The first objection to the deposition of McChestney as evidence, was that the order for his examination was made upon an insufficient affidavit. The section of the statute under which this examination was had, is exceedingly imperfect in its details, and certainly leaves room for much doubt as to what was really intended by the legislature. But the entire provision, upon the most, restricted construction of which it is susceptible,, is in derogation of. the common law rules of evidence, and should not, by mere construction upon equivocal words and phrases, be made to subvert principles which are deemed to be of vital importance for the security of life and liberty. If the terms used manifestly and necessarily call for such an interpretation, it is our duty to give effect to them in that sense; but if they do not absolutely demand it, I think we should give a more reasonable construction to the., language of the legislature.
The statute is special not general in its provisions. It does not authorize the examination in all cases, but only under particular circumstances. (Laws 1844, p. 476, § 11.) 1. The of-fence must have been committed within the city and county of New-York. 2. It must have been committed on the person of a non-resident of said city and county, or by taking or receiving from him, money or property, and while.he was in said city- and county. 3. Under such circumstances the testimony “of all witnesses in the matter being in but not residing in said city and county,” may be taken out of court, on application made for that purpose by the district attorney.
But this testimony is not to be used under all circumstances; on the contrary, according to the words of the enactment, it is to be taken “de bene esse.” These words plainly point to some condition: some particular state of things which, when they, exist, will permit the use of said testimony; and they as plainly imply that without the existence of this particular state of things the evidence cannot be received. The difficulty in this part of the case is, to determine what conjuncture of circumstances will satisfy the statute and authorize testimony thus taken to be read in evidence.
*223Assuming that a proper casé exists for taking the testimony of a witness, I think it may be taken under this enactment without any preliminary proof being furnished to the officer. On mere suggestion from the district attorney that the case is such as the statute contemplates, it seems to me an order for the examination may be regularly made. Due notice being given, and the examination properly conducted, the testimony will be taken regularly, although no preliminary proof had been made before the officer. This is my view of the statute, although it is unnecessary to decide the point in this case, for the affidavit on which the recorder proceeded to make the order for an examination of this witness, was undoubtedly sufficient for the purpose, even if the statute requires that proof should be made as a foundation for the order.
But the testimony, although taken in a proper case, and in a regular manner, is still not taken absolutely, but de bene esse ; and cannot be used as á matter of course before the grand jury or on the trial of the accused. The public prosecutor offers evidence which the common law will not permit to be received, but which it denounces as wholly inadmissible. It is offered under the authority of a statute, the party by whom it is offered must therefore show, not only that the manner in which the testimony was taken was formally correct, but that such circumstances exist at the time when the testimony is offered to be used, as authorize its reception as evidence. The doubt is, what circumstances are required for this purpose by this statute.
In other acts of a similar description, special provisions may be found, declaring when, and under what circumstances, evidence thus taken may be used. Such probably is the case in all other enactments of this character. (2 R. S. 391, art. 1; id. 398, art 5; 1 Laws U. S. by Story, 64, the Judiciary act of 1789, § 30; 1 Greenl. Ev. 2d ed. p. 390 to 394.) But the enactment now in hand is an exception to this rule : a rule of propriety and of almost absolute necessity, for without a legislative provision on the subject, how shall the court know under what circumstances the lawmakers intended this description of testi*224mony should be received? By the statute, the testimony is to be taken de bene esse not absolutely. It is not to be received as of course, but on showing circumstances which authorize its reception. Suppose the .witness to be present at the trial, no one, I presume, would attempt to maintain that his deposition could be read as evidence. The legislature certainly did not mean so absurd and so monstrous a perversion of justice and good sense as this would be. The party who seeks to use such evidence must show the circumstances which make it admissible : the burthen is on him, and until these circumstances are ,'<sr ' shown, the testimony must clearly be rejected.
I shall not .undertake to point put what circumstances may make such evidence admissible in all cases. In dealing with such a piece of legislation as this section is, it seems to me quite enough to determine the particular case in judgment, without attempting any thing like a more extended interpretation of the enactment. And in analogy to all other statutes of this general character, and having a similar object in view, I think the public prosecutor is at the very least, bound, under this statute, to show that the witness could not be obtained on a subpoena issued to the city and county of New-York. It was at least incumbent on the district attorney to show that the witness was a non-resident of the city and county of New-York, or that after due efforts made his attendance could not be obtained, although he was a resident within such city and county. The fact of such non-residence is necessary to authorize an examination of the witness de bene esse, and unless he remains such non-resident down to the time when his testimony is to be used, or his attendance, for some other reason,'cannot be obtained, I think the deposition should in no case be received. The words de bene esse, must at least imply so much, and in reason should not have a more restricted meaning. They may imply much more, but this is enough to dispose of the present case.
I agree that the public prosecutor need not prove, preliminarily, that the crime was committed in New-York and upon a non-resident of the city and county. These may be shown by the deposition itself. But that cannot be read until it is firs*225t shown that it was taken on an order and notice, duly served as the statute requires, and also that the witness continues to be a non-resident of said city and county, or that it is impracticable to obtain his personal attendance. I do not see but what this testimony was taken correctly, in matter of form. So far the objections made to it were proparly overruled. But no competent evidence was furnished to, show that the witness lived in New-Jersey, or that he was a non-resident of the city and county of New-York. His own naked declaration on that subject proved nothing, and should not have been heard, to lay a foundation for the reception of this evidence. The right to cross-examine a witness before the jury, and to have him testify in their presence and hearing, is too obviously reasonable of itself, to allow it to be frittered away lightly. Had it appeared, as it did in Guyon v. Lewis, (7 Wend. 26,) that the witness was a journeyman mechanic, without a home and seeking employment, these facts, with his declaration that he was going to another state, might have been sufficient to establish his non-residence in this state, and on that ground let in his deposition taken de bene esse. But here the witness was a stranger to those who spoke of what he said. Indeed, there was nothing but his declaration made in the city of New-York to show that he resided elsewhere. It is to be presumed his residence was where he then was, and whoever asserts otherwise, is bound to prove it. As there was no competent evidence of the non-residence of the witness, or that his attendance could not have been secured by ordinary and reasonable diligence, the deposition should have been rejected.
New trial ordered.