Canal Bank v. Partee, 99 U. S. 325 [25 L. ed. 390]; Wallace v. Rippon, 2 Bay, 112; Rodemeyer v. Rodman, 5 Iowa, 426; Lewis v. Perkins, 36 N. J. L. 133; Pentz v. Simonson, 13 N. J. Eq. 232; Pierson v. Lum, 25 N. J. Eq. 390. Several of the above authorities are to the effect that where she has been given authority by statute to make personal contracts the proceedings must show the existence of the special circumstances as to or under which the power has been conferred or may be exercised; and others of them adjudicate that, when it is sought to charge her property with liability, the bill, or other proper pleading, must show the character of her estate in the property sought to be charged, in order that the court may know that it is chargeable. The decree assailed does not adjudicate a charge upon any particular estate or property of Mrs. Prentiss, but the feature of it in question is a personal recovery. If it be that a personal judgment or decree may be rendered against a married woman licensed as a free trader under our Statute of March 11, 1879 (McClel. Dig. 756, 757), it is sufficient on this point to say that Mrs. Prentiss is not sued as such. A married woman is personally liable for her wrongful civil acts or actual torts, including frauds not growing out of, or founded upon, or directly connected with, or a part of, or the means of effecting, a contract which she has undertaken to make; and she may be sued jointly with her husband in respect to such acts, or separately if she survives him. His liability for her torts is a result of the mere fact that by the common-law rules a suit cannot be maintained against the wife alone during coverture. If, before or pending the action, she dies, the right of action against him falls. Whenever her coverture avoids the contract, it is likewise a bar to a personal recovery for the fraud; and this cannot be overcome by suing ex delicto. 2 Bishop, Married Women, § 254-256, 261, 263; 1 Bishop, Married Women, $$ 842, 905-908; Owens v. Snodgrass, 6 Dana, 229; Smith v. Taylor, 11 Ga. 20; Kowing v. Manly, 49 N. Y. 192; Liverpool Adelphi Loan Asso. v. Fairhurst, 9 Exch. 422; Wright v. Leonard, 11 C. B. N. S. 258; Capel v. Powell, 17 C. B. N. S. 743. As to when a tort will be deemed the wife's, and when the husband's, vide 1 Bishop, Married Women, § 905, and 2 Bishop, Married Women, §§ 257–260. The fraud in the case before us, in so far as it is imputable to the wife, is not one sounding in tort, but is a part of, and directly connected with, the contract for the sale of the land, and hence not one as to which there is a personal property; and the burden of proof is upon the cred-¦¦ pra; Southworth v. Kimball, 1 New Eng. Rep. 350, itor to show what items fall within that class. Porter v. Staten, 64 Miss. 421. A husband undertaking to be bound for the commissions of a broker for effecting the sale of real estate of his wife is personally bound, whether he disclosed his agency for his wife or not. Jarvis v. Schaefer, 7 Cent. Rep. 675, 105 N. Y. 289. Where the husband simply acted as agent for the wife, and did not profess to bind himself, then the note and check were not in any sense the joint instruments of the husband and wife; and unless it is proved that they were executed by them jointly, action cannot be sustained against the wife. Wilderman v. Rogers, 66 Md. 127, 5 Cent. Rep. 574; Lowekamp v. Koechling, 64 Md. 95. Where a wife executed a deed absolute on its face, but in reality an equitable mortgage, to enable the grantee named therein to raise money to pay off a liability of the husband, the grantee was bound to ascertain the conditions upon which it had been executed and intrusted to the husband for delivery, the husband not being the general agent of the wife. Gilbert v. Deshon, 9 Cent. Rep. 848, 107 N. Y. 324. Liability of wife for her torts; common-law rule. The common-law rule making a husband liable for torts of his wife not having been abrogated by the New York Code of Civil Procedure, he is liable for damages sustained by another person in consequence of forgeries committed by her. Mangam v. Peck, 111 N. Y. 401. At common law when a tort is committed by a married woman, she is personally liable jointly with her husband, unless her husband is both present and directs the doing of it at the time, in which case he is alone liable. Franklin's App. 4 Cent. Rep. 322, 115 Pa. 534. His presence furnishes evidence and raises sumption of direction, but is not conclusive. sin v. Delany, 38 N. Y. 178. 