Opinion
March 1807.
What the prosecutor, as a witness, swore upon a previous trial in a criminal case, is not admissible in evidence against the defendant on another trial. [Cited and expressly overruled in Kendrick v. State, 10 H. 479; and see Bostick v. State, 3 Hum. 344; and Johnston v. State, 2 Y. 58, where it is, in effect, overruled without being cited.]
TRIMBLE and CAMPBELL, for the defendant, objected, and relied upon the Constitution, which provided that the witnesses should be confronted with the accused.
Petit Larceny — Appeal from Anderson County Court. — The prosecutor since the trial in the County Court died. The attorney-general offered to prove what the prosecutor deposed in the County Court.
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 authorities were read to prove this.
The testimony cannot be received. In England, in, criminal 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 affected, 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.