State v. Virden

Harrington, J., delivering the opinion of the Court: It is well settled that the testimony of a deceased witness in a criminal case, given at a former hearing of the same case is ad [33] missible in evidence for the defendant on the ground of necessity, the parties and the issue being precisely the same. The objection of lack of opportunity to cross-examine the deceased witness is met by the fact that the state had full opportunity to cross-examine him when he testified at the former trial. Stephen’s Digest on Evidence, 107; Chamberlayne’s Hand Book on Evidence, 642; Wharton’s Criminal Evidence, vol. 1, §§ 227, 228; Underhill’s Criminal Evidence, § 261; 8 R. C. L. (Criminal Law) § 209; Bishop’s New Criminal Proc. §§ 1195, and 1196. In this state such evidence has already been held to be admissible in civil cases. Kinney v. Hosea, 3 Harr. 397. See also Rogers v. Rogers, 6 Penn. 267, 66 Atl. 374. The evidence is therefore admitted; whether it would, however, be admissible if offered by the state, might present a different question.