Full opinion text
HARPER, J. Appellant was indicted by the grand jury of Galveston county charged with murder. He was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for five years. This is the second appeal in this case, the report of the former trial being found in 54 Tex. Cr. R. 21, 111 S. W. 741. Since the former trial of this case one of the witnesses for the state, L. Rodriguez, had died, and another, R. Mori, had returned to Italy, and is domiciled in that country. Appellant complains that the state was permitted to reproduce the testimony of these two witnesses given at the former trial, alleging that under the Constitution he is entitled to be “confronted by the witnesses against him.” He also complains that the state was permitted to introduce his testimony on the first trial of the case, saying, as he did not testify on this trial, it should not have been permitted. These are all the grounds relied on for a reversal of the judgment in the motion for a new trial. The third ground, that the testimony of defendant on the first trial could not be introduced in evidence against him on a subsequent trial, has been decided by this court adversely to appellant’s contention. Smith v. State, 75 S. W. 298; Preston v. State, 41 Tex. Cr. R. 300, 53 S. W. 127, 881; Collins v. State, 39 Tex. Cr. R. 441, 46 S. W. 933, and authorities cited in these eases. The other two grounds may be considered jointly as they present the same question, Can the testimony of a witness adduced on one trial be reproduced against a defendant on a second or subsequent trial when the witness has since the first trial died or gone beyond the jurisdiction of the court? The questions here presented have been the cause of much controversy in this court since the decision in the case of Cline v. State, 36 Tex. Cr. R. 320, 36 S. W. 1099, 37 S. W. 722, 61 Am. St. Rep. 850. The Cline Case was overruled in the case of Porch v. State, 51 Tex. Cr. R. 8, 99 S. W. 1122, and recently the Porch Case has been overruled and the rule announced in the Cline Case held to be correct in the case of Kemper v. State, 138 S. W. 1025. The writer did not sit in the Kemper Case, having been of counsel in the trial court, and the opinion is by Judge Scott, who served as special judge. We agree with the contention of Judge Scott in that case that the Constitution is the highest law in the land, and is binding upon all courts and legislative bodies, neither having the right to make any innovation upon that instrument. However, we hold it is the duty of the courts to construe the Constitution, and in doing so, should a different construction be placed thereon than that announced in the Kemper Case, it would not be an innovation on the Constitution, but only a correct enunciation of the language of that instrument and making it speak what it was intended it should speak. The Constitution of 1876, in the Bill of Rights, provides in section 10 that the accused “shall be confronted by the witnesses against him.” The Constitution of the Republic of Texas in 1836, when after the battle of San Jacinto and defeat of Santa Anna a Republican form of government was here instituted, this exact language was used. Again in 1845, when, after knocking at the door, Texas was admitted into the sisterhood of states, this same language was brought forward in the organic law; and was also reiterated in the Constitutions adopted in 1861, 1866, and 1869. The language has been the same in each of these instruments. The sixth amendment to the Constitution of the United States provides that the accused shall have the right to be “confronted with the witnesses against him,” and this same language is written into the supreme law of almost every state in the Union, and was embodied in the Constitution of the United States, and the different states of the Union prior to the date of the organization of the Republic of Texas, and at the time of its admission into the Union. Consequently Texas but borrowed or copied this provision from the Constitutions and laws of the different governments of the English-speaking people. Owing to the different constructions placed on this provision of the Bill of Rights by this court at different periods of its existence, we have given the question more than usual consideration, and have searched, not only the decisions of our own state but those of the courts of the United States and of the courts of last resort of the different states, and have also burrowed into the rule of construction and the construction given this language by the courts of England prior to the Declaration of Independence by the colonies. It is recognized by all courts that this provision was a part and parcel of the English law at the time of the revolt of the colonies and the establishment of this Union, and we, in adopting