36 S.W. 1099 | Tex. Crim. App. | 1896
Lead Opinion
This conviction was had for murder in the second degree. The State, over appellant's objection, introduced before the jury the written evidence of one Monroe, taken on the examining trial of appellant under a charge for the same offense of which he was in this case convicted. As a predicate for the introduction of this testimony, the death of the witness was prove. The objection urged was that the accused "shall be confronted with the witnesses against him," as guarantied by Sec. 10 of the Bill of Rights of the State Constitution. The testimony was admitted, presumably under the provisions of Art. 774, Code Crim. Proc. (1879), which reads as follows, to-wit: "The deposition of a witness taken before an examining court, and reduced to writing, and certified according to law, in cases where the defendant was present when such testimony was taken, and had the privilege afforded him of cross-examining the witness, may be read in evidence as is provided in the two preceding articles for the reading in evidence of depositions." In regard to examining trials, Art. 267, Code Crim. Proc., provides that "the testimony of each witness examined shall be reduced to writing by the magistrate or some one under his direction, and shall be read over to the witness, or he may read it over himself, and such corrections shall be made in the same as the witness shall direct, and he shall then sign the same by affixing his name or mark. All the testimony *337
thus taken shall be certified to by the magistrate taking the same." All judges of the Supreme Court, Court of Criminal Appeals, District Courts, County Courts, or Justices of the Peace, are magistrates, and when holding such examining trials are called "examining courts." Code Crim. Proc., Arts. 42-63. With reference to depositions, the Code of Criminal Procedure (Article 757), enacts that, "when an examination takes place in a criminal action before a magistrate, the defendant may have the depositions of any witness taken by any officer or officers hereafter named in this chapter; but the State, or person prosecuting, shall have the right to cross-examine the witnesses, and the defendant shall not use the depositions for any purpose unless he first consent that the entire evidence or statement of the witness may be used against him by the State on the trial of this case." "Depositions of the witnesses may also, at the request of the defendant, be taken in the following cases: (1) When the witness resides out of the State. (2) When the witness is aged or infirm." Code Crim. Proc., Art. 758. "Depositions of witnesses within the State may be taken by a Supreme or District Judge, or before any two or more of the following officers: The County Judge of a county, notary public, Clerk of the District Court and Clerk of the County Court." Id., Art. 759. "The deposition of a witness taken before an examining court may be taken without interrogatories; but whenever a deposition is so taken, it shall be done by the proper officer or officers, and there shall be allowed both to the State and to the defendant full liberty of cross-examination." Id., Art. 768. Such depositions may be taken without interrogatories, and the manner and form of taking and returning same shall conform to and be governed by the rules prescribed for taking depositions in civil causes. Id., Arts. 762, 763, 768, 769. "And when taken in such examining court, the deposition shall be sealed up and delivered by the officer or officers, or one of them, to the clerk of the county having jurisdiction to try the offense." Id., Art. 771. In order, then, to constitute this character of evidence a "deposition," the provisions of the statutes authorizing same must be complied with, for it is only by virtue thereof that such "depositions" can be taken. It will be seen that there are essential differences between taking "evidence" or "testimony" and returning same in an examining trial, and taking a "deposition" before an examining court. These differences are creatures of statute. "Evidence" on an examining trial is taken when the truth of the accusation is being inquired into, and to determine the question of bail, and by the magistrate alone, unaided by any of the officers enumerated in Art. 759, Code Crim. Proc. A "deposition" is taken at the instance of the accused, and in pursuance of different statutes from those prescribed for examining trials, and under entirely different rules of procedure. This will plainly and easily be seen by a reading of the cited statutes. "Testimony" taken on the examining trial is certified by the magistrate only, not as required in civil cases where depositions are taken, but in a different manner, and is filed with the District Clerk for purposes stated *338
in the statute. "Depositions" are taken for the purpose of being used in future trials, when the proper predicate is laid. Code Crim. Proc., Arts. 772, 773. Examining trial evidence could always be taken by the State, under the statute, but "depositions" never, until 1879, by virtue of Article 774. In fact, the evidence taken in examining trials was never authorized by statute to be used in this State by either the accused or the prosecution until 1866, and then it was confined expressly to the accused, and by him, then, only when it was shown that the witness giving the said testimony was dead. This right or privilege has never been accorded the prosecution, unless by virtue of Article 774, supra. In Kerry's case, it was held that the word "deposition," in Article 774, was by mistake used for the word "evidence" or "testimony;" and by this construction the right to use "examining trial testimony" was accorded the State, upon predicate laid, as provided in Art. 772, Code Crim. Proc. And this construction, it was said by the court, "is put beyond all question by reference to the original act of 1866, from which Article 774 was taken." Kerry v. State, 17 Tex.Crim. App., 178. Other cases in this State follow and support this case. The act of 1866 reads as follows: "In all criminal prosecutions, when the testimony of a witness has been reduced to writing, signed and sworn to before an examining magistrate, or before any court, and the witness has died, since giving his testimony, the testimony so taken and reduced to writing may be read in evidence by such defendant, as proof of the facts therein stated, and upon any subsequent trial for the same offense; provided, however, that in all other respects, the testimony of such deceased witness shall be subject to the established rules in criminal cases. In every case the death of the witness must be established to the satisfaction of the court." This statute, it will be seen, has no reference whatever to a "deposition," provided for in Articles 757 to 771, and absolutely excludes the idea that such "testimony" is a "deposition." When the statute was repealed, as was done by the Revised Statutes in 1879, this privilege was withdrawn from even the defendant. Article 774 was added to the Code of Criminal Procedure, upon the recommendation of the revisers in the following language, to-wit: "Title 8, Chap. 8. Of Depositions, etc. No material changes are made, except in the addition of Article 774." Willson's Crim. Proc., p. 13, at bottom of page (Report of Commissioners). This title and chapter have reference exclusively to "depositions." Can it be gathered from this recommendation the revisers intended to substitute Article 774 for the Act of 1866 (2 Pasch. Dig. Art. 6605), or that the legislature did in fact substitute it for said act, by carrying the recommendation of the revisers into effect? I think not. The language of the revisers is free from ambiguity, and clearly conveys the idea that Article 774 was an addition to the chapter, relating only and exclusively to depositions. The word "deposition" has a well-ascertained meaning as used in the Code of Criminal Procedure, and excludes the idea that "testimony" taken in an examining trial, under Article 267 supra, was intended to be, or is, included *339
