(concurring.) Upon the trial the defendant offered toread the evidence of Amasa B. Waters, given upon a former trial. The testimony was important and material, tending to support the defense. It was objected to, and excluded. At the. time the evidence was given by the witness he' *189resided in Georgia, and was past 77 years of age. To the exclusion of the evidence an exception was taken. Prior to the evidence being offered on this trial, evidence was given tending to show that the witness had returned to the state of Georgia. We think sufficient evidence was offered tending to establish the death of the witness, and that his death was established prima facie, and that it was erroneous to exclude it. While the ruling is in some sense a matter of discretion, we think that it is reviewable. Jackson v. Waldron, 13 Wend. 199, Section 392 of the Code of Criminal Procedure provides that the rules of evidence in civil' cases are applicable also to criminal cases. People v. Murphy, 101 N. Y. 126, 4 N. E. Rep. 326, recognizes the rule laid down in the section just mentioned. It seems to be well settled that, where the question of the death of the party or witness is involved collaterally and incidentally, “resort may be had to what is commonly said and understood to be true among the immediate relatives and family connections of the party to whom the inquiry relates.” Clark v. Owens, 18 N. Y. 442; 2 Greenl Ev. p. 263, § 78; Id. p. 266, and note. In Bradley v. Mirick, 25 Hun, 272, the testimony of a witness was offered on a second trial, he having died subsequent to the first trial. An objection was taken that, inasmuch as he was not cross-examined on the first trial, his testimony ought to be excluded; it was so excluded by the trial court. We held this was error, and our decision was affirmed in the court of appeals, (91 N. Y. 293,) as appears by the opinion, although a note accompanying the syllabus erroneously states that the case was reversed. In Jackson v. Etz, 5 Cow. 319, it was said: “The fact that a soldier, or any other individual, was missing at a particular time, accompanied with a report and general belief of his death, must be, in many cases, not only the best, but the only, evidence which can be supposed to exist of his death. It is, perhaps, reasonable that it should be held prima facie sufficient. Doe v. Griffin, 15 East, 293. ” The evidence of Waters was erroneously excluded. The foregoing views, as well as those expressed in the opinion of Martin, J., lead me to vote for a reversal of the conviction.