
    No. 1145.
    The State of Louisiana vs. Charles B. Stewart.
    Section 7 of Act No. 44 of 1877, does not repeal or conflict with Section 992 of the Revised Statutes, requiring, in certain criminal cases, the service on the accused of the list of the jury which are to pass on his trial, two entire days before his trial.
    The list of jurors ordered tobe drawn by the Judge, in the exercise of the discretion vested by Act 44, Section 7, must be served on the accused in accordance with Section 992, Revised Statutes.
    In a preliminary examination, the accused has the right of having the testimpny of witnesses in his behalf, taken down in writing, ‘certified and preserved, and the testimony of a witness thus taken will be admitted in evidence at the jury trial, if the witness is shown to be absent, a non-resident of the State, and not obtainable; without any fault of the accused.
    APPEAL from the Twelfth District Court, Parish of Bapides. 'Harbin, J.
    
      IS. Cf. Hunter, District Attorney, for the State, Appellee:
    The law does not require that the list of tales jurors he served on the accused two days before trial. 15 An. 297; 30 An 536; State vs. Gunter, 14 An. 461; 11 An. 685. Evidence taken without authority of law is ex parte — binds no one and cannot he used, unless by consent of all parties.
    The law which permits the introduction of the testimony, taken on preliminary trial contradictorily with the accused, refers to the testimony of the State. The State cannot use this testimony without first showing that due diligence to procure the attendance of the witness had been used. 28 An. 105, State vs. Moses Harvey. The policy of our law is to have the witnesses testify in the presence of the jury, and it is only under extraordinary circumstances, and when all of the forms of the law have been complied with, that even the State, whose testimony has been Teduced to writing, in conformity to law, will be excused or permitted to deviate from this requirement. The law relating to the introduction of testimony of a witness who is dead has no application when the witness is living.
    There is no law authorizing the taking in writing by the committing magistrate tbe testimony of the defense, and evidence thus taken, without authority of law and against the protest of the State, binds neither the accused nor State. R. S. See. 1010.
    
      W. J?. Blackman and J. &. White, for Defendant and Appellant:
    "Where, as iu this case, the accused had been served with a copy of the indictment and venire ; had been arrainged, had plead, and his case set for trial, for a particular day, and the District Judge ordered the Jury Commissioners to draw forty additional jurors, to serve as talesmen for the third week, and forty more to serve as regular jurors for the fourth week of his court, the accused is entitled to the service and the delay of the list of jurors so drawn. Revised Statutes 1870, Sec. 992; Act 44, Sec. 7, 1877.
    The committing magistrate, on a preliminary trial, ought to take and certify the depositions in favor of the accused, as well as those in favor of the State. Chitty’s Criminal Daw, Yol. 1, p. 64.
    “Themethod of trial, the rules of evidence, and all other proceedings whatsoever, in the prosecution of crimes,. offenses and misdemeanors,” in Louisiana, shall he according to the common law of England, as it existed in 1805. Revised Statutes, Sec. 976.
    Depositions of witnesses taken on a preliminary trial, either for the State or the accused, are admissible in evidence for either party, where the witness is absent from the State, dead or unobtainable. Wharton’s Criminal Evidence, paragraphs, 2á9, 230 ; Bishop’s Criminal Procedure, Yol. 1, p. 1083; 28 An. 105; 33 An. 1332.
   The opinion of the Court was delivered by

Poems, J.

The defendant urges two errors to his prejudice, during the progress of his trial, under an indictment for murder:

1. He complains that he was forced to trial over his objection, without legal service on him of the full list of the jury which were to pass ou liis case.

2. He charges error to the ruling of the Judge, iu excluding the written testimony of a witness who liad testified in his behalf at the preliminary examination, and whose attendance could not be obtained at tiie trial by the jury.

1. The record shows, that a few days previous to the trial of this case, the court ordered the Jury Commissioners to draw forty additional jurors, to serve as talesmen for the third week of the term ; that the list of jurors thus drawn was served on the accused on the day of his trial only, and that after exhausting the regular panel, four of the jurors, thus drawn, were sworn and served in the jury which tried the case. The order of the Judge was predicated ou Section 7 of Act No. 44 of 1877, which reads as follows :

“ Whenever the District Judge thinks proper, he shall require the Jury Commission to draw additional jurors for service, either as regular jurors, or as talesmen, and they shall be summoned without delay, or within the time the said Judge requires ; but nothing' herein shall ho construed so as to limit the right of the Judge to order the summoning of talesmen from among the bystanders, or persons in proximity to the courthouse.”

The question presented is, therefore, whether the list of jurors drawn as talesmen, under the Section just quoted, is to be governed by Section 992 of tlie Revised Statutes, which imperatively requires, that in all cases where the punishment may be death, or imprisonment at hard labor for seven years or upwards, a list of the jurors which are to pass on the trial of the accused, shall be served on him at least two entire days before the trial.

