
    Wightman, plaintiff in error, vs. The People, defendants in error.
    
    A prisoner under indictment cam admit, as testimony to be considered by the jury, on the trial, depositions of non-resident witnesses, taken prior to the trial, or de bene esse, by his consent and im his presence.
    Where the prisoner, both before and at the trial, consented that depositions so taken should be read in evidence on the trial; held that such consent was a waiver of more formal proof, and was binding upon the prisoner.
    ERROR to the Court of General Sessions of the city and county of New York, to review a judgment of conviction for grand larceny.
   By the Court, Brady, J.

The plaintiff in error was indicted for grand larceny, and convicted. On the trial the only exception taken was to the following question: “State whether the prisoner, Wightman, said anything to you as to being in company with David C. Hill at Cortland street on the night in question ?•” This inquiry was in rebuttal, the plaintiff in error having sworn that he was not at the ferry at the foot of Cortland street where the crime was alleged to have been committed; and it is conceded that if that be any evidence in the case imputing crime to him the exception is valueless. The evidence upon which the people mainly relied was that of David C. Hill and Richard S. Wilson, both of whom were examined prior to the trial, or de bene esse, and whose depositions were taken before Roswell W. Jerome, a notary public of this city. The examination of these witnesses was thus taken because they were not residents of this state. It was conducted in the presence of the plaintiff in error, and a cross-examination of one made on his behalf. It is insisted that these depositions could not be received as evidence, although it was agreed that they should be read at the trial, and notwithstanding that at the trial they were read by consent of the counsel of the plaintiff in error and, of course, in the presence of the latter. It is supposed that the ruling in the case of The People v. Cancemi (18 N. Y., 128) has some bearing upon this question, but it has not. The objection there was to the constitutional organization of the court by which the prisoner was tried, and it was determined that there being but eleven jurors there was a failure of jurisdiction, which could not be supplied by the consent of the prisoner. He could not confer it. In the case of Maurer v. The People (43 N. Y., 1) it was held that instructions given to the jury by the presiding justice, in the absence' of the prisoner, was error, although his counsel was present consenting; but it was upon the ground that the statute declares that no person indicted for any felony can be tried unless he be personally present during such trial, and that “during such trial” embraced all the incidents of such a proceeding, including the charge of the justice to the jury and the instructions given them subsequently. The court had not the jurisdiction, therefore, which authorized the act complained of to be done. In the case of Qaneemi it was said, however, that by consent objections to jurors might be waived; the court might be substituted for triors to dispose of challenges to jurors; secondary in place of primary evidence might be received; admissions of facts allowed, and in similar particular's as well as in relation to mere formal proceedings generally, consent would render valid what without it would be erroneous. And it was further suggested that a plea of guilty, whatever the grade or degree of crime, would be received and acted upon if it is made clearly to appear that the nature and effect of it are understood by the prisoner. All these concessions involve the waiver of rights, but do not conflict with positive statutory enactments, or prohibitions of the constitution. If the prisoner can admit facts, or secondary in place of primary evidence, he can admit the deposition of a witness taken on his consent as testimony to be considered by the jury. The depositions herein were, however, taken before a notary by consent, in the presence of the prisoner, and at the trial read by his consent. There is no prohibition of such a proceeding. The legislature has provided for the taking of the evidence, de bene esse, of witnesses who do not reside in this state, (Laws 1844, p. 476, § 11; People v. Hadden, 3 Denio, 220,) and the examinations under consideration were no doubt initiated under its provisions, but the formal compliance with its details dispensed with as a tiiatter of convenience, for all parties. There is nothing, therefore, in principle against this mode of procedure, and no authority against its use has been produced. The de bene esse examination of witnesses is often very essential to the administration of criminal justice, and when done without compliance with the details of the statute, but by consent of the prisoner, it should not be disregarded. He may insist upon his rights, or waive them in this respect, if not before, certainly at the trial. On an indictment for perjury, it appeared that the attorneys on both sides had agreed that the formal proof should be dispensed with and part of the prosecutor’s case admitted, but Lord Abinger said: “I cannot allow any admission to be made on the part of the defendant, unless it is made at the trial by the defendant or his counsel,” (R. v. Thornhill, 8 C. & P., 575.) In this case, as already shown, the consent was both before and at the trial, and doubtless in reference to the statute by which such a proceeding could have been taken. Whether, however, the statute was in contemplation or not, the consent was a waiver of more formal proof, and was binding upon the plaintiff in error.

[First Department, General Term at New York,

November, 1873.

For these reasons the judgment should be affirmed.

Judgment affirmed.

Ingraham and Brady, Justices.]  