within that meaning. In using the term "deposition" in Article 774, it was intended to confer upon the State the privilege of taking the character of testimony mentioned, in the same manner and under the same forms and procedure as conferred upon the defendant in similar cases. It employs language only appropriate to this end, and for this purpose. In requiring the deposition, under said Article 774, "to be certified according to law," it evidently meant that the deposition should be taken and certified as when taken by the accused; that is, by the officer or officers mentioned in Article 759, and in accordance with other requirements of the other statutes in regard to depositions. The reasons for this conclusion would be equally as cogent, if not stronger, should it be conceded that the Act of 1866 was repealed by substituting therefor Article 774, because the latter act employs language and terms totally at variance with the former, and excludes the idea that the examining trial evidence provided for in the former act was meant or could have been intended by the terms of the latter act. The word "deposition" has not been used to mean. "examining trial evidence" in any legislative act in the Code of Criminal Procedure, in its history, so far as I have been enabled to ascertain. For the first time in this State, Article 774 permitted the State to take depositions in a criminal case for the purpose of using same on some subsequent trial thereof, and it was by virtue of this statute alone that this practice was sought to be introduced into the criminal jurisprudence of Texas by legislation. Depositions in criminal causes were unknown to and unauthorized at common law. Therefore, we could not look to that source for such a rule. Johnson v. State,
I have discussed this statute upon the hypothesis that it is not a violation of the 10th Section of the Bill of Rights, and the legislature is authorized to engraft exceptions upon the provisions; and, having done so, the State must pursue the procedure set out in the statute; and, having failed to do so, the evidence was inadmissible. But I do not believe the legislature is empowered to enact any law authorizing the State to reproduce the evidence of a witness under any state of case, unless the accused has waived his right in some way, because it would be a violation of the Constitution. Section 10 is as follows; "In all criminal prosecutions the accused shall have a speedy trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof. H shall not be compelled to give evidence against himself. He shall have the right of being heard by himself or counsel, or both; shall be confronted with the witnesses against him; and shall have compulsory process for obtaining witnesses in his favor. And no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury. * * *" To render this still more emphatic, the Constitution further ordained, by Section 29, that, in order "to guard against transgressions of the high powers herein delegated, we declare that everything in this Bill of Rights is and shall forever remain inviolate, and all laws contrary thereto, or the following provisions, shall be void." When antagonistic to "these rights," no law or rule of evidence can rightfully stand, and where there is a doubt of the constitutionality of the law, impigning these rights, or apparently impigning them, that doubt should be solved by holding the law unconstitutional. Lynn v. State,
One word with regard to the expression, "Except in certain cases, provided for in this Code, where depositions have been taken." What does this mean? By referring to Articles 757-771, inclusive, we find that it means only to authorize the accused to take depositions in an "examining court," or where the witness is absent from the State, or is aged and infirm, under circumstances there specified. When so taken, the accused is required to consent that the State may use the depositions, and the prosecution has the right of cross-examining the witnesses whose depositions are taken. Then, it seems to be clear that the "evidence" taken by a Justice of the Peace on an examining trial is not a deposition. Code Crim. Proc., Arts. 267, 757-771. Such "evidence" is, therefore, not only prohibited by the Constitution, but excluded by the statute. Depositions were unknown to the rules of common law. Therefore we cannot look to that source for any light. Johnson v. State,
As I understand the history of legislation in this State, examining trial evidence was never admissible for the State by statutory enactment. In 1866 an act was passed authorizing the use of such evidence by the accused, but then only by proof of the death of the witness who gave it. Pasch. Dig., Art. 6605. But this act was repealed in 1879, and now is but a historical reminiscence, even the defendant being debarred this right or privilege. Therefore, I cannot see how it can be held that "examining trial evidence" is admissible, even under the statute. But I have discussed this previously. The right to be confronted with the witnesses against him is a right guarantied by the Constitution to the accused — is not a rule of evidence. This right begins with and continues throughout the "prosecution," whenever the accused is placed on trial before a jury, as to his presence during every stage of that trial, and is co-extensive with his right to have compulsory process for his witnesses, to be tried upon indictment in felony cases, and to be heard by himself and counsel. These are continuing rights, and cannot be obliterated because once made operative in the course of a given prosecution. That hung juries, new trials, or reversals do not satisfy these requirements, if the accused is again placed on his trial under the same indictment, is conceded as to all other rights save the one at issue, and this by all the authorities. Then, why not so as to this provision? If it is otherwise in this instance, and this provision be an exception, it should have been specially so provided in the Constitution. But it was not. Then the scope, duration and authority of these provisions are the same, and cannot be otherwise, if we adhere to the plain terms and positive language employed in setting forth this right. If a necessity exists to set aside this right, or any of these rights, in any emergency, it is found outside and beyond the terms of the Constitution, and not in any language therein set forth. It must come from some higher source, to be supplied by the interpreting power. Whence cometh it? It is said that it originated in and comes from necessity; that it is inherited from the common law, and from the fact that the accused has once been confronted with the witnesses against him. Some courts adopt one of these theories; others, another; and some adopt all three, and superadd the *345
matter of public policy, as a sort of "roseleaf to the brimming goblet." "Necessity" has afforded a broader ground, perhaps, then the other reasons for the decisions admitting this class of evidence. It has its origin, of course, in the idea that the Constitution must be relaxed in some way in order to admit this character of evidence. Necessity that is higher than the Constitution can safely have no place in American jurisprudence. That principle is necessarily vicious in its tendency, and subversive of the Constitution. It should be, and is, limited by the constitutional inhibitions. This is the settled rule in this State, except, perhaps, in regard to confronting the accused with the witnesses for the prosecution. Lynn v. State, 33 Tex.Crim. Rep.; Ex parte Garza, 28 Tex.Crim. App., 381; Ex parte Sundstrom, 25 Tex.Crim. App., 133; Bohmy v. State, 21 Tex.Crim. App., 597; Flood v. State, 19 Tex.Crim. App., 584. The exception referred to is supported by Johnson v. State, 1 Tex.Crim. App., 333; Black v. State, Id., 368; Steagald v. State, 22 Tex.Crim. App., 464, and other cases. These decisions sustain this exception principally upon the broad ground of necessity, but admit that this "necessity" is an innovation upon the constitutional guaranty "that in all criminal cases the accused shall have the right to be confronted with the witnesses against him." Steagald v. State, 22 Tex.Crim. App., 468-490. In Sullivan's case, it was admitted on the ground of "judicial necessity." 6 Tex.Crim. App., 319-342. Why should the necessity exist as to this, and not as to the other provisions? The reasons are not obvious. But, if correct, these decisions establish the proposition that there is a necessity higher than and beyond the Constitution, and out of which this rule must come. Being correct, that necessity must govern and control the Constitution. If it in fact exists, the judiciary, legislature and executive owe it allegiance, and must conform to its behests. As its boundaries have not been and cannot be settled, because of a want of controlling authority, it follows that each department may exercise its high functions as may seem to it proper, guided alone by its own will, or its determination of the emergency which may call it into existence. The judiciary may take one view of it, the legislature another, and the executive still another, and each antagonistic to and subversive of the other. Thus each of these co-ordinate departments may find "necessities" outside the organic law, destructive of the authority of the other two and of that law itself. If this "necessity" exists, the Constitution cases, and the necessity usurps its place and functions, and becomes a "higher law," to be exercised at the pleasure of the department assuming the existence of the necessity. If the courts can assume it for one reason, they may do so for any number of reasons, and until all of the provisions of the Constitution are nullified, and its existence terminated; arid hence the extinction of the courts themselves, or the establishment of their complete and absolute autonomy, independent, of the Constitution. The power to create a necessity superior to the Constitution necessarily implies and carries the authority to supersede it. The Constitution, and a controlling *346