58 Vt. 337. If the husband dies she may be sued alone, as if she had been feme sole when the tort was committed. Franklin's App. supra. While the presence of the husband furnishes evidence and raises the presumption of his direction of a tort committed by his wife, it may be rebutted by competent evidence; and in the absence of evidence that he was present, there is no presumption. lbid. If a wife makes unlawful sales of intoxicating liquors in the absence of her husband, there is no presumption that she acts under his coercion; but if the husband is near enough to influence the wife, although not in the same room, he is not absent. Com. v. Flaherty, 1 New Eng. Rep. 530, 140 Mass. 454. Where a married woman wrongfully converts, in the absence of her husband, property intrusted to her as bailee, she is, at common law, personally liable for her tort, jointly with her husband. Wheeler & W. Mfg. Co. v. Heil, 7 Cent. Rep. 179, 115 Pa. 487. Exemplary damages are recoverable against husband and wife in an action against them for a malicious assault committed by the wife, though the husband is without blame, and endeavored to prevent his wife from injuring the plaintiff. Lombard v. Batchelder, 2 New Eng. Rep. 768, 88 Vt. 558. The husband alone is liable for the wrongful detention of property by his wife, which was delivered in specie to her in his presence, with his approval, and detained for their use. Dohorty v. Madgett, 1 New Eng. Rep. 346, 58 Vt. 323; Southworth v. Kimball, supra. Connecticut. A qui tam action, under Conn. Gen. Stat., p. 253, $1, for placing obstruction in a highway, is mainpre-tainable against a wife without joinder of her husCas-band, provided the tort was committed by her without actual coercion by him. Blakeslee v. Tyler, 5 New Eng. Rep. 598, 55 Conn. 397. They are jointly liable in an action for damages for the tort; but the death of the wife terminates the liability of the husband. Franklin's App. su Where bars obstructing a highway inclosed the lands of the wife, and after they had been taken money liability, or can be such a personal decree or judgment, as to her. of all such property owned or to be owned by her, with all the rents, issues and profits, and all the receipts and income therefrom by sale, mortgage, lease or otherwise, as fully and absolute, and as free from his debts, as if she remained single and unmarried; he surrendering and relinquishing all his marital rights, and also the management and control of her property as her husband, under the laws of this State, and it being stipulated that she does not part with the right to dispose of the interest surrendered to her by Prentiss. The bond for title executed by Prentiss and wife not being a basis for the money recovery against Mrs. Prentiss personally (Norton v. Turvill, 2 P. Wms. 144; Dollner v. Snow, supra; 1 Bishop, Married Women, § 842), the order of the chancellor was erroneous. Still it is proper, in view of possible future proceedings, to notice another feature of the proceedings before remanding the cause. The Paisley bill states, in effect, that the land involved in this controversy was included in a deed of trust made by These allegations would not have the effect to Dr. Butte, the former husband of Mrs. Pren- create any exception to the doctrine announced tiss, to Mrs. Simmons, and providing that the above as to the money decree, and the only land could not be conveyed by Mrs. Butte, but | further observation necessary to be made as to could be conveyed by the trustee upon the them now is: If it be that a cash payment was written request of Mrs. Prentiss. The bill of made to Mrs. Prentiss, or to her husband for review represents that on July 11, 1885, prior her, with her consent or as her authorized to the marriage between Mrs. Butte and Pren- agent, which relation he could sustain to her tiss, they entered into a marriage contract, (Tresch v. Wirtz, 34 N. J. Eq. 124; Baum v. whereby the latter agreed to relinquish and Mullen, 47 N. Y. 577; Pentz v. Simonson, surrender to the former his right to control and supra), and under the circumstances of the manage her separate estate and property de- case, as they may be shown to exist, the land scribed in the above deed of trust, which is involved, or her other property, if she have dated August 23, 1883, and any other sepa- any, can be charged with such payment, the rate property then owned, or that she might trustee is, as suggested by counsel for appelthereafter own, and that he would suffer and lants, a necessary party to any proceeding permit, and it authorizes her, without let, hind- seeking to charge any property included in that rance, molestation or interference on his part, trust. Lewis v. Yale, 4 Fla. 418; Dollner v. to hold, occupy, "exert" and enjoy the abso- Snow, supra. lute, unqualified control and management Whether or not her property is so charge down she and her husband started together to put | Fitzgerald v. Quann, 12 Cent. Rep. 745, 109 N. Y. 441. them up, and he said to her, as she was running ahead of him, "Put them up,"-it is not actual coercion by him. lbid. Indiana. By Statute (Rev. Stat. 1881, § 5120), married women are made liable to action for damages for their torts. Mayhew v. Burns, 1 West. Rep. 577, 103 Ind. 328. They take right to their separate estates with all its incidents, and must use their property with due regard to the rights of others. Ibid. The statute which provides that a married woman is jointly liable with her husband for torts relates to mere personal torts of the wife, and not to trespasses on real estate resulting in injury to others. Ibid. Michigan. In an action of