Cline v. State

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 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 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 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,27 Tex. 765; People v. Restell, 3 Hill, 289, 296; 3 Russ. Crimes, 464; 5 Met. 412, 427; 1 Chitty's Crim. Law, 585; 1 Bishop's Crim. Proc. (1 Ed.), § 1090, et seq. The "testimony" taken in an examining trial, under the provisions of Article 267, supra, was not a deposition authorized to be taken under the provisions of Articles 751, 771, or 774. I have discussed Article 774 as being within the legitimate creative power of the legislature, and not an infringement of the constitutional provision requiring the accused to "be confronted with the witnesses against him." I therefore think the decision in the Kerry case, supra, is erroneous in holding that the word "deposition" means "testimony" taken on an examining trial, and if this character of evidence can be used by the State at all, it must be taken as a "deposition." In this connection I may further say that this court has not been settled in its opinions in regard to this matter. In reviewing the right of the State to use examining trial evidence of witnesses who, at the time of the final trial of the case, were beyond the limits of the State, this court said: "The admission of this character of testimony rests solely upon necessity, and the rule as to its admission 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., 464-490. Authorites cited: Johnson v. State, 1 Tex.Crim. App., 333; Sullivan v. State, 6 Tex.Crim. App., 319, 342. If this be true, such testimony was admitted as a "necessity," and not under Article 774. The doctrine of these cases would eliminate said Article 774, whether the Kerry decision be right or wrong, because that statute would be "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;" and the rule would exist by necessity, "judicial necessity," and not by virtue of the said article. If "deposition" and "examining trial evidence" mean the same thing, and are "innovations" upon the constitutional inhibitions or guarantied rights, it must follow that the statute is void.