this clause, but reiterated what was the law in the colonies prior to our independence. So, when Texas adopted this clause, it was no announcement of a! new right to a person accused of crime, but was simply a preservation of a right- that was a part of the law of England, of this Union, and -of almost every state therein, and in arriving at a proper construction thereof, and to give the language its proper meaning, we must look to the decisions of England, of the United States, and the courts •of the different states in the Union, for of •such of them as were in existence at the birth of the Texas Republic they had long had this principle embedded in their system of government, and it is 'a well-known rule of law that, when we adopt a phrase or borrow a provision from the Constitution or laws of another state or country, we adopt that clause with the construction placed thereon by the courts of that state or country. In speaking of the Constitution of the United States and the amendments thereto, the Supreme Court in Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819, says: “As the object of the first eight amendments to the Constitution was to incorporate into the fundamental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence Of the mother country, the construction given to those principles by the English courts is cogent evidence of what they were designed to secure, and of the limitations that should be put upon them. This is but another application of the familiar rule that, where one state adopts the laws of another, it is also presumed to adopt the known and settled construction of those laws by the courts of the state from which they are taken.” In 1831, prior to the time Texas was admitted into the Union, the United States Supreme Court had held: “The statutes passed in England before the emigration of our ancestors, which were in amendment of the law, and are applicable to our situation, constitute part of our common law.” Patterson v. Winne, 5 Pet. 233, 8 L. Ed. 108; Tayloe v. Thomson, 5 Pet. 358, 8 L. Ed. 154. And in the case of Cathcart v. Robinson, 30 U. S. 264, 8 L. Ed. 120, it is held: “The construction which British statutes had received in England at the time of their adoption in this country, indeed to the time of the separation of this country from the British empire, may very properly be considered as accompanying the statutes themselves, and forming án integral part thereof.” These opinions and enunciations of the law were written by such eminent jurists as Chief Justice Marshall and Mr. Justice Story. In a later case — McDonald v. Hovey, 110 U. S. 619, 4 Sup. Ct. 142, 28 L. Ed. 269 — Mr. Justice Bradley, speaking for the court, says: “It is a received canon of construction acquiesced in by this court that, where English statutes have been adopted into our own legislation, the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts or has been received with all the weight of authority.” Mr. Cooley in his work on Constitutional Limitations says: “The colonists also had Legislatures of their own, by which laws had been passed which were in force at the time of their separation, and which remained unaffected thereby. When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England or of Great Britain amendatory of the common law, which they had in like manner adopted; and, third, of the colonial statutes. The first and second constituted the American common law.” And Mr. Story, Mr. Black, and others lay down the rule of construction to be: “Where a clause or provision in a Constitution, which has received a settled judicial construction, is adopted in the same words by the framers of another Constitution, it will be presumed that the construction thereof was likewise adopted.” 6 Am. & Eng. Ency. of Law, p. 277, lays down the rule: “It may be stated as a general rule that English statutes passed before the emigration of our ancestors in aid or amendment of the common law applicable to our condition, and not repugnant to our institutions and form of government, constitute a part of our common law” — citing the following authorities: Patterson v. Winn, 5 Pet. 240, 8 L. Ed. 108; Van Ness v. Pacard, 2 Pet. 144, 7 L. Ed. 374; Ex Parte Watkins, 7 Pet. 568, 8 L. Ed. 786; Carter v. Balfour, 19 Ala. 814; Horton v. Sledge, 29 Ala. 478; Matthews v. Ansley, 31 Ala. 20; Pierson v. State, 12 Ala. 149; Norris v. Harris, 15 Cal. 226; State v. Cummings, 33 Conn. 260, 89 Am. Dec. 208; Hunt v. Chicago, etc., Ry. Co., 20 Ill. App. 289; Swift v. Tousey, 5 Ind. 196; State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534; Baker v. Crandall, 78 Mo. 584, 47 Am. Rep. 126; Hamilton v. Kneeland, 1 Nev. 40; Ex parte Blanchard, 9 Nev. 101; Evans v. Cook, 11 Nev. 69; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Lansing v. Stone, 