trespass for forcible dispossession of one claiming as tenant, it was held that personal assaults made by defendant's wife in his presence were admissible, while those made while he was not present should have been excluded. Baumier v. Antiau, 8 West. Rep. 115, 65 Mich. 31. The wife is not chargeable with the fraudulent intent of her husband, notwithstanding he may have been her agent in the management of her property and the conduct of her business. Plinsky v. Germania F. & M. Ins. Co. 32 Fed. Rep. 47. New Jersey. Since the enactment of the statutes empowering married women to transact business independently of their husbands, they will be held more amenable to the same rules as other persons in reference to what may amount to fraud. Troxall v. Silverthorne (N. J.) 10 Cent. Rep. 189. New York. Under the statutes of New York, the husband must be joined as defendant in an action for the tort of the wife (having no relation to her separate property), and is liable for recovery had therein. A wife who received property through the fraudulent acts of her husband acting as her agent is liable for the consequences of such acts to the persons injured. Rush v. Dilks, 43 Hun, 282. A married woman may have such community of interest with her husband in relation to real estate as will render her liable for his frauds relating to it; and when he, professing to act as her agent, makes false representations, although without her knowledge, and she receives the proceeds, she cannot retain the fruits of his fraud. Noel v. Kinney, 8 Cent. Rep. 58, 106 N. Y. 74. Pennsylvania. Since the passage of the Pennsylvania " Married Persons' Property Act," of June 3, 1887 (Pub. Laws, 333), a husband is no longer liable for torts committed by his wife alone. Kuklence v. Vocht (Pa.) 11 Cent. Rep. 855. That Act does not deprive a married woman of her common-law exemption from arrest on capias ad respondendum or capirs ad satisfaciendum in a civil action for a tort committed by her. Vocht v. Kuklerce, 11 Cent. Rep. 767, 119 Pa. 365; Kuklence V. Vocht, supra; Whalen v. Gabell, 12 Cent. Rep. 503, 120 Pa. 284. A married woman is personally liable for a tort committed by her, unless her husband was both personally present and directed the doing of it at the time. If directed by him, he alone is liable. Franklin's App. 4 Cent. Rep. 324, 115 Pa. 534. Where the evidence shows a wrongful conversion of trust funds by a married woman, her estate is liable in damages although the trust funds be not identified as a part of her estate. There was no evidence of coercion by the husband. Ibid. Virginia. Where a wife is sued as a sole trader, under the Virginia Married Woman's Act of April 4, 1877, in an action of unlawful detainer, the consent or nonconcurrence of her husband can have no effect whatever. Farley v. Tillar, 81 Va. 275. able is a question we do not feel called upon to discuss, in the absence of both proper pleadings and necessary parties. Though the decree assailed is one absolute upon a decree pro confesso, we think a bill of review for error apparent is a proper remedy. Stribling v. Hart, 20 Fla. 235; Maynard v. Pereault, 30 Mich. 160. The purpose of a bill of review for error apparent is to have the court rendering the decree give the same relief that the appellate court might under the same circumstances. Evans v. Clement, 14 Ill. 206. Where the bill does not justify the final decree which has been taken upon a decree pro confesso, relief may be had from the appellate court on an appeal (Hart v. Stribling, 21 Fla. 136), and the same may be secured through a bill of review from the court rendering the decree. The decree appealed from should be set aside. If Paisley shall desire to amend his bill, he should be permitted to do so, and, as a consequence, his decree should be vacated, and his cause proceed on the bill as it may be amended; but should he elect rather to stand upon his decree, modified to the extent of the personal money recovery against Mrs. Prentiss, his decree should be modified merely as to such relief against her. The cause will be remanded for proceedings not inconsistent with this opinion. 2. No exception is by statute allowed to an order overruling a challenge to a juror for general cause; hence such order is not error. 3. Depositions taken in the presence of the accused may be used on trial, when, on account of death or other good cause, the presence of the witness cannot be had. Our Statutes do not for bid such use, nor is it in violation of the Sixth Amendment to the Constitution of the United States. AP (Feburary 24, 1890.) PPEAL by defendant from a judgment of the District Court for Bear Lake County convicting him of the offense of resisting an officer. Affirmed. The case fully appears in the opinion. Messrs. Smith & Smith, for appellant: Under § 3942, Rev. Stat. Idaho, a person who is not an elector cannot serve at all as a juror. Sampson v. Schaffer, 3 Cal. 107; People v: Chin Mook Sow, 51 Cal. 599; State v. Salge, 1 Nev. 455; Thompson & M.Juries, p. 24, § 26; Thompson, Trials, §§ 52, 53; Reich v. State, 