Mr. Justice Bean
delivered the opinion of the court.
1. The motion to set aside the information was properly overruled. It was not made until after a demurrer had been interposed and overruled,' and therefore came too late. State v. Smith, 33 Or. 483 (55 Pac. 534); State v. McElvain, 35 Or. 365 (58 Pac. 525). And, moreover, it was without merit.
2. The office of prosecuting attorney is provided for, and its duties defined, in part, by Section 17, Article VII, of the Constitution of Oregon. The office therefore cannot be abolished or the constitutional duties thereof abridged by the legislature.
3. There is nothing, however, in the constitution which restricts the legislature or lawmaking power from providing that such officer may have deputies to act in his name and stead. Nesbit v. People, 19 Colo. 441 (36 Pac. 221).
4. The legislature made such a provision by the laws of 1903 (Gen. Laws 1903, Sp. Sess. p. 32), and the act of the deputy in signing and filing the information was the act of his principal, and therefore satisfies the requirements of Section 9, Article I, of the Constitution, which [562]*562declares that no warrant, shall issue but upon probable cause supported by oath or affirmation. State v. Guglielmo, 46 Or. 261 (79 Pac. 577: 80 Pac. 103: 69 L. R. A. 466).
5. Upon the former appeal the judgment was reversed, and a new trial ordered. From the entry of judgment of the record in the court below, the action was pending in that court for trial, notwithstanding the former verdict and judgment. Section 1489, B. & C. Comp. The plea of a former conviction was not in form or substance as required by the statute (Section 1367) and was not sufficient to constitute such a plea at common law. Mr. Bishop says the substantial allegations at common law are:
“That heretofore, at a court which is mentioned, an indictment whose terms are fully recited was found against the defendant under a name stated, which may be that in the present indictfiient or not according to the fact; that he pleaded thereto, and was convicted or acquitted as the fact was; and the sentence thereon is set out. The plea then avers that the defendant in the former indictment was the same person as in the present one, and the two offenses a,re the same.” 1 Bishop, N. Crim. Proc. § 810.
The plea in this case contains none of the averments which Mr. Bishop says are essential, but only that defendant had been found guilty by the verdict of a jury, without any allegation that he had been indicted or informed against, or that he pleaded thereto, or that a trial had been had in any court of competent jurisdiction, and a judgment of conviction rendered therein. The plea was therefore bad on its face, either as a plea of former conviction or former jeopardy, and was properly stricken out. State v. Salge, 2 Nev. 321; Shubert v. State, 21 Tex. App. 551 (2 S. W. 883); Wortham v. Commonwealth, 5 Randolph, 569.
6. The Constitution (Section 11, Article I) provides that in all criminal prosecutions the accused shall have [563]*563the right “to meet the witnesses face to face,” and it is contended that the admission of the testimony of the witnesses Johnson and Hogeboom, given on the former trial of the accused, was an infringement, of this right. The Constitution of the United States, and of most states of the Union, contains similar provisions, and the general, if not the universal, holding- of the courts is that their essential purpose is to secure to an accused the right of cross-examination, and if he has once enjoyed that right no constitutional privilege is violated, by the admission of the testimony of such a witness, who is dead or absent from a state, at a subsequent trial. Underhill, Crim. Ev. § 255; 2 Wigmore, Ev. § 1397; State v. Nelson, 68 Kan. 566 (75 Pac. 505); People v. Dowdigan, 67 Mich. 95 (38 N. W. 920); State v. Byers, 16 Mont. 565 (41 Pac. 708); Territory v. Evans, 2 Idaho (Hasb.) 651 (23 Pac. 232: 7 L. R. A. 646); Marler v. State, 67 Ala. 55 (42 Am. Dec. 95); State v. McO’Blenis, 24 Mo. 402 (69 Am. Dec. 435); State v. King, 24 Utah, 482 (68 Pac. 418: 91 Am. St. Rep. 808: note, 61 Am. St. Rep. 886). The question was thoroughly examined by the Supreme Court of the United States in Mattox v. United States, 156 U. S. 237 (15 Sup. Ct. 337: 39 L. Ed. 409), and Mr. Justice Brown, after referring-to the rule in England, and saying “we know • of none of the states (in this country) in which such testimony is now held to be inadmissible,” proceeds: “The question was carefully considered in its constitutional aspect by the Supreme Judicial Court of Massachusetts in Commonwealth v. Richards, 18 Pick. 434 (29 Am. Dec. 608), in which it was said that: ‘That provision was made to exclude any evidence by deposition, which would be given orally in the presence of the accused, but was not intended to affect the question as to what was or was not competent evidence to be given' face to face according to the settled rules of common law.’ * * The primary object of the constitutional provision in question was to prevent depositions' or ex parte affidavits, [564]*564such as were sometimes admitted in civil cases, being-used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting, the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness'; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But the general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.”