37 Barb. (N. Y.) 15; Van Rensselaer v. Hays, 19 N. Y. 68, 75 Am. Dec. 278; Miller v. Miller, 18 Hun (N. Y.) 512; Pemble v. Clifford, 2 McCord (S. C.) 31; Simpson v. State, 5 Yerg. (Tenn.) 356; Porter v. State, Mart. & Y. (Tenn.) 226; Commonwealth v. Lodge, 43 Va. 580; Coburn v. Harvey, 18 Wis. 148. Thus we see that, to arrive at a proper •construction of this language of our Constitution, we should look to the period when the ■colonies were a part of the English domain •and prior to our Declaration of Independence, for it follows, whatever construction had been placed on this language, the right •of the “accused to be confronted by the witnesses against him,” by the courts of England prior to that date, is the proper and only legitimate construction for the courts of ■the United States to place thereon when it ■was incorporated into our law. By examination of such books as we have at our command treating of that period, we find that in "the fifteenth century the rule was “that the -examination of an informer taken upon oath, and subscribed by him either before a coroner upon an inquisition of death in -pursuance of 1 and 2 Philip & Mary, c. 13, or before justices of peace in pursuance of 1 and '2 Philip & Mary, c. 13, and 2 and 3 Philip & Mary, c. 10, upon a bailment or commitment for any felony, may be given in evidence at the trial of such inquisition, or of an indictment for the same felony, if it be made out by oath to the satisfaction of the court that such informer is dead, or unable to travel, •or kept away by the means or procurement •of the prisoner, and that the examination offered in evidence is the very same that was sworn before the coroner or justice without .any alteration whatever.” See Hawkins’ Pleas of the Crown, p. 592. It is true that subsequent to this time during the reigns of ■Queen Elizabeth and King James the First ■in the trials of Sir Walter Raleigh and oth-ers it was held that such testimony was admissible, even though taken in the absence ■of the accused. However, Hawkins, in his Pleas of the Crown, lays down the rule in 'England that the testimony is admissible only if taken in the presence of the prisoner and the witness has since died or from sickness or other cause cannot be brought into •court, and, in this connection, he also says the deposition extrajudicially taken (when the accused is not present) may in the particular case of murder be read as the dying -declarations of the deceased if in extremis or in such state of mortality as to render the apprehension of approaching dissolution probable. Sir Matthew Hale, in his 2 Pleas of the Crown, p. 283, says: “By the statute of 1 and 2 Philip & Mary, and 2 and 3 Philip & Mary, justices of the peace and coroners have power to take examinations of the party accused and informations of the accusers and witnesses, and are to put the same in writing, and are to certify the same to the next gaol delivery. These examinations and informations thus taken and reduced may be read in evidence against the prisoner if the informer be dead, or so sick that he is not able to travel.” Roscoe in his work on Criminal Evidence (page 58) says: “Depositions are admissible as substantive evidence at common law, should the witness be either dead, or be in such state as never to be likely to be able to attend assizes, or if the witness be kept away by the practices of the prisoner.” Mr. Starkie, in his work on Evidence (page 409), says: “Depositions of witnesses, although made under the sanction of an oath, are not in general evidence as to the facts which they contain, unless the party to be affected by them has cross-examined the deponents, or has been legally called upon, and had the opportunity to do so; for otherwise one of the great and ordinary tests of truth would be wanting. Evidence of this kind is weak and is not admissible, unless it be the best evidence which can be procured, and also unless the party against whom it is offered, or the party under whom he claims, has had the power of cross-examination, and has been legally called on to examine, which must be proved by showing that he was a party to the proceeding, that it was a judicial proceeding, and that he did cross-examine, or might have done so. There are some exceptions where the proceeding is of a public nature, or the evidence falls within the general scope of the rule as to reputation. It is an incontrovertible rule that, when the witness himself may be produced, his deposition cannot be read, for it is not the best evidence. But the deposition of a witness may be read, not only where it appears that the witness is actually dead, but in all cases where he is dead for all purposes of evidence, as where diligent search has been made for him, and he cannot be found, where he resides in a place beyond the jurisdiction