State v. . ThomasState v. . Thomas
Bor the purpose of showing that the •cotton, in regard to which the perjury is charged to have been committed, was received by the defendant, the books of the North Carolina Bail Boad Company at Thomasville station were offered in evidencе. It was shown that the entries were in the handwriting of one Lea, a former agent of the сompany at said station, and were in reference to the ordinary business transaсtions of the corporation.
‘‘The death of Lea was not shown; but that he was liv.ing a shоrt time previous in the State of Missouri.” The evidence was objected to by the defеndant; objection overruled ; and the defendant excepted. We must assume that the entries furnished material evidence, and that Lea was living and was absent from the State. We take occasion to ■say that it was the duty of his Honor to pass upon this fact, and to set it out as a fact, and the recital of the evidence from which he made the inferеnce a fact, is superfluous and irregular.
It is a cherished rule of the common law, that in trials by jury the witnesses shall be openly examined and cross- *76 examined, in the presenсe of the parties and. of the jury. An exception is made in regard to dying declarations, hut this exception is restricted to indictments for homicide against the party who сaused the death, and is based on the .maxim, ‘‘no man shall take advantage of his own wrоng.” A relaxation of the rule is also made, so as to admit in evidence what a witness who is dead swоre on a former trial before a jury, or a committing magistrate; upon the ground that thе accused had the benefit of confronting the witness, and of a cross-examination, and is only deprived of one test of truth, the presence of the witness before the jury, which loss was caused by the act of God: State v. Valentine, 1 Ire. 225.
In the case before us, it was-material on the part* of the State to prove the delivery of the cotton to the defendant, at Thomasville. To make this proof, the presence of the witness was necessary, (1) that he might be put under the obligation of an oath, (2) that the jury might note his looks and demeanor, (3) that the defendant might confront him with other witnesses, and (4) that the defendant might cross-•examine him. Constitution, Art. I sec. 11: ‘‘In all criminal prosecutions every man has a right to he informed of the accusation against him, and to confront the accusers and witnesses with other witnesses.” ¥e take it that the word comfront does not simply secure to the accused the privilеge of examining witnesses in his behalf, hut is in affirmance of the rule of the common law, that in triаls by jury, the witness must be present before the jury and accused, so that he may be confrоnted, that is, put face to face.
Upon the trial; it being proved that Lea was absent and not within reach of the process of the Court, all of these safeguards which the law has provided for the purpose of excluding falsehood, in favor of one charged with an infamous crime, are by the ruling of his Honor, put out of the way; and entries made by Lea, in the boоks of the Bailroad Company are admitted to prove the delivery of the cоtton in the *77 stead of — tbe solemn oatb of Lea subjected to the tests of truth ordained by the law of the land.
Whether the entries would be admissible as evidence, on proоf of the death of Lea, is a question not now presented. We are satisfied that thе entries were not admissible, on proof of Lea’s absence from the State. If suсh was the law, it would be infinitely better for persons accused of crime to consent to have the depositions of witnesses who are absent from the State, read in evidence; for they would thus secure the safeguards of an oath, and of a cross-examination, and be deprived only of the safeguard of confronting the witness in the prеsence of the jury. And yet, neither the Chancellor, according to the practice in England of issuing commissions to take depositions, of witnesses residing abroad, nor the Lеgislature, in passing statutes for the same purpose, have ever supposed that they had the power to deprive the accused of his right to confront his acсusers and their witnesses, before the jury.
As the trial was conducted, the defendant has, in this point, 'been deprived of the safeguards provided by law in favor of life and liberty, and therefore has not been convicted according to law. There is error.
This will be certified, to the end, &c.
Pee Cubiam. Vemre de novo.