7.
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Mr. Justice Bean
delivered the opinion of the court.
1. The motion to set aside the information was properly overruled. It was not made until after a demurrer had been interposed and overruled,' and therefore came too late. State v. Smith, 33 Or. 483 (55 Pac. 534); State v. McElvain, 35 Or. 365 (58 Pac. 525). And, moreover, it was without merit.
2. The office of prosecuting attorney is provided for, and its duties defined, in part, by Section 17, Article VII, of the Constitution of Oregon. The office therefore cannot be abolished or the constitutional duties thereof abridged by the legislature.
3. There is nothing, however, in the constitution which restricts the legislature or lawmaking power from providing that such officer may have deputies to act in his name and stead. Nesbit v. People, 19 Colo. 441 (36 Pac. 221).
4. The legislature made such a provision by the laws of 1903 (Gen. Laws 1903, Sp. Sess. p. 32), and the act of the deputy in signing and filing the information was the act of his principal, and therefore satisfies the requirements of Section 9, Article I, of the Constitution, which [562]*562declares that no warrant, shall issue but upon probable cause supported by oath or affirmation. State v. Guglielmo, 46 Or. 261 (79 Pac. 577: 80 Pac. 103: 69 L. R. A. 466).
5. Upon the former appeal the judgment was reversed, and a new trial ordered. From the entry of judgment of the record in the court below, the action was pending in that court for trial, notwithstanding the former verdict and judgment. Section 1489, B. & C. Comp. The plea of a former conviction was not in form or substance as required by the statute (Section 1367) and was not sufficient to constitute such a plea at common law. Mr. Bishop says the substantial allegations at common law are:
“That heretofore, at a court which is mentioned, an indictment whose terms are fully recited was found against the defendant under a name stated, which may be that in the present indictfiient or not according to the fact; that he pleaded thereto, and was convicted or acquitted as the fact was; and the sentence thereon is set out. The plea then avers that the defendant in the former indictment was the same person as in the present one, and the two offenses a,re the same.” 1 Bishop, N. Crim. Proc. § 810.
The plea in this case contains none of the averments which Mr. Bishop says are essential, but only that defendant had been found guilty by the verdict of a jury, without any allegation that he had been indicted or informed against, or that he pleaded thereto, or that a trial had been had in any court of competent jurisdiction, and a judgment of conviction rendered therein. The plea was therefore bad on its face, either as a plea of former conviction or former jeopardy, and was properly stricken out. State v. Salge, 2 Nev. 321; Shubert v. State, 21 Tex. App. 551 (2 S. W. 883); Wortham v. Commonwealth, 5 Randolph, 569.