of the court, or where he has become lunatic or attainted.” Mr. Best, in his work on Evidence (page 843), says: “On a second trial of a cause between the same parties, the evidence of a witness examined at a former trial, and since deceased, is receivable, and may be proved by the testimony of a witness who heard it, or by notes made at the time” —citing 1 Phill. Ev. 306. These were all eminent lawyers of their day and time and writers of ability and betoken a familiarity with the English law. Sir Matthew Hale was at one time Chief Justice of the King’s Bench, and his work was written in the sixteenth century, while that of William Hawkins was written in the seventeenth century, about 50 years prior to the Declaration of Independence by the colonies. In these various books many authorities are cited, decisions which were rendered prior to the war between this country and England, and while the colonies were still a part of the English possessions; it being held in Rex v. Payne, 1 Ld. Raym. 729: “Information of a person since dead may be read on indictment for felony.” In 9 Mod. 330: “Depositions of witnesses who are abroad received in evidence.” 5 Mod. 164: “The examination of witnesses before justice of the peace may be given in evidence at a trial.” 3 Salk. 101: “Depositions taken before coroner may be given in evidence upon an indictment of murder, if the witnesses are dead.” Many other English authorities might be cited, but we deem it unnecessary. One of the most noted American authors, Mr. G-reenleaf, in his work on Evidence, lays down the rule: “Testimony of a witness given on a former trial, where the parties had an opportunity to examine him, may be received if the witness is dead, or is out of the. jurisdiction, or insane and unable to testify, or if he has been summoned and is kept away by the adverse party.” 1 Greenleaf, Ev. § 163, and cases cited. Hughes, in his work on Criminal Daw, says (section 3014): “If a witness testified at a former trial and was then cross-examined, his testimony so given at such former trial may be introduced at a subsequent or second trial, if he has since died.” Mr. Jones, in his work on Evidence, lays down the rule that evidence given at a former trial may be admitted in four instances: First, where the witness is dead; second, where he is insane or mentally incapacitated; third, where he is beyond the seas; and, fourth, where he has been kept away by the connivance of the opposite party. Rice, in his work on Evidence, says: “The evidence of a witness since deceased on a former trial of the same case may be proven on a subsequent trial. Such proof does not violate the defendant’s constitutional right to meet the witness face to face. In criminal prosecutions in this country depositions are rarely employed, but, where the accused has had an opportunity to cross-examine the witness whose depositions it is sought to introduce, he has no reason to complain that the constitutional guaranty has been violated. Such instances arise where in a former trial the accused was confronted with the witness, or on preliminary hearing before a coroner or committing magistrate. And it seems that notes taken on such occasions are admissible in evidence where the witness hag since died or is beyond the jurisdiction of the court.” Wharton, in his work on the Law of Evidence, in sections 177 and 178, says, where a witness is dead or beyond the jurisdiction of the court, the evidence Is admissible, and that the general rule is thus given by Mansfield, G. J.: “Where a witness since dead, what he has sworn upon a trial between the same parties may be given in evidence, either from the judge’s notes, or from the notes that may have been taken by any other person who will swear to their accuracy, or the former evidence may be proved by any person who will swear from his memory to its having been given.” Mayor of Doncaster v. Day, 3 Taunt. 262. In fact, every text-writer of any note, or that has been recognized by the courts of last resort, so far as we have been able to ascertain, adheres to that line of decisions which holds that the testimony of a deceased witness or a witness beyond the jurisdiction of the court may be reproduced where the accused has once been confronted by the witness. However, we did not desist after reading ' the text-books, but have searched the reports of the decisions of the United States courts, and the courts of the various states in the Union, and find them practically of one opinion — that the proper construction of this clause of the Constitution means only that the accused has the right to be confronted with the witness once that he may cross-examine him. And the frámers of the Texas Constitution could certainly have had no intention of placing a different construction on this language than that