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, 33 Tex. Crim. 153. And this rule is well settled, and has been followed in this State with singular tenacity, except when the accused is to be confronted with the witnesses against him. Three of these "rights" are enumerated in the same sentence, included between the same grammatical periods, to-wit: "He [the accused] shall have the right of being heard by himself or counsel, or both; shall be confronted with the witnesses against him; shall have compulsory process for obtaining witnesses in his favor." The courts have thus far religiously interfered with any and all encroachments upon the first and third of these rights, but have found many excuses for upholding violations of the other. I am unable to appreciate these reasons, though they have the sanction of great jurists and exalted courts. The principal reasons given in the decisions seem to be based on necessity, the rules of evidence known to the common law; and, having been once confronted with the adverse witnesses, the constitutional requirement has been complied with, and the accused can be thereafter confronted with examining trial evidence, or the oral testimony of such witnesses, reproduced through the mouths of others who may have heard them testify. There are many decisions sustaining one or more of these judicial exceptions. I do not purpose examining these decisions in detail. I have neither the time nor the inclination to do so. They are familiar to the profession. I shall only notice these questions in a general way. The Bill of Rights declares that, "in all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury. 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. * * *" Who is to be tried? The accused. When? In "all criminal prosecutions." What is the character of this trial? "A speedy public trial." By whom is he to be tried? "An impartial jury." Can there be any want of certainty as to these propositions? I think not. It is too plain for discussion that these "prosecutions" are to be had before a jury — "an impartial jury." Whatever else this provision may mean, it does mean a trial before a jury. Otherwise, these provisions of the Constitution are meaningless, and have an occult or hidden meaning not apparent on the face of the language employed, and which must be sought elsewhere. It is as clear, as positive, as certain, as definite, that the accused "shall be confronted with the witnesses against him in all criminal prosecutions," as it is that he shall have his trial before "an impartial jury," or that he shall have "compulsory process" for his witnesses, or be heard "by himself or by his counsel, or both," or to be tried on an "indictment" preferred "by a grand jury." The "criminal prosecutions" pertaining to one of these rights applies with equal force and cogency to any and all the others. If one right can be satisfied by the accused having once enjoyed it, then I see no reason why each cannot be satisfied in the same way and for the same reasons. "An impartial jury" is not an "examining court." It is not a habeas corpus proceeding, nor is it a rule of evidence known to the common law. To give this expression the meaning intended by the Constitution, the provision under discussion should read as follows: "In all trials before a jury in all criminal prosecutions, the accused shall be confronted with the witnesses against him." The other two clauses in regard to compulsory process for the witnesses of the accused, and his right to be heard by himself and his counsel, are taken in this sense. Speaking of this section of the Bill of Rights, this court said: "Evidently these matters all relate to proceedings in the trial court." Tooke v. State, 23 Tex.Crim. App., 10. This can mean nothing less than that, on the trial in a criminal prosecution, before a jury, the accused shall be confronted with the witnesses adverse to him. It is unquestioned that "he shall be present" at the trial to confront the witnesses. Why, with equal cogency, are not the witnesses required to confront the accused on that trial? The word "confronted" applies as well to the witnesses as to the accused. Under that term the presence of the accused is required, and there is no apparent reason why it should have a different meaning when applied to the witnesses. How can it be held to require the presence of the accused, and excuse the attendance of the witnesses against him? There must be an accused, and there must be witnesses to confront him. If the accused be absent, and the witnesses present, there could be no trial. There might be a forfeiture of a bail bond, but not a trial of the accused in the "prosecution." If the accused presents himself at the trial, and there are no "witnesses against him," there would still be no trial. Not only so, but an examination of the witnesses cannot, be had, even if the accused be only temporarily absent during the trial. Bell v. State, 32 Tex.Crim. Rep., and cited authorities; Rudder v. State, 29 Tex.Crim. App., 262. The Constitution demands the presence of both the accused and the witnesses. The legislature seems to have had the same conception of this provision, for it enacted that "the defendant upon a trial shall be confronted with the witnesses, except in certain cases provided in this Code, when depositions have been taken." Code Crim. Proc., Art. 25. I am assuming that the "trial" specified in this statute (Article 25), means a trial before a jury, and the "witnesses" mentioned are those "against him," though this must be arrived at by intendment and construction. It is not so stated in the statute, nor is this meaning anything like so clear as that shown by the Constitution. The "trial" of the Constitution is a trial "by an impartial jury," and it is clear to my mind that the law-making power so understood it, if the statute (Article 25) means a trial before a jury by the expression "upon a trial." A "trial" before a "jury" is not a trial before an examining court, or under the writ of habeas corpus. If it be true that the statute refers to jury trials, how much stronger and more cogent is it that the Constitution means a "jury trial." If the expression by an impartial jury" be supplied by intendment in the statute to convey the idea that a jury trial is there meant, how can the expression "by an impartial jury" be stricken from the Constitution, by interpretation, in order to deprive the accused of the right of being confronted with the State's witnesses? It would, indeed, be a strange rule of interpretation that would permit the elimination of the plain meaning of terms and words used in the Constitution, and yet supply a similar meaning to language in the statute, not so certain in its significance and meaning. I see no room for construction as to the constitutional provision, for it uses words which convey a plain purpose or object. Again, the witnesses alluded to in the statute are not specifically designated; in the Constitution they are. By intendment it may be held that the witnesses against the accused are meant in the statute, but it is not so written in terms. We can only hold it so by construction, and thus be enabled to reach the conclusion that such was the intention of the legislature. If this is correct, the Constitution and the statute mean the same thing.