necessity antagonistic to its requirements, cannot exist. One must yield, and this, of course, must be the necessity, though some decisions hold the other way. These decisions, in my judgment, are erroneous, and should not be permitted to stand. But this character of evidence is said to have been admissible at common law, and therefore admissible with us. If it be conceded that it was permitted at common law, it does not follow that it is so here. While the English practice may have admitted depositions in criminal cases, this seems to have rested on statutes, and it cannot be easily shown from the cases that parol evidence of what was sworn on a previous trial was used upon a subsequent trial. People v. Sligh,
Again, the common law, or "the law as it existed at the time" our Constitution was brought into existence, never conceived of a constitution such as inaugurated in the States or for the Federal government. It would be much more plausible to construe away the freshly-acquired rights of the English "subjects," wrung from King John, and embodied in Magna Charta, by "the law as it existed at that time," than to interpret away, by common law, those rights reserved by our people in their respective Bills of Rights and Constitutions. As Magna Charta reached out for "new guaranties of the rights of the citizen," secured in that memorable struggle of the English people for their liberties, so our Constitution was "reaching out for new guaranties of the rights of the citizen," after the great struggle which gave the American people in the thirteen colonies their independence. Not satisfied with the Magna Charta of English liberty and rights, the American people ordained and instituted a Magna Charta of their own rights and liberties, in the form of written Constitutions, and in them made a forward movement in guaranties of reserved rights, some of which were unknown to the "law as it existed at that time" of their adoption. Allegiance "as British subjects" was renounced, and those rights were declared which conformed to the views of the American people as an independent people. They did not subordinate themselves to the laws of the country from which they had so recently forcibly separated themselves. There is nothing on the face of the Federal Constitution, or that of this State, recognizing the rules of inheritance "as British subjects." Again, if it be granted that the rules of evidence known to the common law were left in vogue at the time of its adoption by a failure of the Federal Constitution to speak of them, then may it not be said that, when the Sixth *348 Amendment was added to that instrument, it excluded those rules by requiring the "accused to be confronted with the witnesses against him," without qualification or exception? The inclusion of the "confronting clause," minus the four exceptions said to exist at common law, would exclude those exceptions. Sligh's case, supra; 3 Russ. Crimes (9th Ed.) 437, and note a. Texas, however, could not have inherited as a British subject. She came from another source. Her inheritance, if a successful revolutionary child can be forced to take an incumbrance against its will, came from the civil-law source. What of the common law we have is by adoption, not by inheritance, and its standing with us is solely by legislative enactment. Again, it has been decided that, if the accused has once been confronted with the witnesses against him, this satisfies the constitutional demand, and thereafter their testimony may be reproduced without such confrontation. In this event it may be relevant to ask what becomes of the "rules of evidence known to the common law," as well as the rule of "necessity." In regard to this rule it is said, in the Mattox case, that "the substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and in subjecting him to the ordeal of a cross-examination. This the law says he shall under no circumstances be deprived of." This same law, which says "he shall under no circumstances be deprived of meeting the witness face to face," draws no distinction between the first trial and subsequent trials. It guaranties that right in all criminal prosecutions "before an impartial jury." The rights are none the less sacred because there has been one trial. The law does not select the first trial as the place and time of the confronting of the accused with the witnesses. This is judicial selection. Why is this? If once "confronted" means a compliance with the demands of the Constitution in regard to this right, why not apply the same rule of interpretation to those other provisions of Section 10 of the Bill of Rights? What occult reason is there for this difference in the force and operation of those provisions? Why not, upon a subsequent trial, try the accused before the court without a jury, in private, without indictment, deny him process for his witnesses, refuse him the right to be heard by himself and counsel, and try him in his absence? Why were not the "substance" of these constitutional rights preserved to the accused in the advantage of having once enjoyed them, as well as in once seeing the witness "face to face"? The law draws no line of demarkation, but places them on the same plane, and declares they all shall "forever remain inviolate." If the accused's being once confronted by the adverse witness meets the constitutional demand, then it would be unnecessary to bring that witness again to another trial. His evidence could be proved by another who had heard him testify, though the witness then sat in the court room. Why? Because the Constitution has "once" been complied with, and its demand met, and has no further operation in the given case. This is the legitimate outcome of the doctrine under discussion as maintained by those decisions. *349
At common law, and until Queen Anne's time, the accused in felony cases was not entitled to produce, witnesses in his behalf, nor was he permitted to have counsel for his defense. "It is a settled rule at common law," says Mr. Blackstone, "that no counsel shall be allowed a prisoner upon his trial, upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated." 4 Bl. Comm. § 355. Again, he says, "It was all ancient and commonly received practice that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses." 4 Bl. Comm. § 359. "The prisoner was not even permitted to call witnesses, though present, but the jury were to decide on his guilt or innocence, according to their judgment, upon the evidence offered in support of the prosecution." 1 Chitty, Crim. Law, 624, 625. The accused, therefore, at common law, could have no compulsory process for witnesses in his favor. Reyons v. State, 33 Tex.Crim. Rep.; Kidwell v. State,
Be it remembered, that the interpretation of constitutions is peculiarly *350
a phase of American jurisprudence. It originated with us. It had no existence elsewhere. It is not subject to "the law as it existed before;" neither, indeed, can be. We get but little light elsewhere, and this is derived from the rule by which written contracts are construed. The common law cannot furnish us the rule, for it did not deal with an American Constitution. Such an instrument was never within the purview of, or contemplated by, its rules — was a stranger to its growth, development, economy, and its philosophy. Mr. Cooley says: "In American constitutional law, the word 'constitution' is used in a restricted sense, as implying the written instrument agreed on by the people of the Union, or of any one of the States, as the absolute rule of action and decision for all departments and officers of the government in respect to all of the points covered by it, which must control until it shall be changed by the authority which established it, and in opposition to which any act or regulation of any such department or officer, or even the people themselves, will be altogether void." Const. Lim., p. 5. The rule of its interpretation seems to be the same as that applicable to a written contract, and, when the language is plain, direct, and certain, its terms alone should be looked to, and resort to extraneous matters should be excluded. This ride of interpretation has obtained, as I understand it, from the inception of our government. Mr. Story says: "When the words are plain and clear, and the sense perfect and distinct arising on them, there is generally no necessity to have recourse to other means of interpretation." Story, Const., §§ 182-184. "The general principle, on which we have heretofore insisted, that the meaning of a written law is to be found in its terms, and that we are not at liberty to resort to extrinsic facts and circumstances to ascertain what the framers might have intended, has frequently been declared to apply to the Constitution." Sedg. Stat. Const. Law (2nd Ed.), p. 552. In Sturges v. Crowninshield, Chief Justice Marshall said: "It is well settled that the spirit of a constitution is to be respected no less than its letter; yet that spirit is to be collected from its words, and neither the practice of legislative bodies nor other extrinsic circumstances can control its clear language." 4 Wheat., 202, 203. In Newell v. People,