53 Ga. 73, 21 Am. Rep. 265; State v. Jackson, 27 Kan. 581. The memorandum or deposition taken before an examining magistrate is not competent evidence against the defendant upon trial. restrict the number eligible to jury duty to such a small class as to substantially impair or in effect preclude this right. Thompson & M. Juries, § 24. The decision upon the challenge for actual bias is not the subject of exception or review on appeal. People v. Taing, 53 Cal. 602, 603; People v. Riley, 65 Cal. 107, 108; People v. Cotta, 49 Cal. 169. The decision of the trial court upon any general cause of challenge is not subject to exception or review upon appeal. People v. Fong Ah Sing, 70 Cal. 8, 11; People v. Ward, 77 Cal. 113. Where a witness failed to appear at the trial of the cause, but had previously, either on a former trial or at the preliminary examination of the accused, given evidence in the cause and the defendant had had an opportunity to cross-examine him, his deposition, or proof of. the testimony given by him, can be admitted as evidence. To receive such evidence does not conflict with the provisions of article 6 of the Constitution of the United States or the Constitutions of the several States giving the accused the right to be confronted with the witnesses against him, or to meet them face to face. 1 Chitty, Cr. L. 585, 586; 1 Archb. Pr. and Pl. 478-480, authorities cited; Starkie, Ev. 409, 410, 414, 417; State v. McO' Blenis, 24 Mo. 402. See article in 11 Crim. Law Mag. 771-773; Summons v. State, 5 Ohio St. 325; Sneed v. State, 47 Ark. 180; People v. Riley, 75 Cal. 98; Brown v. Com. 73 Pa. 321; Barnett v. People, 54 Ill. 325; Greenwood v. State, 35 Tex. 587; Weeks, Depositions, 565; Hair v. State, 16 Neb. 601, 4 Am. Cr. Rep. 130; Gilbreath v. State, 26 Tex. App. 315; Dunlap v. State, 9 Tex. App. 179, 35 Am. Rep. 736; Simms v. State, 10 Tex. App. 131; Black v. State, 1 Tex. App. 368; Wharton, Messrs. Richard Z. Johnson, Atty-Gen., Cr. Ev. 230; People v. Gannon, 61 Cal. 476; and Hawley & Reeves, for respondent: People v. Devine, 46 Cal. 46; 1 Greenl. Ev. In all criminal prosecutions, the accused§ 163 and note 1; Hurley v. State, 29 Ark. 17; shall enjoy the right to a speedy and public trial by an impartial jury. Amend. to Federal Const. art. 6; State v. Thomas, 64 N. C. 74; Jackson v.Com. 19 Gratt. 656; People v. Lambert, 5 Mich. 349; People v. Chung Ah Chue, 57 Cal. 567. United States, Const. Amend. art. 6. It is incompetent for the Legislature to disqualify the great body of the community and *Head notes by BEATTY, Ch. J. Shackelford v. State, 33 Ark. 539; Sullivan v. Beatty, Ch. J., delivered the opinion of | including sections 3941, 3942, as they now are, the court: is sufficient answer to all suggestions that the Legislature did not intend the Statutes as they now read. One of the prime objects of a revision is the elimination of doubt. What is included therein must be construed together as the law, and all that formerly existed, and is not included, is clearly repealed. § 19, Rev. Stat. The appellant was charged with the offense of resisting an officer. From the judgment rendered upon his conviction thereof he has appealed to this court, and now contends that the trial court erred (1) in admitting as a trial juror a person "who was a member of an organization that taught.. its adherents . to commit the crime of bigamy or polygamy:" and (2) in admitting as evidence before the trial jury the depositions of witnesses taken before the committing magistrate. Must the juror have all the qualifications of an elector? Whether a juror must have the same qualifications now required of an elector is the question involved in the first assignment of error. Sections 3941, 3942, Rev. Stat., together provide that jurors must be citizens of the United States, and electors of the county. Sections 500, 501, require that electors, besides having certain qualifications, must not be members of any organization which teaches its adherents to commit the crime of bigamy or polygamy." While these Statutes seem clearly to exclude as jurors all persons who belong to such organization," it is contended such a construction will do violence to the legislative will and intention, for which the reasons following are assigned: (1) that when the law first provided a juror should be an elector (Laws 8th Sess. p. 704) the only qualifications of an elector were citizenship and residence, and, in changing the qualifications of electors (13 Sess. p. 106) by requiring they must not belong to said organization, it was not designed to apply this restriction to jurors also; (2) that, if jurors must have all the qualifications of electors, they must also be registered, which, under the operation of the Registration Law, would often result in the temporary exclusion of good citizens as jurors, who are otherwise qualified electors; and (3) that in some counties in this Territory so many of the people are members of such organization that the courts would thus practically be without jurors. 