
    No. 5709.
    State of Louisiana vs. Moses Harvey.
    On the trial oí this ease objection -was made by the defendant to. the admission in cvidonco oí tho written deposition oí a witness, taken before tho committing magistrate and offered by the State, on the ground that the constitution of tlio united States, as woll as that of Louisiana, gives every accused person on trial the right of being confronted face to face by the witnesses against him, and that such proceeding as was had in tho case deprives him in effect of said right.
    The court a g.u,a did not err. Before admitting the deposition it was proved that the witness was absent and could not be found; that, on the preliminary examina-, tion, he testified in prosonco of tho accused; that his testimony was reduced to writing, read to and subscribed by him in the presence of the accused, and attested by the committing magistrate. This seems to bring the ease within the common-law rulo to tho offoct “ that if duo diligence has been used, and it is mado manifest that tho witness has boon sought for and can not bo found, or if it bo proved that he was subpenaed and foil sick by tho way, his deposition may bo i’cad, for that, in such caso, he is in tho samo circumstances with regard to tho party that is to use him as if ho wore dead.”
    APPEAL from tlio Superior Criminal Court, parish of Orleans. Atocha, J. Criminal case.
    
      P. William Kramer, for defendant and appellant.
    
      A. P. Wield, Attorney General, for plaintiff and appellee.
   Howell, J.

Tho defendant has appealed from a judgment sentencing him to imprisonment at hard labor in the State Penitentiary for the term of four years for the crime of manslaughter, and he urges before u» a bill of exceptions taken to the admission in evidence of the deposition-of one George Morris, taken before the committing magistrate and offered by the State.

The ground of objection is “that tho constitution of the United States, as well as that of Louisiana, gives every accused person on trial tho right of being confronted face to face by witnesses against him, and that such proceeding in effect deprives him of suoli right.”

Before admitting the deposition it was proved that the witness was absent and could not bo found; that on the preliminary examination ho testified in presence of the accused- that his testimony was reduced to writing, read to and subscribed by him in presence of the accused, and attested by the committing magistrate.

■ This seems to bring the case within the common-law rule to the effect “ that if due diligence has been used, and it is mado manifest that the witness has been sought for and can not be found, or if it be proved that he was subpenaed and fell sick by the way, his deposition may be read, for that, in such case, ho is in the samo circumstances as to the party that is to use him as if ho woro dead.” See Archbold’s Criminal Prac-tico and Pleading, seventh edition, vol. 1, p. 479, note(l); B. N., p. 289; Hawk. P. C., b. 2, c. 46, sec. 18.

If the accused had tho witness “ faco to face ” on the preliminary trial and had the opportunity to cross-examine him, his constitutional right, invoked by him, is not violated by the introduction, on the final trial, of the deposition of such witness, where it is shown tnat the witness can not be produced. Otherwise it would bo in the power of the accused to deprive the Stato of tho testimony of all witnesses against him by preventing their attendance through some undue influence, or tho State would be deprived of the proof by tho death of the witness; for trie constitutional right would apply equally in both cases, and thus convictions might never bo obtained.

Wo are constrained to say that the judgo did not err in admitting the deposition.

Judgment affirmed.

Rehearing refused.  