"We are unable to adopt the constructive interpolations ingeniously offered by counsel for defendant in error. Why not assume that the framers of the Constitution, and the people who voted it into existence, meant exactly what it says? At first glance, its reading produces no impression of doubt as to the meaning. It seems all-sufficiently plain, and in such case there is a well-settled rule which we must observe. The object of construction, applied to a constitution; is to give effect to the intent of its framers, and of the people in adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument. To get at the thought or meaning in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement, in which the framers of the instrument have placed them. If the words convey a definite meaning, which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it. Newell v. People,
In view of the fact that the reasons for confronting the accused with *354 witnesses against him have been so often discussed, it would seem useless to enter that field and rediscuss them. For an able exposition of these reasons, see the strong dissenting opinion of Judge Ryland, in the case of State v. McO'Blenis 20 Mo., 402, and the very able and exhaustive brief of Mr. Wright, of counsel for the appellant in said cause. I do not see how the jury are fully enabled to pass upon the weight to be attached to the evidence and credibility of the witnesses, unless they have had the opportunity of seeing them face to face, and hearing them detail their testimony. A just verdict in this respect is incidental to the accused being confronted by said witnesses, and seeing and hearing them is necessary to a correct weighing of their evidence. The manner of testifying, appearance, expressions of countenance, evasion, candor, sudden confusion when detected in a fabricated tale or false statement, are as potent in the minds of the jury, and often more so, than the words used by the witnesses; and yet these things cannot be reproduced before the jury, and, if sought to be reproduced might be excluded, because they would but form the basis for the opinion of the reproducing witness. An intelligent and safe conclusion by the jury as to the credibility of the absent witness would therefore, in such state of case, be impossible; and a fair verdict on the weight of his evidence precluded. It is in all human probability absolutely impossible to reproduce the testimony of an absent witness, for his excluded demeanor, during the time he is testifying, is as much a part of his testimony as the language he uses in detailing his knowledge of the facts stated by him. I have not intended to discuss the rules applicable to the admission of dying declarations, res gestæ, nor what might constitute a waiver by the accused of the presence of the witnesses against him, nor where the accused has kept away from his trial those witnesses who are adverse to him.
Reversed and Remanded.
HURT, Presiding Judge, concurs, and will file opinion.
HENDERSON, Judge, dissents.
Dissenting Opinion
Appellant was convicted of murder in the second degree, and prosecuted an appeal. The judgment was reversed by a majority of the court at the Austin term, 1896. I dissented from the opinion rendered in the case. I will now state my reasons for refusing to agree to that opinion. A majority of the court held that the court below committed an error in allowing the State, over the defendant's objections, to read the evidence of one Monroe, taken in the examining trial of the defendant on the same charge, reduced to writing, and properly certified to; the proof showing that, since giving in his evidence, said Monroe had died. The appellant objected to this evidence, on the ground that it was violative of Section 10 of the Bill of Rights, which guaranties, among other things: "In all criminal prosecutions the accused * * * shall be confronted with the witnesses against him." The court below, following a long line of decisions in *355 this State, overruled the objection, and admitted the evidence. The appellant saved his bill of exceptions, and now urges the question before this court. As I understand the decision, this court holds — First. That examining trial evidence, taken before a magistrate, and offered on the trial of a defendant in the same case or accusation, where the defendant was present, and had an opportunity to cross-examine the witness, is not a deposition, in contemplation of our statute; that is, that Art. 814 (formerly Art, 774) Code Crim. Proc., 1895, does not refer to examining trial evidence, and authorize its introduction against a defendant on his trial when the witness has died since giving his testimony. Second. That, even if said statute (Article 814) authorizes the use of such evidence against a defendant by its terms, it would be unconstitutional, because violative of Section 10 of the Bill of Rights. As the last proposition goes to the very base of the admissibility of the evidence, I will discuss that first. I beg to suggest in advance, however, that, in a field so thoroughly gleaned by able jurists, it would be arrogant in me to presume to offer any new reasons on the subject. I shall therefore content myself with going over the ground already covered, and citing some of the great number of authorities bearing on this subject, and deduce therefrom the principles established long ago, rendering such evidence admissible, in entire accord with our constitutional provision above quoted. No mention is made of this question in Magna Charta, and it does not seem to have been one of the grievances for which King John's subjects demanded redress, unless it be included in Article 39, which is as follows: "No freeman shall be taken or imprisoned or disseised or outlawed or banished or in anyways destroyed, nor will we pass upon him, nor will we send upon him unless by the lawful judgment of his peers or by the law of the land." However, there can be no doubt it was a part of the common law of Great Britain that, on the trial of a criminal case, it was necessary to confront the accused with the witnesses against him. On a trial a defendant could only be convicted of a crime upon the evidence of witnesses for the crown, and these had to be present, and confront him on the trial. 3 BI. Comm., p 373; Green, Eng. People, p. 279. This rule, though it has not always been complied with, has never been gainsaid or denied under the British Constitution; but from time to time, as questions arose, rules of evidence were developed in conformity with the above. As exceptions to the general rule, requiring witnesses to speak as to facts directly within their knowledge, hearsay evidence came to be admitted in many cases, such as matters of res gestæ, declarations of co-conspirators, questions of pedigree, dying declarations, etc. State v. McO'Blenis, 24 Mo., 402; 69 Amer. Decs., 435. This kind of evidence was admitted in criminal cases, and, though hearsay in character, was deposed to by witnesses before the jury; the witness testifying, of course, confronting the defendant. And this was allowed notwithstanding the rule that the defendant should be confronted with the witnesses against him. While the rule required the confrontation, it did not propose to regulate what the witness should *356 testify to when he did confront the defendant. This was regulated by the rules of evidence. And in this connection it was held that the guaranty of confrontation was satisfied if, at any time during the prosecution, the witness confronted the defendant (see Summons v. State, 5 Ohio Stat., 325); the rule at common law being stated in this wise: "If there has been a previous criminal prosecution between the same parties, and the point in issue was the same, the testimony of a deceased witness, given on oath at the former trial, is admissible on the subsequent trial, and may be proved by any one who heard him give the evidence." See, 2 Russ. Crimes, p. 683; Whar. Crim. Ev., § 627.