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, 27 Tex. 765; People v. Restell, 3 Hill, 289, 296; 3 Russ. Crimes (9th Ed.), 464; 84 Ky. 354. But, if they were, they would be excluded by the statute, because it expressly confines such testimony to depositions taken under provisions of the Code. Code Crim. Proc., Art. 25. The language of Article 25 is exclusive, and requires the accused to be confronted with the witnesses "on the trial," except in cases where depositions are taken under the provisions of the Code. It does not recognize depositions provided by English statutes. Our statute provides: "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 of some statute of the State." Code Crim. Proc., Art. 725. There is no provision of law in our Codes recognizing English statutory depositions. We are confined to common-law rules of evidence when not in conflict with our procedure. It is also enacted that "the rules of evidence prescribed by the statutes of this State, in civil suits, shall, so far as applicable, govern also in criminal actions, when not in conflict with the provisions of this Code or of the Penal Code." Code Crim. Proc., Art. 726. It is further provided by statute that, "whenever it is found that this Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern." Code Crim. Proc., Art. 27. Then it would follow that no matter of procedure or rule of evidence known to the common law would have any standing in this State, in criminal cases, when our Codes have provided rules in regard to the particular question. If the rule be the same under the statute as at common law, then the statute occupies the territory, and it is a rule in law, as in physics, "that two bodies cannot occupy the same space at the same time," and for this reason the statute must prevail. If they be antagonistic, then, of course, the statute expressly excludes the common law. So, in either case, the common law must yield. Neither the statute nor the common law can in any event supplant the Constitution. This constitutional provision excludes all rules of evidence, statutory as well as common law, if antagonistic to its letter, meaning or intent. A rule of evidence "known to the common law of England" cannot supplant the statute. Much less can it override and annul the Bill of Rights, even if the legislative power had sought to accomplish that purpose. But this has not been, nor sought to be, done by legislative enactment, as I understand the statute. The error lies in judicial construction. We have our own examining courts; and if testimony taken before these courts are "depositions," then they are admissible, if at all, only under the statute; and if not depositions, they are excluded by Article 25. Authorities above cited.

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 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 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, 48 Mich. 54; 11 N.W. Rep., 783, and authorities cited. In that case it was further said: "It must be confessed, also, that although the English practice has always been to allow depositions of deceased witnesses in ordinary criminal cases, a contrary rule seems to be recognized in treason cases, upon the ground that there the statutes provide — as they nowhere else provide, but as our Constitution provides in all cases — for confronting prisoner and witnesses on the trial." See, also, 1 Hale, P. C., 306, 586; 2 Hale, P. C., 286; 3 Russ. Crimes 9th Ed., 437, and note a; Fost. Crim. Law, 236, 328; 1 Chitty, Crim. Law, 585. This practice, in England, is founded and rests upon statutes. Those who maintain a common-law rule assert that, if the accused has once been confronted, the evidence of the witness may be reproduced, if he is dead, insane, kept away by the adverse party, or is too infirm to be able probably ever to attend the trial. If this proposition is correct, this clause of the Constitution should read as follows: "The accused shall be confronted with the witnesses against him, except where he has once been so confronted, and the witnesses have died, become insane, have been kept away by the adverse party, or are too infirm to probably ever be able to attend the trial." If such is the meaning of the Constitution, very singularly inappropriate language was employed to convey that meaning, and we must seek elsewhere than the terms of that instrument for its meaning. I am cited to the recent decision by the United States Supreme Court in the Mattox case, 15 Sup. Ct., 340, in which it is said: "We are bound to interpret the Constitution 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." This exception announces some propositions which to my mind are not in harmony with the "spirit" of our government and Constitution, and certainly not found in the "letter" of that instrument. I do not understand how our Constitution, a novelty in governmental experience and science, wholly unknown to the common law, or the "law as it existed," could be interpreted by that law. It is not clear how "many of its provisions, in the nature of a Bill of Rights, are subject to exceptions, recognized long before the adoption of the Constitution," when there was no Bill of Rights to which these "exceptions" could relate. There must be an existing law before there can be exceptions to it. Not only so, but our theory of government, is constituted upon a basis fundamentally at variance with the principles of the British government, and is constructed upon the theory that citizenship is the creative power of government, that all governmental authority and power in the States is derived from the people, and that there is no power above the Constitution, except the people who created it. In other words, ours is a constitutional government, in the States ordained by the people, and the Federal Constitution one of delegated authority conferred by the States. How, it may be asked, can the delegated authority of the Federal government be inherited by that government as a British subject? The Federal authority, in all its bearings and extent, is exercised alone by virtue of the terms of the Federal Constitution, and that Constitution is the act of the States. It inherited nothing. Its powers are conferred. It is the creature of the States, not the child of the common law, nor was ever the subject of the British government.

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 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.

