dissenting: I dissent from so much of the opinion read by Mr. Justice Spencer as the organ of the court as sustains the ruling of the court below in admitting, against the objection of the counsel for the accused, the deposition of a witness taken on the committing trial to contradict the admissions made by the counsel for the State embodied in the affidavit of the accused. I think this was error.
The State, by making the admission, induced the accused to go to trial, on the faith and attestation that the statements of fact in the affidavit should be taken as the evidence of the witnesses, and contained no basis for the subsequent introduction of evidence of different statements at another time, the right to inquire into which had, I think, been waived by the admission of the affidavit as independent evidence, the deposition was liable to the objections made. It must be supposed to have influenced the verdict.
The court should not have allowed the ease to be reopened to receive this evidence, and could not control its effect. A new trial should be ordered.