1. The authorities holding that statutes will not be repealed by implication are not applicable to general laws which are in conflict with, and repugnant to, each other. When a general law is in apparent conflict with some prior private or special Act, passed for the benefit of some particular interest or municipality, the presumption is indulged that it was not designed by the general to repeal the special law; but no such presumption is entertained in the case of conflicting General Statutes. They cannot stand together. There can be no question that the two Statutes prescribe different qualifications for electors, and the older must yield to the later. It may be added that the Act of the 13th Session was an Election Law, and by its last section it not only expressly repealed the former law on the same subject, but also "all Acts or parts of Acts in conflict with this Act," which must be held to exclude any presumption that the Legislature did not intend the repeal of all conflicting statutes. However, the fact that on the 11th day of January, 1887, the Legislature by one Act swept out of existence all former legislation and laws of Idaho, and enacted a complete revision thereof, now embodied in our Revised Statutes, 2. It is not conceded an elector must be registered to act as a juror. Section 500 says he must be registered to vote. It does not follow that, if he has all the qualifications of an elector, he must be registered to sit in the jury box. Registration does not go to his qualification, but is only a precaution to prevent fraud in the election. But, even if the law should be construed that a juror must be registered, it would generally result in only a few being temporarily debarred the privilege of jurors. 3. It is, unfortunately, true that in some counties such a large proportion of the people belong to said "organization" that juries cannot be selected from the mass of the people, and courts may at times find it even inconvenient to procure them. So, also, communities might be found where the (5) qualification of citizenship, or any other general qualification, might result in the same inconvenience. On the contrary, we think the Legislature meant to exclude from jury service those belonging to the so-called "Mormon Church." By section 501 they are distinctly enjoined from "holding any position or office of honor, trust or profit." Laws are construed in the light of the facts and circumstances under which enacted. We are justified in supposing the lawmaker took notice of the generally admitted fact that the members of that church are more obedient to its teachings, which are antagonistic to the laws of the land, than to the latter. View this question in any light, we are forced to the conclusion that under our laws a juror must have all the qualifications now required of an elector, and that the court should have excluded the juror objected to by appellant. That this conclusion will lead to inconvenience in some localities may be true, but we cannot change what seems to be a positive and clear statute. If there is any need of a change, we respectfully refer it to the legislative department. Exception to Order Overruling Challenge for General Cause. Respondent insists, however, that, even if the juror was not qualified, the Statute does not allow appellant an exception to the order of the court overruling his challenge to such juror. Inconsistent as it may appear, it seems such is the Statute. Section 7831 divides causes of challenge to jurors into (1) general, including "a want of any of the qualifications prescribed by law to render a person a competent juror" (7832), and (2) particular, which includes implied and actual bias (7833). The cause of challenge in this case was a general cause; and the Statute in no place provides for or allows an exception to an order overuling such a cause of challenge. Our section 7940 (Penal Code Cal. § 1170) allows exceptions only in matters of challenge based on implied or actual bias. Here, then, we have a statute which declares a juror disquali. fied, but provides no remedy to the aggrieved | it was designed they should not be used. But party when the court admits him. On the it does not appear we have abolished the comprinciple that there is a remedy for all wrongs, mon-law rule on this subject, nor have we we would be inclined to hold that such action of the court is reviewable. But our Statute on this subject is an exact copy of that of California, and in adopting their laws we adopt also their construction of them. Partially in point is the case of People v. Riley, 65 Cal. 107, and cases cited, which hold that a defendant is not allowed an exception to the ruling of the court disallowing a "challenge for actual or implied bias," because the Statute makes no provision for such exception, but only allows it to the decision of the court "in admitting or rejecting testimony, or in charging the triers in the trial of a challenge to a juror for actual bias. Rev. Stat. § 7940 (Penal Code Cal. $1170). directly enjoined the use of such testimony; and it does appear that all the depositions above