As the title of Act No. 44 of 1877 contains no reference to Section 992, it is clear that tire legislator did not purport, as he could not constitutionally pretend, to amend that Section, which therefore remains in full force, and hence, the accused was entitled to legal service of the list or lists of jurors drawn, and which were to pass on his case. As the legislature had directed in other Sections of Act 44 of 1877, that the regular jury should be drawn at least fifty days previous to the next term of the court, the object in enacting Section 7 was to provide for the possibility of the need of additional jurors, which could not have been foreseen before the opening of the term, and previous to the action of the Grand Jury. Hence, the Judge, after considering the number and character of criminal cases to be tried, the number of the regular jurors, absent or not found, or excused, was vested with' the discretionary power to provide for the deficit by drawing additional of jurors or talesmen, without the delay prescribed for the drawing the regular panel.

But we see nothing in the enactment which excepts jurors, so drawn, from the operation of Section 992, R. S., which secures to the accused a valuable and very important right.

The fact that the jurors drawn under that Statute are designated as talesmen, does not assimilate them to the talesmen who are called from among the bystanders, a list of whom is not, and cannot be made in advance, and cannot, therefore, be served on the accused.

The very Section which authorizes the drawing of such jurors, expressly recognizes the wide difference between such talesmen jurors, and the talesmen from the bystanders, or persons in proximity to the courthouse. We think, therefore, that the District Judge erred in forcing the accused to trial, without legal service on him of the list of talesmen jurors which were to pass on his trial.

2. Tlie second bill of exceptions presented by the defendant shows, that at his preliminary examination, under the charge for which he was subsequently indicted and convicted of manslaughter, he introduced a witness who was shown to be afflicted with a disease of the lungs, incurable in its character, and who was a non-resident of the State; and that for those reasons, his counsel requested the District Judge to order his testimony to be taken down in writing and properly certified. The order was given, and the testimony in chief was ■written and duly certified; but his cross-examination was not written, on objections made thereto by the District Attorney.

At the trial, the witness was shown to be absent from the State, and to be in the State of Florida, where he resided; whereupon the accused offered his testimony, as written at the preliminary examination, which testimony was excluded on the objection of the District-Attorney.

We think that the reasons advanced by the Judge, in support of his ruling, are untenable, and that he erred in excluding the testimony. It is true, as contended by the District Judge, that Section 1010, E. S., directs that in preliminary examinations, the depositions of the State witnesses alone are to bo taken down in writing ; but it is equally true, that in this State, the forms of indictment, the method of trial, rules of evidence, and all other proceedings in the prosecution of crimes, must be acccording to the common law of England, as it existed in 1805, unless otherwise provided. 33 An. 1332, State vs. McNeil. Now, under the common law, criminal jurisprudence has firmly established the right of the accused to be defended by counsel, and to have his witnesses heard at the preliminary examination of the offense charged against him. And under provisions of the law of England, directing that the testimony of witnesses against the accused at a preliminary examination, be reduced to writing, it has been held that the Justice ought to take, and certify as well the information, proof and evidence, which tend in favor of the prisoner, as thosewhich are brought forward against him.” Chitty’s Criminal Law, Yol. 1, pp. 60 and 64.

In keeping with these rules, this Court admitted in evidence the testimony of a witness taken in writing at the coroner’s inquest, in favor of the accused ; the witness having died before the trial before the jury. State vs. McNeil, 33 An. 1332, and authorities therein cited.

In the present case, the witness being shown to be out of the State, and, therefore, not within the process of the Court, the same reason existed for the admissibility of the testimony of the witness taken down in writing at the preliminary examination.

The accused had foreseen the possibility of the death, or of the absence of that witness, at the time of his trial, and had given full and fair knowledge of the facts, which made his anticipated absence probable, to the State’s Attorney; and had, in view of such emergency, moved that his testimony be taken in writing and preserved,

No attempt -was made by the State to show that the accused could, by due diligence, have procured the attendance of his non-resident witness j and it is well settled, that the absence of such a witness would not have been a good ground for a continuance. State vs. Nicholson, 14'An. 798. We find no force in the reason of the District Judge, that the testimony should have been excluded, because the cross-examination had not been reduced to writing. It was within the power, and it was manifestly the duty of the Judge, to have overruled tlie unfounded objection of the District Attorney to the writing of the witness’ testimony under the cross-examination, and the accused cannot be deprived of his legal testimony by the course pursued by the District Attorney and by the Judge.

Under the peculiar circumstances of this case, the excluded testimony was undoubtedly admissible, and the accused has been injured by its rejection.

It is, therefore, ordered, that the verdict of the jury be set aside, and the judgment appealed from annulled and reversed -, and it is now ordered, that this cause be remanded to the District Court for trial according to law, and to the views herein expressed.  