To show how the matter stood at common law, I will quote from a few of the old English cases: Buckworth's case (decided in 1654, Mich. term, 20 Car., II.; see, T. Raym., 170), upon this point, is as follows: "Information against Buckworth and others for perjury in ejectment. Defendants justified upon not guilty, and now, upon evidence to prove the perjury, one was produced to prove what one that is since dead swore upon the first trial; and by Kelying, Chief Justice, held: 'It shall not be allowed, because betwixt other parties;' but Twisden and Morton contra, and it was allowed." In Pitton v. Walter (5 Geo. I.; decided in 1718) 1 Strange, 162, Pratt, Chief Justice, said: "The bare producing the postea is no evidence of the verdict, without showing a copy of the final judgment, because it may happen that the judgment was arrested or a new trial granted; but it is good evidence that a trial was had between the same parties, so as to introduce an account of what a witness swore at that trial, who has since died." In Radbourne's case (decided in 1787), 1 Leach, Crown Cases, 457, it is held: "An information before a justice, made by deceased on oath, in the presence of the prisoner, may be given in evidence on the trial, though the informant was not apprehensive of death, and though the information be signed by one magistrate only." In Rex v. Woodcock (decided in 1789) 1 Leach, Crown Cases, 500, Lord Chief Baron Ayre says: "The most common and ordinary species of legal evidence consists in the depositions of witnesses, taken on oath before the jury, in the face of the court, in the presence of the prisoner, and received under all of the advantages which examination and cross-examination can give. But beyond this kind of evidence there are also two other species which are admitted by law. The one is the dying declarations of a person who has received a fatal blow. The other is the examination of a prisoner, and the depositions of the witnesses that may be produced against him, taken officially before a Justice of the Peace, by virtue of a particular act of parliament, which authorizes magistrates to take such examinations, and directs that they shall be returned to the court of jail delivery. This last species of deposition, if the deponent should die between the time of examination and the trial of the prisoner, may be substituted in the room of that viva voce testimony, which the deponent, if living, alone could have given, and is admitted of necessity, as evidence of the fact." In Rex v. Smith (decided in 1817; see, Russ. R., 339), held: "Deposition of the deceased *357 held admissible in a case of murder, and though taken when the prisoner was charged with another offense, and although the greater part of it had been reduced into writing during his absence, it appearing that the deceased was afterwards resworn in the prisoner's presence, the deposition then read over and stated by the deceased to be correct, and the prisoner asked whether he had any questions to put to defendant." See, 2 Starkie, 208, and 3 E. C. L., 397. Lord Ellenborough and three of the other judges stated, "that they should have doubted the admissibility of the evidence but for the case of Rex v. Radbourne, 1 Leach, Crown Cases, 457," cited supra. From Reg. v. Beeston (decided in 1855), 29 Eng. Law and Eq., 527, we quote as follows: "The prisoner was charged before a magistrate with wounding A., with intent to do him grievous bodily harm, and A.'s deposition was taken. A. afterwards died of the wound, and the prisoner was indicted for his murder. Held: That, on the trial for the murder, the deposition of A. might be read in evidence. Although it was not on the same technical charge, it was taken in the same case, and the prisoner had had full opportunity of cross-examination. Martin, B., used the following language in said case: 'Our decision is in accordance with the case of Rex v. Radbourne, 1 Leach, Crown Cases, 457, and Rex v. Smith, Russ R., 339. There is nothing in the statutes to show an intention to alter the common law which rendered the deposition admissible, but I believe that, upon the language of the enactment itself, a deposition would be admissible. Crowder, Judge, said: 'I think the deposition receivable at common law and under the statute. It appears to me not to have been the object of the statute to restrict the common law. It is not necessary that the charge in the indictment should be the identical technical case charged before the justice.' " In Reg. v. Scaife (decided in 1851; see, 79 E. C. L., 237), the prisoner, Scaife, was indicted, together with Thomas Rooke and John Smith, for larceny. Evidence was given that, by the procurement of Smith, one of the witnesses for the prosecution had been kept out of the way, and her deposition was tendered. The evidence was admitted to be receivable as against Smith, but it was said that it was no evidence against Scaife and Rooke. The case came before the court of queen's bench, and it was held that the learned judge ought to have told the jury that the evidence applied to the case of Smith only, and not to that of either of the other prisoners. Coleridge, one of the justices, said: "I always understood before the late statute that if a witness was dead or insane, or kept away by the procurement of the prisoner, his deposition was admissible, if properly taken." The judges seem to have entertained no doubt as to the admissibility of the deposition as against Smith, who had spirited the witness away. Mr. Roscoe says. "That depositions are admissible as substantive evidence at common law should the witness be either dead (citing Hale, Penal Code, 305; Rex v. Westbeer, 1 Leach, Crown Cases, 12; Rex v. Bromwich, 1 Lev., 180; 1 Salk., 281; Bull, N. P., 242), or be in such a state as likely never to be able to attend the assizes (Rex v. Hogg, 6 Car. P., *358 176; Reg, v. Wilshaw, Car. M., 145); or if the witness be kept away by the practices of the prisoner (Reg. v. Guttridge, 9 Car. P., 471)." See, 1 Rose. Crim. Ev. (8th Amer. Ed.), p. 104 (marg. p. 69).
