Commonwealth v. Keck

Per Curiam,

We do not think it was error to admit in evidence what William Nipsch testified to at a preliminary examination of the appellant. The witness was deceased at the time of the trial, and his testimony at the examination referred to was taken in the presence of the appellant and his counsel. Moreover, he was cross-examined at length by the appellant’s counsel. That evidence, taken under such circumstances, may be admitted upon the trial, is settled by numerous authorities. It is sufficient to *640 refer to Commonwealth v. Cleary from the oyer and terminer of Clinton county, decided at the present term [148 Pa. 26], where the subject is discussed at some length. It was urged, however, that the case in hand does not come within this ruling, for the reason that the preliminary examination was unnecessary, inasmuch as the appellant waived a hearing. This argument, however, is without force. While the defendant in a criminal prosecution may waive a hearing before the magistrate, so far as his interests are concerned, he cannot, by doing so, interfere with the right of the commonwealth to institute such preliminary examination before a committing magistrate. The ends of public justice may imperatively require such a preliminary investigation, and as many meetings or hearings may be held as public justice requires. In this case there was a manifest necessity for such hearing. The fact that the witness was not sworn before the examination commenced is immaterial. He was subsequently sworn, and his testimony repeated. No portion of it taken prior to the oath being administered, was admitted in evidence by the court below.

The judgiuent is affirmed, and it is ordered that the record be remitted to the court below for the purpose of execution.