which had been placed on it at the time of its adoption by this state. To place the construction on this language that is placed on it in the Cline Case and the Kemper Case, supra, would put this court in conflict with all the great lawyers who have presided in the courts of last resort in our sister states. To show how unanimous the courts of the different states have been in adopting the construction placed on this language by England and the earlier law writers, we will quote excerpts from a number of the states. Alabama holds (Marler v. State, 67 Ala. 55, 42 Am. Rep. 95): “The main question presented for our consideration in this case is the admissibility of the witness Roberts’ testimony as to what one Redman had previously sworn on the-preliminary investigation before the committing magistrate. Redman had there testified for the state, under the sanction of an oath, subject to a full cross-examination by the defendant. Before the trial in the circuit court, in which he was jointly indicted with the appellant Marler, he became insane, and was so pronounced by the verdict of a jury and the judgment of the court, after which a severance of the case was granted. The court admitted the substance of Red-man’s testimony as given before the magistrate to be proved, to which an exception was taken, and this ruling of the circuit judge is assigned as error. The general rules of evidence at common law, subject to few exceptions, are the same in civil and criminal eases, being more liberal at least in some instances in the latter than the former. Dying declarations, for example, are never admissible in civil cases, but only in charges of homicide. It is manifest, indeed, that the danger of perjury is not usually so great in matters of crime, which government and society are chiefly interested in punishing, as in those eases involving large pecuniary interests, as the experience of mankind has taught in all countries where nuncupative wills have been allowed. 2 Best, Ev. § 505. “It is now established beyond disputation that where a witness has testified under oath in a judicial proceeding, in which an adverse litigant was a party, and was subject to cross-examination, the testimony so given is admissible after the decease of the witness in any subsequent suit between the same parties. 1 Green. Ev. 163; Best, Ev. § 496; 1 Phill. Ev. (C. H. & E.) 389, note; 2 Russ. Cr. 683. And in Plorton v. State, 53 Ala. 488, this principle was declared ‘applicable alike to civil and criminal cases’ and this court on the strength of it sustained the admission of the testimony of a deceased witness taken down by a committing magistrate on preliminary investigation when introduced on trial under indictment in the circuit court. Such testimony is not liable to the objections ordinarily urged against hearsay or derivative evidence, for it was delivered under the sanction of an oath, and the adverse party has had or might have had the full benefit of a cross-examination. 1 Stark. Ev. 42. * * * ‘The admission of such evidence,’ says Mr. Wharton, ‘is based upon the fact that the party against whom the evidence is offered having had the power to cross-examine at the former trial, and the parties and issues being the same, the second suit is virtually a continuation of the first.’ Law of Ev. § 177. We are of opinion that the reason of the rule applies with unanswerable force to all cases where the witness has become insane. As said by Lord Kenyon in Rex v. Eriswell, 3 T. R. 707, he is to all intents and purposes to be considered ‘in the same state as if he were dead.’ And though the question was left undecided in that case, Buller, J., concurring with Lord Kenyon, regarded the party ‘as dead; he being in such a state as to render it impossible to examine him.’ Id. 391. “A case, however, clearly in point, is that of Regina v. Marshall, Car. & Mar. 147. It was there held that, where a witness was actually insane at the time of the trial on indictment, his deposition taken before the committing magistrate could be read the same as if he were dead, although the insanity be but temporary; "but not where the witness was suffering from delirium through injuries produced by a blow on the head, if his physician was of opinion he would recover. In Rex v. Hogg, 6 C. & P. 176, where a prosecutor in a case of a felony was bedridden, and there was no probability that she would ever be able to leave her home, her deposition taken before the magistrate was held admissible in the same manner as if she were dead. In the Earl of Strafford’s Case it was adjudged ‘that where witnesses could not be procured to testify viva voce by reason of sickness, etc., then their depositions might be read for or against the prisoner, but not when they might have been produced in person.’ 