
    UNITED STATES v. FRENCH.
    (District Court, D. Oregon.
    September 12, 1902.)
    No. 4,553.
    1. Criminal Law—Right of Accused to Confront "Witness—Deposition.
    The deposition of a witness since deceased, taken on notice to an accused, but without his consent or presence, is not admissible against him on his trial.
    Prosecution for Sending Obscene Matter through the Mails.
    On motion for new trial.
    John H. Hall, for United States.
    Waldemar Seton, for defendant.
   BELLINGER, District Judge.

This is a motion for a new trial upon an indictment for sending obscene matter through the mails, and it is based upon errors of the court on the trial in admitting the testimony of a witness taken before a commissioner on the preliminary hearing, and in admitting the deposition of the same witness taken before a commissioner thereafter, the witness having died before the trial. The deposition of the deceased witness was taken upon notice to the defendant, but without his presence, or that of any one in his behalf. It has'been decided by the supreme court of this state that a defendant who had consented in open court, in order to secure a postponement of the trial, to the taking of the deposition of a sick witness, and who was present at the taking of the deposition and cross-examined the witness, could not complain that he had not been given the right to meet the witness face to face; that he might waive the right to be confronted with the witnesses against him. State v. Bowker, 26 Or. 313, 38 Pac. 124. Here the deposition was taken in a distant part of the state from where the court was held and the defendant’s attorney resided, without the defendant’s consent or presence, and was not admissible. The testimony taken on the preliminary examination, when the defendant was present, if admitted, fails to establish the material fact sought to be proved,— that the letters in evidence were the letters proved to have been mailed by the defendant, as to which, without the deposition in question, there was no evidence.

The motion for a new trial is allowed.  