the jury are to judge. If it were otherwise, the statement of the witness, which is offered, would not be of the testimony of the former witness; that is, of the ideas conveyed by the former witness, in the language in which he embodied them; but it would be a statement of the present witness's understanding and comprehension of those ideas, expressed in language of his own. Those ideas may have been misunderstood, modified, perverted, or colored, by passing through the mind of the witness, by his knowledge or ignorance of the subject, or the language in which the testimony was given, or by his own prejudices, predilections, or habits of thought or reasoning. To illustrate this distinction, as we understand it to be fixed by now insisted upon, in proof of the crime of perjury;1 and it has been well remarked, that to insist upon it in other cases, goes in effect to exclude this sort of evidence altogether, or to admit it only where, in most cases, the particularity and minuteness of the witness's narrative, and the exactness with which he undertakes to repeat every word of the deceased's testimony, ought to excite just doubts of his own honesty, and of the truth of his evidence. It seems, therefore, to be generally considered sufficient, if the witness is able to state the substance of what was sworn on the former trial. But he must state, in substance, the whole of what the cases: If a witness, remarkable for his knowledge of law, and his intelligence on all other subjects, of great quickness of apprehension and power of discrimination, should declare that he could give the substance and effect of a former witness's testimony, but could not recollect his language, we suppose he would be excluded by the rule. But if one of those remarkable men should happen to have been present, of great stolidity of mind upon most subjects, but of extraordinary tenacity of memory for language, and who would say that he recollected and could repeat all the words uttered by the witness; although it should be very manifest that he himself did not understand them, yet his testimony would be admissible. The witness called to prove former testimony must be able to satisfy one other condition, namely, that he is able to state all that the witness testified on the former trial, as well upon the direct as the crossexamination. The reason is obvious. One part of his statement may be qualified, softened, or colored by another. And it would be of no avail to the party against whom the witness is called to state the testimony of the former witness, that he has had the right and opportunity to crossexamine that former witness, with a view of diminishing the weight or impairing the force of that testimony against him, if the whole and entire result of that cross-examination does not accompany the testimony. It may, perhaps, be said, that, with these restrictions, the rule is of little value. It is no doubt true, that in most cases of complicated and extended testimony, the loss of evidence, by the decease of a witness, cannot be avoided. But the same result follows, in most cases, from the decease of a witness whose testimony has not been preserved in some of the modes provided by law. But there are BCIne cases in which the rule can be usefully applied, as in case of testimony em braced in a few words, such as proof of 111. 2 See Cornell v. Green, 10 Serg. & R. 14, 16, where this point is briefly, but powerfully discussed, by Mr. Justice Gibson. See also Miles v. O'Hara, 4 Binn. 108; Caton v. Lenox, 5 Randolph, 31, 36; Rex v. Rowley, 1 Mood. Cr. C. 111; Chess v. Chess, 17 Serg. & R. 409, 411, 412; Jackson v. Bailey, 2 Johns. 17; 2 Russ. on Crimes, 638 [683], (3d Am. ed.); Sloan v. Somers, 1 Spencer's R. 66; Garrett v. Johnson, 11 G. & J. 28; Canney's case, 9 Law Reporter, 408; The State v. Hooker, 2 Washb. 658; Gildersleeve v. Caraway, 10 Ala. R. 260; Gould v. Craw ford, 2 Barr. 89; Wagers v. Dickey, 17 Ohio R. 439; [United States v. Macomb, 5 McLean, 286; Emery v. Fowler, 39 Maine, 326; Young v. Dearborn, 2 Foster, 372; Williams v. Willard, 23 Vt. 369; Van Buren v. Cockburn, 14 Barb. 118; Jones v. Wood, 16 Penn. State R. 25; Riggins v. Brown, 12 Geo. 271; Walker v. Walker, 14 Ib. 242; Davis v. State, 17 Ala. 354; Clealand v. Huey, 18 Ib. 348; Kendrick v. State, 10 Humph. 479; supra. § 161a.] |