The plaintiffs in error were proceeded against by information, and were convicted of larceny in the criminal district court of the parish of Orleans, Louisiana, on April 4, 1902, and sentenced to three years' imprisonment, which conviction and sentence were thereafter affirmed by the supreme court of Louisiana. 109 La. 622, 33 So. 618. They have brought the case here by writ of error.
On the trial the district attorney offered to real the testimony of one Thebaud, after having proved that he was permanently absent from the state and was a nonresident thereof, and that his attendance could not be procured. it appeared that the plaintiffs in error had been arrested and charged with the crime for which they were then on trial, and had been brought before the judge of the city criminal court, sitting as a committing magistrate, and upon the hearing before him, in the presence of the plaintiffs in error and their counsel, the witness Thebaud had been produced and examined orally, and cross-examined by the counsel for plaintiffs in error. The offer of the district attorney, after he had made this proof, to read the testimony thus taken upon the preliminary examination, was objected to by counsel for plaintiffs in error on various grounds, the material one now urged being that it was not shown that the witness whose deposition was proposed to be read was dead, insane, or sick, nor that he was absent by the procurement of the plaintiffs in error or their counsel, and it was insisted that the reading of that testimony would be in violation of the act of 1805, being now § 976 of the Revised Statutes of Louisiana, and of article 9 of the Bill of Rights and Constitution of that state, and also would violate the 6th and 14th Amendments of the Constitution of the United States.
The act of 1805 reads as follows:
'All crimes, offenses, and misdemeanors shall be taken, intended, and construed according to, and in conformity with, the common law of England; and the forms of indictment (devested, however, of unnecessary prolixity), the method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of crimes, offenses, and misdemeanors, changing what ought to be changed, shall be according to the common law, unless otherwise provided.' Acts 1805, p. 440, § 33.
Article 9 of the Constitution of 1898 of the state of Louisiana provides as follows:
'In all criminal prosecutions the accused shall have the right to a speedy public trial by an impartial jury: Provided, that cases in which the penalty is not necessarily imprisonment at hard labor or death shall be tried by the court without a jury, or by a jury less than twelve in number, as provided elsewhere in the Constitution: Provided further, that all trials shall take place in the parish in which the offense was committed, unless the venue be changed. The accused in every instance shall have the right to be confronted with the witnesses against him; he shall have the right to defend himself, to have the assistance of counsel, to have compulsory process for obtaining witnesses in his favor.'
The evidence contained in the deposition was material. The objections to the reading thereof were overruled, and the counsel for plaintiffs in error duly excepted. The deposition was then read in evidence.
Messrs. Lionel Adams, Henry L. Lazarus, and Richard B. Otero for plaintiffs in error.
Messrs. Walter Guion and F. C. Zacharie for defendant in error.
Mr. Justice Peckham, after making the above statement of facts, delivered the opinion of the court: