Commonwealth v. McKenna , 158 Mass. 207 ( 1893 )

Field, C. J.

We are of opinion that the evidence recited in the exceptions was sufficient to warrant the verdict of the jury.

The remaining exception is to the refusal of the court to permit a.witness to testify to what Mrs. Kearns testified to at the trial of this case in the district court, she being ill and unable to be present at the trial in the Superior Court. The witness heard her testimony, and we assume that it was material. On this question there is a conflict of authority in other jurisdictions, but here, so far as we know, the practice has been to confine such testimony to cases where the witness has died; and the weight of authority elsewhere in criminal proceedings is, we think, that the rule should not be extended to cases where the witness is ill at the time of the trial. State v. Staples, 47 N. H. 113. People v. Newman, 5 Hill, (N. Y.) 295. Le Baron v. Crombie, 14 Mass. 234. Commonwealth v. Richards, 18 Pick. 434. Yale v. Comstock, 112 Mass. 267. Costigan v. Lunt, 127 Mass. 354. Chase v. Springvale Mills Co. 75 Maine, 156. United States v. Angell, 11 Fed. Rep. 34. Collins v. Commonwealth, 12 Bush, 271. See Reynolds v. United States, 98 U. S. 145; 1 Greenl. Ev. §§ 163— 165; Best on Ev. (Chamberlayne’s ed.) § 496, n.; Whart. Crim. Ev. (9th ed.) § 227 et seq.; 1 Bish. Crim. Proc. (3d ed.) § 1195; 1 Taylor Ev. § 477 et seq. The decision in Le Baron v. Crombie, ubi supra, has never been overruled, and the statutes since passed relating to evidence and witnesses seem not to touch the question. Exceptions overruled.