These cases show the state of the English law on this subject since the year 1654, and show how the courts of common law regarded the rule of evidence with reference to the right of the defendant on a trial to be confronted with the witnesses against him. As the British Constitution, in its unwritten law, contained this guaranty in every jury trial, so our government, national and State, when they came to adopt constitutions, following in the wake of the mother country, placed this provision as one of the guaranties of a defendant in every criminal prosecution. The clause or expression came to us as understood and defined in England; and when Article 6 of the amendment to the Constitution of the United States was adopted, providing "that in all criminal prosecutions * * * the accused shall be confronted with the witnesses against him," the framers of the organic law were advised of the meaning of said clause with reference to the rules of evidence in regard thereto; and, when the Federal courts came to pass on the question, they gave it the same construction as to the reproduction of the testimony of a deceased witness as had heretofore been given to it by the English courts. See, U.S. v. Macomb, 5 McLean, 296, Fed. Cas. No. 15,702; U.S. v. White, 5 Cranch, C. C. 460, Fed. Cas. No. 16,679; U.S. v. Wood, 3 Wn., C. C. 440, Fed. Cas. No. 16,756; Mattox v. U.S. (decided February 4th, 1895), 15 Sup. Ct., 339. I quote from the latter case as follows: "The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury, in order that they may look at him, and judge by his demeanor upon the stand, and the manner in which he gives his testimony, whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of the testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury, which the law has designed for his protection. But general rules of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go Scotfree, simply because death had closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law, in its wisdom, declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused. We are bound to interpret the Constitution *359
in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject — such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions, in the nature of a bill of rights, are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried further than is necessary to the just protection of the accused, and further than the safety of the public will warrant. For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination; nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question then admissibility. They are admitted, not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of justice. As was said by the Chief Justice when the case was here upon the first writ of error (
As before stated, a great majority of the States of the American Union, in their Constitutions, have a similar clause to the Sixth Amendment to the Constitution of the United States; and so far as I am advised, without exception, in every State where the question has been presented, it is held that where a witness has once testified against a defendant on the same charge, whether in the examining court or at a former *360
trial of the case, and has since died, his testimony can be reproduced. See, Roberts v. State,
In Texas this question first came up in Greenwood v. State,
From the vast number of decisions, English and American, on this subject, all one way — in England construing the question at common law, and in America construing the very letter of the Bill of Rights in regard to the reproduction of the testimony of a deceased witness, considered, discussed and followed by an unbroken line of decisions in our own State — it would certainly seem that, if any question could be considered, settled and fixed in the jurisprudence of a State, this should be, I apprehend no one will dare question at this day, that when the amendment to the Constitution of the United States on this subject was adopted, and when the States of the Union adopted that part of their constitutions requiring "in all criminal prosecutions that the defendant be confronted by the witnesses against him," it was done with reference to and having in view the rule on the subject in Great Britain. Nor will it be gainsaid that when our fathers in the Republic of Texas, in 1836, engrafted this provision in their Bill of Rights, and later, when our State came into the Union, under the Constitution of 1845, with the provision inserted in the Bill of Rights that "in all criminal prosecutions the accused shall be confronted by the witnesses against him," this was copied from similar declarations in constitutions of other States of the American Union; and, in so adopting this provision, they considered what was the rule of construction, and what was the interpretation of similar language in the constitutions of other States. Those who formed our republic were, for the most part, from the older States, and it cannot be assumed that they were ignorant of the common law or of the laws and constitutions of the older States, and the same can be said of those who adopted the Constitution of 1845. As early as 1835, when a provincial government for Texas was first organized, in the instrument of organization, Article 7, provides: "All trials shall be by jury, *364 and in criminal cases the proceedings shall be regulated and conducted upon the principles of the common law of England, and the penalties prescribed by said law in case of conviction shall be inflicted, unless the offense shall be pardoned or fine remitted." The Constitution of the Republic of Texas contains this provision: "Congress shall, as early as practicable, introduce by statute the common law of England, with such modifications as our circumstances and their judgment may require, and in all criminal cases the common law shall be the rule of decision." Article 4, § 13. This was followed by the Act of Congress on the 20th of January, 1840, enacting "that the common law of England (so far as it is not inconsistent with the Acts of Congress now in force) shall, together with such acts, be the rule of decision in this republic, and shall continue in full force until altered or repealed by Congress. Pasch. Dig., Art. 978. When our Code was adopted, in 1856, this additional provision on this subject became a part of the law to-wit: "The rules of evidence known to the common law of England both in civil and criminal cases, shall govern in the trial of criminal actions in this State, except where they are in conflict with the provisions of this Code or some statute of this State." Our Constitution of 1845, was framed by men familiar with the principles of English common law. Many of them had attained eminence in their States before their removal to Texas, and were conversant with their systems of constitutions and laws. This is made manifest by the fact that all of the cardinal principles of our Constitution are but copies from the older States. The provision in question, to-wit: "In all criminal prosecutions the accused shall be confronted by the witnesses against him," etc., is an exact counterpart of that contained in the Constitutions of it number of States, and is substantially similar to that of others; and to say that our Constitution builders were seeking new guaranties for our citizens, not known in the older commonwealths, or were proposing a new experiment, it seems to me, would be attributing to them a degree of ignorance and audacity neither warranted by the work they did, or by the history of those times and traditions that have been handed down to us. Our Constitution builders were lawyers, and they knew what they were doing, and when they said, "The accused shall be confronted by the witnesses against him," they knew how this question had been construed by the English courts, and they knew how it had been construed by the American courts under constitutional provisions similar to ours; and so, in all our constitutions from 1845 up to the present time, this provision has been carried forward in exactly similar language. And, moreover, our Constitution builders, in 1876, and our people who approved their work, knew how this provision had stood in former constitutions, and knew how our own courts, in Greenwood v. State and Black v. State, had construed a former similar provision; and it is a familiar rule of construction that when a statute is adopted from an English statute, or copied from a statute of another State, it is deemed to have been adopted together with the construction placed thereon by the courts of *365 such State. See, 23 Amer. and Eng. Ency. of Law, p. 432, and authorities there cited. "Where the words have been long used in a technical sense, and have been judicially construed to have a certain meaning, and to have been adopted by the legislature as having a certain meaning prior to a particular statute in which they are used, the rule of construction requires that the words used in such statute shall be construed according to the sense in which they have been so previously used, although that sense may vary from a strict literal meaning of the words. * * * In the interpretation of re-enacted statutes, the court will follow the constructions which they received when previously in force. The legislature will be presumed to know the effect which such statutes originally had, and, by re-enactment, to intend that they should have the same effect. So, statutes originally enacted in another State, when adopted, are deemed to be taken with the settled construction given them in the State from which they are copied." See, Suth. St. Const., §§ 255, 256, and authorities there Cited. On this subject Judge Cooley says: "Great Britain and the thirteen original States had each substantially the same system of common law originally, and a decision by one of the higher courts of Great Britain as to what the common law is upon any point is certainly entitled to great respect in any of the States, though not necessarily to be accepted as binding authority, any more than the decisions in any one of the other States upon the same point. It gives us the opinions of able judges as to what the law is, but its force as an authoritative declaration must be confined to the country for which the court sits and judges. But an English decision before the Revolution is in the direct line of authority; and where a particular statute or clause of the Constitution has been adopted in one State from the statutes or Constitution of another, after a judicial construction had been given it in such last-mentioned State, it is but just to regard the construction as having been adopted as well as the words, and all the mischiefs of disregarding precedents would follow as legitimately here as in any other case. Cooley, Const. Lim., p. 64. "When a constitutional provision has received a settled judicial construction, and is afterwards incorporated into a new Constitution, or into the Constitution of another State, it must be presumed to have been adopted with the knowledge of that interpretation, and the courts will feel bound to adhere to it." See, 3 Amer. and Eng. Ency. of Law, 679, and authorities there cited.
