[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 388 When certain offences are committed in the city and county of New-York, against persons being in, but not being residents of the city, the testimony of all witnesses in the matter, being in, but not residing in the city, may, on the application of the district attorney, be taken de bene esse, before a judge, out of court. The witness must be examined in presence of the accused; the examination must be reduced to writing, and filed in the office of the clerk of the court of sessions; and may be used before the grand jury, and all courts and tribunals having jurisdiction of the subject matter, in the same manner and with the like effect as the witness could be were he personally present. (Stat. 1844, p. 476, § 11.) There is another statute touching this matter, but it does not affect the present question. (Stat. 1846, p. 408, § 9.) The testimony is to be taken "de bene esse," or conditionally; but upon what condition, or under what circumstances the deposition may be used, the legislature has not specified. Although the supreme court felt embarrassed in The People v. Hadden, (3 Denio, 220,) by the want of such a specification, they were clearly of opinion that the deposition could not be read in evidence under all possible circumstances, or as a matter of course; but that the district attorney must give some account of the witness, or the reason why he was not produced, before the deposition could be received: and a new trial was ordered in that case, because the district attorney had been allowed to read the deposition, without sufficiently accounting for the absence of the witness. *Page 389 There can be no doubt of the correctness of the decision. But I think the court might have gone a step further, and solved the question when, or under what circumstances, the deposition may be read in evidence. As the testimony is to be taken de bene esse, or conditionally, without any specification of the circumstances under which it may be used, the legislature must have referred to the established practice of taking testimony de bene esse, or conditionally, in civil cases. Such deposition can only be given in evidence on showing that the witness is dead, insane, or unable to attend the trial in consequence of sickness or settled infirmity; or that he is absent from the state. (The People v.Restell, 3 Hill, 295, and cases cited; 2 R.S. 391, art. 1.) Unless we understand the legislature as referring to the practice in civil cases, the words "de bene esse," as they are used in the statute, will have no meaning. But with that reference, all is plain enough. The deposition cannot be read on the trial, without first showing that the attendance of the witness could not be procured, either in consequence of his inability to come, or his absence from the state.
It has not been contended, on the part of the people, that the deposition may be read under all possible circumstances. It is admitted that some account must be given of the witness. But it is said to be enough to show that the witness is a non-resident of the city, or cannot, upon diligent search, be found in it, at the time of the trial. That admission is enough to dispose of this case; for there was no proof whatever that the witness was a non-resident; and nothing like sufficient proof that he could not be found in the city. The deposition had not been read at the time this question arose; and Mr. Brennan knew nothing about the residence of the witness. He was only called for the purpose of showing that the witness could not be found in the city at the time of the trial; and there was a total failure to make out any thing like due diligence in the search and inquiry. It amounted to no more than this: Brennan, without knowing any thing himself about the witness or his residence, went to two hotels, where he was informed by the district attorney that Bennett stopped when he was in the city; and on *Page 390 inquiry, he was informed by the two bar-keepers that Bennett "was not at either of those places, and did not live in New-York to their knowledge:" which means, I suppose, that they knew nothing about the matter, either one way or the other. The district attorney was not called to state what he knew about Bennett, or why he sent Brennan to the two hotels. Some stress was laid on the concluding remark of Brennan, that he "could not find Mr. Bennett in the city." But he had previously given the particulars of what he had done in the premises; and it was far enough from a diligent search or inquiry after the witness.
This is enough to dispose of the case as it now comes before us. But as the question which has already been made, will undoubtedly be made again upon the new trial which must be ordered, it is proper that we should determine what must be shown concerning the witness before the deposition can be read. That has already been intimated. It is not enough to prove that the witness is a non-resident of the city, or that upon diligent search and inquiry he cannot be found in it: nor will both of those facts combined make out a proper case. Absence from the city is not mentioned at all in the statute; and non-residence is only spoken of in reference to the class of persons who are injured by the offence, and the witnesses who may be examined out of court. When we come to the question, upon what condition, or under what circumstances the deposition may be read, the statute is entirely silent, except in the use of the words de beneesse. If we do not reject those words as utterly senseless, they evidently point to the rule in civil cases; and the witness must be produced on the trial, unless his attendance is prevented by insanity, sickness, settled infirmity, or absence from thestate. The legislature could not have intended to make a rule more burdensome to the accused in criminal cases, than is the rule in relation to a party in a civil suit. They did not intend that the deposition should be read when the witness resides at Brooklyn, in sight of the New-York city hall; and yet such is the result of the doctrine which has been urged on the part of the prosecution. *Page 391
If this question were more doubtful than it is, it should be borne in mind, that upon any construction, this is a statute in derogation of the common law rules of evidence; and that it violates a principle which was thought of sufficient importance to be adopted as a part of the sixth amendment of the constitution of the United States, and also forms a part of our bill of rights, in these words: "In all criminal prosecutions the accused has a right to be confronted with the witnesses against him." (1 R.S. 94, § 14.) This means something more than that the accused shall have the right to stand face to face with his accuser out of court; it means that they shall be confronted on the trial, so that the judge and jury may have the opportunity of observing the appearance and manner of the witness, as well as hearing what he has to say — the former sometimes proving a complete antidote to the latter, as is well known to every nisi prius lawyer. We cannot very well overestimate the importance of having the witness examined and cross-examined in presence of the court and jury. Although the constitution of the United States does not apply to state prosecutions, and our bill of rights is but a statute, which, like other statutes, may be repealed, we ought to adopt the most strict construction for the purpose of confining any supposed repeal — especially one by mere implication — to the narrowest possible limits. Justice to the legislature requires that we should so construe the statute as not to carry the inroad which, to some extent, it makes upon a great principle, any further than is absolutely necessary.
I am of opinion that the rule which governs the reading of depositions taken conditionally in civil cases, should be applied to depositions taken under the New-York criminal statute. Upon this construction the statute will still have effect. It will apply wherever the witness, at the time of the trial, resides out of the state, or is dead; and where, though alive and residing in the state, he has become incapable of attending the trial in consequence of sickness or insanity.
But a majority of the judges are of opinion that though the witness may be a resident of the state, and able to attend the *Page 392 trial, the deposition may be read on proof that he is a non-resident of the city at the time of the trial, and was so when the deposition was taken. We are all of opinion that there was no sufficient proof of such non-residence in this case; and on that ground the judgments of the supreme court and the oyer and terminer must be reversed, and a new trial be awarded.
Ordered accordingly.