6. The Constitution (Section 11, Article I) provides that in all criminal prosecutions the accused shall have [563]*563the right “to meet the witnesses face to face,” and it is contended that the admission of the testimony of the witnesses Johnson and Hogeboom, given on the former trial of the accused, was an infringement, of this right. The Constitution of the United States, and of most states of the Union, contains similar provisions, and the general, if not the universal, holding- of the courts is that their essential purpose is to secure to an accused the right of cross-examination, and if he has once enjoyed that right no constitutional privilege is violated, by the admission of the testimony of such a witness, who is dead or absent from a state, at a subsequent trial. Underhill, Crim. Ev. § 255; 2 Wigmore, Ev. § 1397; State v. Nelson, 68 Kan. 566 (75 Pac. 505); People v. Dowdigan, 67 Mich. 95 (38 N. W. 920); State v. Byers, 16 Mont. 565 (41 Pac. 708); Territory v. Evans, 2 Idaho (Hasb.) 651 (23 Pac. 232: 7 L. R. A. 646); Marler v. State, 67 Ala. 55 (42 Am. Dec. 95); State v. McO’Blenis, 24 Mo. 402 (69 Am. Dec. 435); State v. King, 24 Utah, 482 (68 Pac. 418: 91 Am. St. Rep. 808: note, 61 Am. St. Rep. 886). The question was thoroughly examined by the Supreme Court of the United States in Mattox v. United States, 156 U. S. 237 (15 Sup. Ct. 337: 39 L. Ed. 409), and Mr. Justice Brown, after referring-to the rule in England, and saying “we know • of none of the states (in this country) in which such testimony is now held to be inadmissible,” proceeds: “The question was carefully considered in its constitutional aspect by the Supreme Judicial Court of Massachusetts in Commonwealth v. Richards, 18 Pick. 434 (29 Am. Dec. 608), in which it was said that: ‘That provision was made to exclude any evidence by deposition, which would be given orally in the presence of the accused, but was not intended to affect the question as to what was or was not competent evidence to be given' face to face according to the settled rules of common law.’ * * The primary object of the constitutional provision in question was to prevent depositions' or ex parte affidavits, [564]*564such as were sometimes admitted in civil cases, being-used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting, the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness'; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But the general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.”
7. The testimony of a witness, deceased or out of the State, or unable' to testify, given on a former action, civil or criminal, between the same parties,, relating to the same matter, is, by statute, made competent on a subsequent trial (Sections 718, 1399), unless prohibited by Section 1402, which declares that in a criminal action the testimony of a witness must be given orally in the presence of the court and jury, except in the case of a witness whose testimony is taken by deposition, by order of the court in pursuance of the consent of the parties, [565]*565as provided in Sections 1379 to 1385, inclusive, relating to continuances; but we think this section should not be construed to prevent the testimony of a witness, in a criminal action, given orally in the presence of the court and jury, who has since died or is out of the jurisdiction of the court, from being read on a subsequent trial of the same defendant on the same criminal charge. It relates to the manner in which the testimony is to be given or taken in the first instance, and not to the use which may be made of it after it is once given. The statute was intended to make the general rule, concerning the taking of depositions, inapplicable to criminal trials; but we cannot think it was designed to abrogate a doctrine so firmly established and generally -applied as that of permitting the testimony of a witness given in the manner required by statute to be used by either the State or defense on a subsequent trial, when he has since died or is absent from the State. A strict construction of the language of the section would, perhaps, exclude such testimony; but it would also exclude the dying declarations of the deceased, which are everywhere admitted, on the ground of necessity. It is for the same reason that the testimony of a deceased or absent witness is admissible, and the technical language of the statute must give way to public policy and necessity. It is just as important for a defendant that the testimony of a witness in his behalf, given on a former trial, should be competent at a second trial, where the witness is dead or is without the reach of process, as it is for the State, and the statute should, we think, be so interpreted as to protect and preserve the rights of both.
8. There was no error in refusing the instruction requested, to the effect that the jury had a right, and it was their duty, to pass upon the law as well as the facts. The verdict of a jury in a criminal case necessarily includes both law and fact, and it is therefore within its power to determine the law as well as the facts; but [566]*566it has no legal right to do so. The jury are required to find the law and the facts “under the direction of the court, as to the law” (Section 16, Article I, Constitution of Oregon; Section 410, B. & C. Comp.; State v. Reinhart, 26 Or. 466: 38 Pac. 822; State v. Reed, 52 Or. 377: 97 Pac. 627; Sparf & Hansen v. United States, 156 U. S. 51: 15 Sup. Ct. 273: 39 L. Ed. 343), and should receive and accept the law as given by the court, and not assume to decide it for themselves.
9. The other assignments of error do not require particular notice. The testimony of Mrs. Smith was clearly incompetent, and the testimony in relation to the age of defendant immaterial.
10. Any error that may have been committed in permitting the witness to testify to the- age of defendant, as shown by the school register, could not have injured him. According to his own testimony, he had reached an age of discretion- at the time the alleged crime was committed, and whether he was 17 or 19 years of age could have had no material bearing on his guilt or innocence.
Judgment affirmed. Affirmed.