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,35 Tex. Crim. 264. No decision that I am aware of has yet laid down the rule that, if the accused has once been heard by himself or counsel, or has had compulsory process for witnesses in his favor, these constitutional rights were for this reason inapplicable to subsequent trials of the same case. Yet these demands are of no higher standing than that which requires the accused shall be confronted with the witnesses against him, or that, having been once enjoyed, the common law rule refusing them could be invoked. Such a ruling would not be in accordance with the due process of law. No rule can be due process of law which ignores legal justice, or which clearly sets at naught the plain letter of the law. We cannot reach the ends of legal justice by setting at defiance those rules prescribed for attaining it. We cannot hope to enforce and preserve the Constitution by setting aside and overriding its plainly written requirements, and violating its imperative demands. It is not right to wrong, and the Constitution is not maintained by overturning it. The three grounds by which it is said testimony of witnesses can be reproduced upon a subsequent trial, without confronting the accused with the adverse witnesses, are at variance with each other. If either be correct, the others, it would seem, cannot be. "Necessity" knows no exceptions, save those imposed by the dispensing power. The common law is said to be limited by four exceptions, and having once confronted the accused with the adverse witnesses fully satisfies the constitutional demand; hence, it ceases to be operative. In some cases, notably the Mattox case, all of these rules are sanctioned, inconsistent as they are. All of them are outside, and beyond, and antagonistic to the Constitution, as well as to each other. The rule of interpretation adopted in the Mattox case is at variance with that followed by our courts, coeval with the existence of the judicial system of ourcountry with reference to the interpretation of the plainly-written terms of constitutions.

Be it remembered, that the interpretation of constitutions is peculiarly 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, 7 N.Y. 9, it was said: "Whether we are considering an agreement between parties, a statute, or a constitution, with a view of interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural significance of the words employed, in the order of grammatical arrangement, in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between the different parts of the same writing, then that meaning apparent on the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither legislatures nor courts have a right to add to or take away from that meaning." This rule was again declared by the Supreme Court of the United States in Lake Co. v. Rollins, 130 U.S. 662, 9 Sup. Ct., 652; hence, has an unbroken array of authority supporting it. In that case the court say:

