
    Bebee v. The People.
    In general, depositions taken before a committing magistrate pursuant to 2 R. S. 708, 9, § 13 et seq., cannot be read in evidence at the trial, on the part of the people, unless it be first shown that the prosecutor is unable to procure the atten. dance of the witness by reason of his death, insanity, illness or collusion with the prisoner. Per Nelson, Ch. J.
    Where, however, on a trial before a court of special sessions, the prisoner’s counsel agreed that one of the depositions thus taken might be read, provided time was aEowed him to procure testimony in order to show the witness’ incompetency from defect of religious belief, and a postponement for several days accordingly took place; held, that, the court having afterwards heard such testimony and decided in favor of the witness’ competency, the prisoner could not recede from his agreement and prevent the deposition from being read.
    Otherwise, semble, had it appeared that the agreement was made hastily by the prisoner, or under a mistaken notion of the law, and that no change in the course of proceeding on the part of the prosecution occurred in consequence of it. Per Nelson, Ch. J.
    Where, after a trial had commenced before a court of special sessions, a postponement took place at the instance of the prisoner for several days, and the jury ■ were allowed to separate in the meantime, having been previously admonished by the court, however, not to converse with any one in relation to the case; held, not a sufficient ground for reversing the conviction, especiaUy as no misbehavior on the part of the jurors was aEeged.
    Certiorari to a court of special sessions, where Bebee was convicted of maliciously maiming a horse, the property of one Spicer. The trial took place before three justices and a jury, and lasted several days. In the course of the trial, the prosecutor having failed to procure the attendance of one Dutton whose deposition had been taken before the committing magistrate, it was proposed by the prisoner’s counsel to admit the deposition to be read in evidence, provided time were allowed him to obtain witnesses in order to show Dutton’s incompetency for want of religious belief. This was agreed to by the prosecutor, and the trial was accordingly suspended for three days. In the meantime, the jury were allowed to separate, having been previously admonished by the court, however, not to converse with any one in relation to the case. At the expiration of the three days, the court and jury convened, and the trial proceeded. Several witnesses were examined touching the alleged defect of religious belief on the part of Dutton, but the court decided that he was competent. The prisoner’s counsel then objected to the reading of Dutton’s deposition, insisting that the agreement to receive it was invalid, and not binding on the prisoner. The court ruled otherwise, and the deposition was read. After hearing further testimony, the cause was submitted to the jury, who found the prisoner guilty; and thereupon the court sentenced him to thirty days imprisonment, and to pay a fine of $25. The prisoner sued out a certiorari.
    
      R. Judson, for the plaintiff in error.
    -, for the people.
   By the Court, Nelson, Ch. J.

But for the consent of the prisoner’s counsel, Dutton’s deposition could not have been received in evidence, inasmuch as no proper foundation for admitting it was laid by proving the witness’ death, insanity, inability from sickness to attend the trial, or collusion with the prisoner. (Roscoe's Crim. Ev. 50, 51; The People v. Restell, 3 Hill, 289.) Such consent having however been deliberately given, I think the court below were right in refusing to allow its withdrawal. I concede, if the agreement to admit the deposition had been made hastily, or under a mistaken impression of the law, and the prosecutor’s course of proceeding had not been at all influenced by it, the prisoner’s counsel should have been permitted, after changing his opinion, to retract at any time before the evidence was received. But here, there was a sort of stipulation deliberately entered into by the counsel for the respective parties, with the approhation of the court, which, in a measure, changed the course of the trial and suspended further efforts to procure the attendance of the witness. After this, to allow the prisoner’s counsel to retract, would be to sanction an abuse of the time and indulgence of the court, and perhaps operate an injury to the adverse party.

In respect to the delay of the trial and separation of the jury in the mean time, it is not for the prisoner to take advantage of the irregularity, if it be such, as the indulgence was granted on his application and for his benefit. Still, if it had appeared that any of the jurymen, while thus separated, were tampered with, had held improper conversations in respect to the complaint, or in any way misbehaved themselves or abused the indulgence of the court, we should feel it our duty to interfere and quash the proceedings. But I do not find the slightest imputation against them. For aught that appears, they observed strictly the admonition of the court to hold no conversation during the interim about the complaint

Conviction affirmed. 
      
      
         See Wilson v. Abrahams, (1 Hill, 207.)
     