In Munsen v. Hallowell,
These authorities not only show that our Supreme Court, in Greenwood's case, and in Black's case, were required to adopt and follow the construction (as they did) placed on said provision of the Bill of Rights in regard to the confrontation of the accused by the witnesses against him, as placed thereon by the courts of the American States, but after the decisions in Greenwood's and Black's cases, which reengrafted the same interpretation that had been placed upon the Bill of Rights by other States — after the adoption of the Constitution in 1876 — our Court of Appeals was doubly bound to follow the interpretation placed upon this provision of the Bill of Rights, not only by the courts of other States, but by those of our own as well. This, as has been seen, was done in a great number of cases. So much for the construction of Section 10 of our Bill of Rights. But it is urged that the testimony offered in this case was examining trial evidence, and that such evidence is not a deposition; so that, even if our Bill of Rights authorized the reproduction of the testimony of a deceased witness, said statute relating to depositions does not cover examining trial evidence. Our statutes authorizing depositions in criminal cases are to be found in our Code of Criminal Procedure of 1895, from Article 797 (formerly 757) to Article 814 (formerly 774), inclusive, and also Article 24 (formerly 25). Article 814 is as follows: "The deposition of a witness taken before an examining court or a jury of inquest, and reduced to writing, and certified according to law, in cases where the defendant was present when such testimony was taken, and had the privilege afforded him of cross-examining the witness, may be read in *368 evidence, as is provided in the two preceding articles for the reading in evidence of depositions." Article 24 is its follows: "The defendant upon trial shall be confronted with the witnesses, except in certain cases provided for in this Code, where depositions have been taken." I might content myself with simply citing the decisions of this court in Johnson v. State, 1 Tex.Crim. App., 333, and Kerry v. State, 17 Tex.Crim. App., 178. Johnson's case was decided in 1870, before the passage of Article 814, which was passed in 1879. At the time of the decision there was in existence a statute passed in 1866. See, 2 Pasch. Dig., Art. 6605. Said statute was as follows: "In all criminal prosecutions where the testimony of a witness has been reduced to writing, signed, and sworn to before an examining magistrate, or before any court, and the witness has died since giving his testimony, the testimony so taken down and reduced to writing may be read in evidence by such defendant as proof of the facts therein stated, upon any subsequent trial for the same offense; provided, however, that in all other respects testimony of such deceased witness shall 'be subject to the established rules of evidence in criminal cases. In every case death must be established to the satisfaction of the court." It was contended in said case that the statutes only authorized the use of depositions by defendants, and excluded an appeal to the common law for the introduction of' examining trial evidence on behalf of the State. The question was thoroughly discussed, and it was held that said statute did not even confer a new right upon the defendant, but merely placed in positive form a right which he already possessed, and left the rights of the State in the same condition as before its passage; and that the right to reproduce the testimony of a witness taken on an examining trial, and since deceased, was a right possessed by the State at common law; and the rules at common law, being authoritative in this State, when not in conflict with the provisions of the Code, could be appealed to here. See, Code Crim. Proc., 1895, Art. 763. And the court, further discussing the statutes of Philip and Mary on the subject of examining trial evidence, substituted by 11 and 12 Vict., quoting from Mr. Archibald, uses the following language: "Although the statutes relating to the examination of witnesses against a prisoner before a Justice of the Peace previously in force contained no such express enactment as the above, it was yet determined in many cases, and recognized as a rule of law, that in all cases of examinations of witnesses in cases of felony, under these statutes, where they were taken in the presence of the accused, and he had the opportunity of cross-examining them, the deposition of any such witness might be read in evidence against the accused on his trial in case the person who made the deposition was dead." See, also, 1 Bishop's Crim. Proc., § 1093. And Coleridge, Judge, says: "Before the enactment of 11 and 12, Vict., Chap. 42, I always understood the law was that, if a witness was absent by reason of death, the deposition was receivable in evidence against him," — citing, Reg. v. Scaife, 2 Denison, Crown Cas., 281-286, 17 Q. B., 238. The *369 evidence in said case was held admissible. Kerry's case was decided by this court in 1884, after the enactment of Article 814, and construed said article to authorize the introduction of examining trial evidence, stating, however, that the legislature, in said article, had used the word "deposition" by mistake for the word "testimony" or "evidence." In the latter observation, however, I do not concur, but believe it was the proper term. The word "deposition," in its broadest sense, is defined to be "the evidence of a witness taken down in writing, and sworn to before an officer." See, 5 Amer. and Eng. Ency. of Law, 581. "In procedure, 'depositions,' in the most general sense of the word, are the written statements, under oath, of a witness in a judicial proceeding. It is in this sense that the term is used when we say that, where a witness is dead, his depositions at a former trial are admissible in evidence on a subsequent trial between the same parties." See, 1 Rap. and L. Law Dict., 376, citing Pow. Ev., 183. Mr. Roscoe, Mr. Wharton, and Mr. Phillips all treat examining trial evidence under the head of "Depositions." Examining trial evidence was called a "deposition," and it does not matter that depositions were unknown to the common law. If we get the name "deposition" applied to examining trial evidence, then we have authority for our legislature to so term such testimony.