"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, 7 N.Y. 9; Hills v. City of Chicago, 60 III., 86; Denn v. Reid, 10 Pet., 524; Leonard v. Wiseman, 31 Md. 201-204; People v. Potter, 47 N.Y. 375; Cooley's Const. Lim., 57; Story, Const., § 400; Beardstown v. Virginia, 76 Ill. 34. So, also, where a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. U.S. v. Fisher, 2 Cranch., 358, 359; Doggett v. Railroad Co., 99 U.S. 72. There is even stronger reason for adhering to this rule in the case of a constitution than in that of a statute, since the latter is passed by a deliberative body of small numbers, a large proportion of whose members are more or less conversant with the niceties of construction and discrimination, and fuller opportunity exists for attention and revision of such a character, while constitutions, although framed by conventions, are yet created by the votes of the entire body of electors in a State, the most of whom are little disposed, even if they were able, to engage in such refinements. The simplest and most obvious interpretation of a constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption. Such considerations give weight to that line of remark of which People v. Purdy, 2 Hill, 31-36, affords an example. There, Bronson, Judge commenting upon the danger of departing from the import and meaning of the language used to express the intent, and hunting after probable meanings not clearly embraced in that language, says: 'In this way the Constitution is made to mean one thing by one man and something else by another, until in the end it is in danger of being rendered a mere dead letter; and that, too, when the language is so plain and explicit that it is impossible to make it mean more than one thing, unless we lose sight of the instrument itself, and roam at large in the boundless fields of speculation.' " For one, I dare not venture upon such a course. Written constitutions of government will soon come to be regarded as of little value, if their injunctions may be thus lightly overlooked; and the experiment of setting a boundary to power will prove a failure. "Words are the common signs that mankind make use of to declare their intention to one another; and, when the words of a man express his meaning plainly, distinctly, and perfectly, we have no occasion to have recourse to any other means of interpretation." For additional authorities, see, 3 Amer. and Eng. Ency. of Law, p. 379, note 1. I have thus liberally quoted from this decision because it presents the rule of interpretation applicable to the provision of the Constitution under discussion in the case under consideration. The rule in the Mattox case is inappropriate in a case where the meaning is plain on the face of the instrument. Rules of construction should never be resorted to, nor rules of interpretation invoked, unless a necessity exists therefor; and Vattel says: "It is not allowable to interpret what has no need of interpretation." 76 Ill. 34-40; Cooley, Const. Lim., 55. Again, the proposition is a sound one that courts, in the interpretation of constitutions, have nothing to do with the argument ab inconvenienti, and should not "bend the Constitution to suit the law of the hour." Greencastle Tp. v. Black, 5 Ind. 557, 565; Oakley v. Aspinwall, 3 N.Y. 547, 568. That inconvenience may and will arise from an adherence to the Constitution may be conceded, but this affords no reason for construing away its provisions. It is not for the courts or legislatures to supply these defects. This is for the people who made that instrument. As was said by Bronson, Chief Justice. "If the legislature or the courts may take that office upon themselves, or if, under color of construction, or upon any other specious ground, they may depart from that which is declared, the people may well despair of ever being able to set any boundary to the powers of government. Written constitutions will be more than useless. Believing, as I do, that the success of free institutions depends upon a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for latitudinarian constructions which are resorted to for the purpose of acquiring power — some evil to be avoided, or some good to be obtained, by pushing the powers of government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people can amend it; and the inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the Constitution which nothing can heal. One step taken by the legislature or the judiciary in enlarging the powers of government opens the door for another, which will be sure to follow; and so the process goes on until all respect for the fundamental law is lost, and the powers of government are just what those in authority please to call them." Oakley v. Aspinwall, supra. The evils of such a rule are too obvious to require enumeration or discussion at my hands, and courts should set upon it the seal of judicial disapprobation. Let the people who made the Constitution remedy its defects, as they alone have the right to do. But I do not admit the Constitution is defective in the matter under discussion. The rule of stare decisis has but little application in criminal jurisprudence, and ought to have none, when wrong, and tending to overturn the plainly-written law. May it not be said correctly, in criminal law, in this connection, that adjudicated error, persisted in, cannot make truth of that error? Can any question truthfully be said to be settled until it has been correctly settled? Courts may declare it settled, but those rulings will be questioned and assailed until they are overturned, and the truth is made to prevail. This is right, and it should be so. In criminal jurisprudence, the courts are largely unincumbered with "rules of property rights" involved in the rule of stare decisis. It is error to say that the provision of the Constitution under discussion is a "rule of evidence," and subject to exception, if to be judged by the ordinary rules of interpretation applicable to contracts, couched in plain and unambiguous language and terms. This provision is not a rule of evidence, announces no rule of evidence, but is prohibitory of all rules of evidence contrary to its terms, as well as all matters of procedure violative of its requirements. If this provision of the Bill of Rights means anything, and Art. 25, supra, Code Crim. Proc., is a valid law, then the "testimony" taken on an examining trial cannot be used as original evidence on a final trial of the case, or any subsequent trial thereof. The witnesses against him must confront the accused, or, in a proper case, the "depositions" authorized by the statute can be used; and neither the Constitution nor the statute authorizes the admission of examining trial evidence, but both prohibit its introduction. If such evidence can be admitted at all, under any rule, it would constitute an excuse for not confronting the accused with the witnesses against him. Inability of the State to comply with the law can constitute no excuse for its violation, much less would it authorize an overturning of the constitutional inhibitions. Those cases which hold this character of evidence admissible on the ground that the rules pertaining to the introduction of testimony in civil and criminal cases are the same, in my opinion, are not correct. The Constitution does not require the production of witnesses in open court, in civil suits, as it does in criminal prosecutions, and the statute excludes rules of evidence in civil cases, if in conflict with those prescribed by the Code of Criminal Procedure for the trial of criminal actions. Code Crim. Proc., Art. 726; People v. Sligh, supra.

In view of the fact that the reasons for confronting the accused with 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.