George Shiras, Jr.

“ By this ruling the court below rejected evidence of a positive character, testified to by witnesses to be produced and examined before the jury, upon a mere conjecture that a deceased witness might, if alive. reiterate his former testimony. It would seem to be a wiser policy to give the accused the benefit of evidence, competent in its character, than to reject it for the sake of a supposition so doubtful. ”

“ To press this rule so far as to exclude all proof of contradictory statements made by the witness since the former trial, in a case where the witness is dead, and the party offering the proof cannot, and never could, cross-examine him as to these statements, is to sacrifice substance of proof to orderliness of procedure, and the rights of the living party to consideration for the deceased witness. ”

“ The witness who has testified upon the stand hears, it is true, the evidence which tends to impeach him, or he may be called back for that purpose if he be absent. So, when the evidence goes to affect the credibility of a deposition, if it be material, the court would give time for the principal witness to appear, or for other depositions to be taken relative to the facts which are proved to impeach him. ”

“ In is argued that to permit evidence of statements made by a witness contradictory of his testimony would be 'a strong temptation to the fabrication of evidence, by which important and true evidence might be destroyed.' This argument overlooks the fact that, if witnesses are introduced to testify to the contradictory statements, those witnesses are liable to indictment for perjury. ”

“ Ct. 116, is referred to in the majority opinion as differing from the present one only in the fact that it was a civil, instead of a criminal, case. It is, indeed, true that it was a civil case,-a not unimportant difference ”