
    The People vs. Newman.
    In a criminal case, the public prosecutor will not be allowed to use the testimony given by a witness at a former trial of the same indictment, though he be absent from the state.
    
    
      Quere, whether even the death of the witness will authorize a resort to his former testimony by the public prosecutor.
    Certiorari to the mayor’s court of the city of Rochester, where Newman was tried and convicted of grand larceny. There had been a previous trial of the prisoner under the same indictment, followed by a disagreement of the jury. OneBlackman was sworn at the first trial as a witness for the people; and, he having since removed from the state, the district attorney proposed to give in evidence his former testimony. ' The prisoner’s counsel'objected; but the court received the evidence. Exception. The jury rendered a verdict of guilty; whereupon judgment was stayed, and the proceedings brought to this court by certiorari, pursuant to 2 R. S. 736, § 27.
    
      F. M. Haight, for the defendant,
    insisted that the mere absence of the witness from the state was not sufficient to let in the testimony given by him on the former trial. He cited Cowen &. Hill’s Notes to Phill. Ev. 571, 576; Merrill v. The Ithaca & Owego Rail-Road Co., (16 Wend. 586, 594, 5 ;) The People v. Restell, (3 Hill, 289.)
    
      J. W. Gilbert, (district attorney,) contra.
    
   Per Curiam.

It seems to be settled in this court, that nothing short of the witness’ death can be received to let in his testimony given on a former trial. (Powell v. Waters, 17 John. 176; Wilbur v. Selden, 6 Cowen, 162; and see Jackson v. Bailey, 2 John. 17; Beals v. Guernsey, 8 id. 446; White v. Kibling, 11 id. 128; Crary v. Sprague, 12 Wend. 41, 44, 5.) But if the rule were otherwise in respect to civil cases, we are of opinion that it should not be applied to criminal proceedings. This was expressly adjudged in Finn v. The Commonwealth, (5 Rand. 701, 708.) It was there said by Brockenbrough, J, that even the death of the witness would not, in a criminal case, be allowed as a reason for receiving his former testimony; (and see 2 Ev. Poth. 229; 1 Tenn. Rep. (Overt.) 229;) though a different opinion was intimated in Crary v. Sprague, (12 Wend. 44, 5.) It is not now necessary, however, to decide that point, the present case being one of mere absence from the territorial jurisdiction of the court.

New trial granted.  