referred to are taken in the same way, in the presence of the accused, thus justifying the presumption of a like use of all so taken: and section 7864 provides that "the rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this Code." There is no doubt this is a question relating to "the rules of evidence," nor is there that depositions may be used in civil actions. We think our Statute permits their use before the trial jury when duly taken iu the defendant's presence, and the witnesses cannot, for good cause, be brought before the court. The Use of Depositions not Forbidden by United States Constitution. The direct question is decided in People v. Fong Ah Sing, 70 Cal. 8-11, being a cause in which defendant was found guilty of murder. It remains to consider whether article 6 of A juror who was not a resident of the county, the Amendments to the Constitution of the as required by law, was admitted against de- United States, providing that the accused must fendant's challenge. On appeal it was held be "confronted with the witnesses against this was a general cause of challenge, to rul- him," absolutely requires the presence of the ings in which no exception is allowed. The witnesses at the trial. This question has been case seems approved in People v. Ward, 77 Cal. discussed time after time in the courts of the 113. We therefore hold the appellant's excep- States having the same or similar constitutional tion to the order of the court overruling his provisions; and, while the decisions have not challenge to the juror is not well taken. been uniform in their conclusions, the weight Depositions may be Used on the Trial. of authority is that depositions taken in the Was it error to admit in evidence the depo-presence of the defendant, with the right of sitions referred to in the cause? Appellant cross-examination, is being "confronted by claims it was, because not permitted by the the witnesses," and meets the demands of the Statute, and contrary to the Constitution of Constitution. Such depositions have been adthe United States. Under the common law, mitted when it appeared the witness was the depositions of witnesses, taken in the pres-dead. If constitutional in such case, the same ence of the defendant, could be used at the trial justification can be urged for their use in case of the cause in case of the death or absence of of absence of the witness. Of the many authorthe witness, but it seems they could not be ities sustaining this view are State v. McO'used before the grand jury. Does our Statute Blenis, 24 Mo. 412, a murder case, in which abrogate the common-law rule, or prohibit the depositions were allowed notwithstanding a use of depositions? Sections 7576 and 7634 constitutional provision that "in all criminal provide for the taking of the depositions, and prosecutions the accused has the right to meet their use before the grand jury. It seems prob- the witnesses against him face to face." able these provisions were designed to procure the testimony of witnesses while it is fresh in their minds, and also in the interest of economy and convenience. The question of testimony before the trial jury was not under consideration. The two questions are not sufficiently relevant that the consideration of one necessarily involves the other. It is evident this legislation referred only to the use of such evidence before the grand jury; for it provides for its use even when the presence of the wit-ous authorities. ness can be procured, which is never permitted in the use of such testimony before the trial jury. The subjects not being relevant, failure to provide for its use before the trial jury does not operate to exclude it. Our Statutes expressly establish and recognize the principle of the use of depositions on the trial in certain cases of the absence or death of the witness. $$ 7588, 8161, Then why not in all cases, if not expressly forbidden? Section 8161 provides expressly for the taking of depositions of defendant's witnesses for use on the trial, and the fact that no provision is made therein for taking the deposition of the people's witnesses strongly suggests that Summons v. State, 5 Ohio St. 340, was a murder case. The constitutional provision was: "In any trial, in any court, the party accused shall be allowed . . . to meet the witnesses face to face." The testimony of a witness given in a former trial was permitted to be testified to by those who heard it, the witness having in the mean time died. To same effect are Gilbreath v. State, 26 Tex. App. 318; Sneed v. State, 47 Ark. 180, and numer Had the depositions been improperly admitted, the appellant has failed to furnish the court with such a record as will authorize it to correct the error. Section 8236 is: "Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right." The appellant has entirely failed to show us he was prejudiced in the least by the alleged error of permitting the use of the depositions. That the court may judge whether they were detrimental to appellant, he should have brought them here, which he has failed to do. |