I do not deem it necessary to enter into a discussion of Article 814, in connection with the other articles of our Criminal Code of Procedure regarding depositions; in order to show that said Article 814 was not intended merely to be supplementary to the statutes authorizing depositions for defendants, but is an independent statute, authorizing the use of depositions for the State. A reference to said article and to the other articles of the Code, I believe, will clearly demonstrate this. Judge Hurt, in Post v. State, decided in 1881 (see, 10 Tex.Crim. App., 579), stated the correct rule which would govern in cases where the evidence had been taken before an examining court, to-wit: "If the deposition is taken before an examining court or a jury of inquest, and is reduced to writing, and certified according to law, and the defendant was present when such testimony taken, and had the privilege afforded him of cross-examining the witness, and, since the deposition was taken, the witness has died, or has removed beyond the limits of this State, or has been prevented from attending the court through the act or agency of the defendant, or by the act or agency of any person whose object it was to deprive the defendant of the benefit of the testimony, or if, by reason of age or bodily infirmity, such witness cannot attend, the deposition is admissible. This rule has reference to depositions taken before examining courts." In Kerry v. State, supra, the construction of this statute (Article 814), was settled in a clear and convincing opinion.
I would further suggest, in this connection, that said article was enacted in 1878, was construed in 1881 and 1884, and, when it was re-enacted in 1895, came to us with a definite and fixed meaning and construction, and included in that construction examining trial evidence. Said article marks the only contingency in which the actual presence of *370 the witness is dispensed with on the trial, and is based on Article 25, which requires the accused to be confronted with the witnesses against him in all trials, except where depositions are authorized. This article is held in accord with the Constitution, upon the theory that the Constitution requires it confrontation of the witness with the accused in every criminal prosecution, and that this is satisfied when the witness, at any stage of the prosecution, has confronted the defendant, and been examined as a witness before a competent tribunal, and the defendant has had the privilege of a cross-examination. In all other cases there must be an actual confrontation of the accused by the witness; but, when lie has once confronted the accused, what he shall testify is regulated by the rules of evidence. Both, upon reason and authority, it occurs to me that examining trial evidence is a deposition, and that it is admissible on a subsequent trial of the defendant, where it is shown that the witness making the deposition has since died.
Recurring to the interpretation of our constitutional provision on the subject of confrontation of the accused by the witnesses against him, in my judgment it is immaterial how this interpretation grew up or came about. Whether founded upon necessity, like a great many rules of evidence, which appear to be exceptions to general rules, or whether, in accordance with the provision of the Constitution, it was construed that, the witness once having confronted the accused, and been subjected to a cross-examination, the constitutional provision was satisfied, or whether the Constitution merely proposed to require a confrontation of the accused by the witness, but did not propose to regulate what the witness should say when once confronted, but left this to the rules of evidence, is now of no importance. It has become the settled law of the land, and to uproot or destroy it, it occurs to me, will be fraught with grievous results. This construction of the Constitution, in connection with the rules of evidence, has the sanction of the great lawyers and of great jurists, both in England and in this country, whose decisions form an unbroken current in support of the rule we have adopted. It has been found efficacious in the past, enabling courts to preserve and perpetuate testimony against great criminals, and bring them to justice. It is comparatively easy recently, after an offense has been committed, to bring the witnesses together, and, on a preliminary hearing, procure their testimony, and reduce it to writing; and in such case the witness has confronted the defendant, and he has had the privilege of a cross-examination upon all the points of the witness' testimony; and to hold that after the witness has so testified, if, on the nest day, he should die, and the State should not be permitted to use his evidence, taken under all of the formalities and sanctity of the law, would be to authorize in many cases the escape from punishment of persons guilty of crime. It would be resting the administration of the law upon a very brittle thread, and it would be an invitation to criminals themselves to dispose of the testimony against them. There is too much at stake in the conservation of life and property to deal lightly with this subject. If the contrary rule *371 shall prevail, and it shall become the law of this State that examining trial evidence of a deceased witness, or parol evidence given by a witness on a former trial of the case, said witness having since died, cannot be used on a subsequent trial against a defendant, it will not only revolutionize our criminal jurisprudence, but it will be letting down the barriers in favor of criminals, when our Code requires our laws to be liberally construed, in order to suppress crime and bring offenders to justice. If it was important in the early days to preserve this character of evidence, it is equally as important now. Moreover, the same argument so ably and strenuously urged by a majority of this court why this testimony should not be admitted clearly goes to the exclusion of all hearsay testimony, and especially of dying declarations. The same logic by which the result is reached in the one case is also applicable in the other. By our statute, dying declarations are made admissible testimony; yet this is not a confrontation of the witness, in accordance with the construction insisted on by the court. The dead man cannot speak, and cannot confront the defendant; yet, from time immemorial, he has been permitted in the courts, both in England and America, to tell the jury, through the mouth of another (who heard his dying declarations), who killed him, and the circumstances attending the homicide, and often this character of evidence has brought the murderers to justice. It is conceded to be hearsay evidence, but it is admitted on the ground of necessity. It is without an oath, and not made in the presence of the accused, and not subjected to cross-examination. It is admitted as an exception to the general rule of evidence, but the exception is as well recognized as the rule itself. If the opinion of the majority of the court in this case is to become the law of the land, then we are all wrong in admitting this character of testimony. We must exclude dying declarations, because such evidence violates the Constitution. If, on the other hand, we cling to the rule heretofore laid down — that the Constitution in criminal cases requires the witness to confront the defendant, but leaves to the rules of evidence what he shall testify to when he confronts him — the Constitution will be conserved, and we will have no difficulty in the admission of dying declarations. And the same rule will authorize the reproduction of the testimony of a dead witness in other cases. Let us be consistent with ourselves, and, by all means, "let us hold fast to that which is good," and let us not reach out after "new guaranties by judicial reconstruction" (if I may use the expression); especially when these new guaranties are violative of established rules and precedents, which, in the experience of the past, have been found to work for the good of society, and to conserve life, liberty, and property. If, however, the established construction of this provision of our Constitution is to be overturned and trodden under foot, I will utter my protest, and I will set up, as I have endeavored to do, the ancient landmarks of our jurisprudence. If they do not direct our footsteps now, happily they may serve as beacon lights in the future, to guide those who may come after us back into the true path. My brethren *372 have said, "Nothing is settled until it is rightly settled;" and I say that the right was never yet unsettled that it did not struggle to its own again. "Truth crushed to earth will rise again. The eternal years of God are hers."