
    No. 8677.
    The State of Louisiana vs. John Jordan.
    The testimony taken on preliminary examination of a witness who is a non-resident, only accidentally present in the state at the time, and who has never since been here, will be competent evidence at the trial of the accused, where the latter was confronted with the witness at the preliminary examination and was afforded the opportunity of cross-examining him.
    In an indictment for obtaining goods under false pretenses, where amongst the pretenses it is charged that the accused represented that “ he wanted to buy goods on credit, in the fair and usual course of trade, etc,” and that on the faith of such representations, the goods were delivered to him, this sets out such a colloquium as to a bargain of sale as connects the delivery of the goods therewith, and will support the indictment without more specific statement of the nature of the bargain.
    APPEAL from the Criminal District Court for the Parish of Orleans. JOnsenherg, J.
    
      W. JO. JEv&ns for Defendant and Appellant:
    The deposition of a witness taken on the preliminary examination before a magistrate, is not admissible on the trial before the jury, if the State or prosecutor can, by due diligence, bring the witness into court. The right to use such evidence grows out of the great doctrine of necessity. Wharton Cr. Ev., Sec. 229; IT. S. vs. Macomb, 5 McLean, 287; State vs. Staples, 47 H. H 113 ; Powell vs Waters, 17 Johns. 176; Wilbur vs. Sheldon, 6 Cow. 162; Crary vs. Sprague, 12 Wend. 41; Berney vs. Mitchell, 34 N. J. L. 337; Broggvs. Com., 10 G-rat. 722; Summons vs. State, 5 0. St. 325; Bergen vs. People, 17 111. 426; Kendrick vs. State, 10 Humph 479 ; Dupree vs. State, 33 Ala. 380; Hobson vs. Harper, 2 Blackf. 309; Collins vs. Com., 12 Bash. 271; Gerliauser vs. Ins. Co., 7 Nev. 174.
    As to the doctrine of necessity. 1 Bish. Cr. Proc 3d ed. Sec. 1195; Sullivan vs. State, 6 Texas Ct. Ap. 340.
    Where the charge is obtaining goods by false pretenses, the judgment should be arrested when the information f.uls to allege any bargain, or colloquium as to a bargain by which the goods were obtained. Com. vs. Strain, 10 Met. 521; State vs. Philbriek, 31 Maine 401 ; State vs. Bonnell, 46 Mo. 395.
    
      J. G. Egan, Attorney General, for the State, Appellee.
   I.

Tlie opinion of the Court was delivered by

Fenner, J.

The bill of exceptions to the Judge’s ruling in admitting the testimony of a witness taken on a preliminary examination cannot be sustained under the circumstances disclosed therein. The witness was a non-resident of the State, who only chanced to be here at the date of the preliminary examination and had never since been in the State. The accused had been confronted with him at the examination and had the opportunity of cross-examining him'. No amount of diligence on the part of the prosecution could have secured his attendance at the trial. The case falls fully under the doctrine of necessity, under which such evidence is held to be admissible. 1 Bishop Cr. Proc., Sec. 1195 ; Wharton Cr. Ev., Sec. 229.

We have ourselves had occasion to consider and apply this doctrine in a case of State vs. Stewart, recently decided at Opelousas, and not yet reported.

II.

The charge against the accused was obtaining goods by false pretenses. It is urged, on motion in arrest of judgment, that the information was fatally defective, because it does not allege any bargain or colloquium as to a bargain uuder which the goods were obtained.

Amongst the false pretenses set out in the information is this: that the accused represented that he then and there wanted to buy goods on credit, of the said firm of Flash, Preston & Co.,in the fair and usual honest course of trade, with intent to pay honestly for them, etc.” And this is almost immediately followed by the statement that said Flash, Preston & Co., on the faith of said pretenses, did deliver goods, etc.

We think this sets out such a colloquium as to a bargain of sale as connects the delivery of the goods therewith, and takes the case out of the authority of Strain’s case, 10 Metcalf, 521, and the other cases founded therein, quoted by defendant’s counsel, from 31st Maine, 401, and 46 Mo. 395. This case falls more properly under the authority of Com. vs. Hulbert, 12 Metcalf, 446, where the indictment, not substantially differing from the . present, was sustained. See also, People vs. Skiff, 2d Parker, (N. Y.) p. 139.

Judgment affirmed.  