
    STATE vs. ATKINS.
    
      Pettit Larceny—Appeal from Anderson county court.
    
    On an appeal in a criminal case, what a witness, who is since dead, swore in the county court cannot be received in evidence against the defendant.
    The prosecutor since the trial in the county court died. The attorney general offered to prove, what the prosecutor deposed in the county court.
    Trimble, and Campbell, for the defendant,
    objected and relied upon the constitution, which provided, that the witnesses should be confronted with the accused.
    The attorney general insisted that this provision of the constitution, never was meant to go any farther than Magna Charta, had done; that in England such testimony would be received; several authories were read to prove this.
   Per Curiam.

The testimony cannot be received. In England, in crimininal cases other than informations for misdemeanors, it could not. No case in point is recollected in the books.—The principal reason is that trials at Nisi Prius, where agreeably to Magna Charta, witnesses are confronted, are not generally reported. Though no cases in point have been produced, we understand that evidence could not be received agreeably to Magna Charta. All inferior offences, are tried in our county courts and even petit larceny where limb is effected, but the parties have a right of appeal to this court ; frequent deaths may take place between the trial there and here, and it seems to us, that it would be dangerous to liberty to admit such evidence. It would go a great length in overthrowing this wise provision of the constitution. An inconvenience which could not exist in England, where there is no appeal as to matter of fact, as here. The evidence cannot be received.  