State v. Virden

New York Court of General Session of the Peace

State v. Virden

118 A. 597, 32 Del. 32, 2 W.W. Harr. 32, 1922 Del. LEXIS 27

New York Court of General Session of the Peace·Decided June 28, 1922·Published·Cited by 3 cases

Opinion

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.

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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.

State v. Virden, 118 A. 597, 32 Del. 32, 2 W.W. Harr. 32, 1922 Del. LEXIS 27 (N.Y. Super. Ct. 1922).

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Opinion

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