2 Hawk. Pl. Cr. ch. 46, § 20. “There seems to be no difference of opinion on this question among the best text-writers. Mr. Greenleaf asserts that such evidence is admissible, ‘if the witness, though not dead, is out of the jurisdiction, or cannot be found after diligent search, or is insane, or sick and unable to testify, or has been summoned, but appears to have been kept away by the adverse party.’ Mr. Wharton takes the same view, thinking the rule applies ‘when, from the nature of the illness or infirmity, no reasonable hope remains that the witness will be able to appear in court on any future occasion.’ And he adds: ‘Mental incapacity, from whatever cause, is a sufficient inducement. It has been said that, if the insanity is temporary, the true course is to continue the cause until the witness recovers; but the contrary view has been expressed by an English court, and there are some classes of cases (e. g. criminal of high grade) in which such a continuance cannot in law be granted, and others in which the inconveniences would be so great as to amount to-an obstruction of justice.’ The annotator of Phillips on Evidence approves the application of the principle in question to cases where the witness has become insane, and others of like character, and arrives at the conclusion that ‘those (eases) which have come nearest to the liberal principle on which secondary evidence is generally received are less anomalous, and therefore more scientific than the-narrower decisions.’ 1 Phill. Ev. (C. & H. and E.’s notes) 393. Mr. Justice Oheves in Wells v. Drayton, 1 Nott & McC. (S. C.) 409 [9 Am. Dec. 718], says: ‘The books enumerate four cases only in which the testimony of a witness who has been examined in a former trial between the same parties and where the point in issue is the same may be given in evidence on a second trial from the mouths of other witnesses who heard him give evidence: (1) When the witness is dead; (2) where he is insane; (3) where he is beyond seas; (4) where the court was satisfied that the witness had been kept away by the contrivance of the opposite party.’, “In Emig v. Diehl, 76 Pa. 359, the rule as enunciated by Mr. Greenleaf is indorsed by Sharswood, J., and was applied to one in such a state of senility as to have lost his memory, all of the seven judges concurring on tills particular point. In Rogers v. Raborg, 2 Gill. & J. 54, the Supreme Court of Maryland admitted the deposition of a paralytic, who, though regularly summoned as a witness, was unable to leave his home or speak so as to be understood. The court declared the evidence admissible on the ground of necessity; the witness being the same as if he were dead. The courts of Louisiana have gone so far as to admit such testimony in the case of the temporary sickness of a witness. In Miller v. Russell, 7 Mart. (N. S.) 266, where a witness had been examined and notes of his testimony carefully taken, the court said: ‘To have examined him again, laboring under disease, would have afforded no better evidence perhaps not so clear, as that which had been obtained from him on the former trial.’ But as Lord Ellenborough suggested in Harrison v. Blades, 3 Camp. 458, in such cases, it should appear that the sickness is of a character imposing permanent inability, as otherwise there would be very many sudden indispositions and recoveries. In Kendrick v. State, 10 Humph. 479, the Supreme Court of Tennessee indorsed the principle admitting the testimony of a deceased witness given on a former trial, and declared the maintenance of the rule in criminal cases to be of far greater importance to the lives and liberty of defendants than of mere justice to the state. This court in Long v. Davis, 18 Ala. 801, admitted the deposition of a witness taken in a former suit, after his removal from the state, in a subsequent suit between the parties. Childon, J., said: ‘We think the more liberal doctrine which allows a permanent absence from the jurisdiction as an excuse is more consonant with the legal analogies, and is sustained by the preponderance of authority.’ “It has been held by some of the courts, including those of New York and Virginia, that no evidence of this character, save that only of deceased witnesses, is admissible in criminal cases, but this view, we believe, is opposed to both the weight of reason and the preponderance of authority. Whether originating in necessity or based on expediency, the purpose of the rule is to prevent the defeat of justice; and, tested by this principle, there is no real or practical difference between the death of the mind and the death of the body. If a man’s reason be utterly dethroned, it were all one in the eye of the law, so far as regards his capacity to testify, that his body were in the grave. It is very clear that such evidence is no more a violation of the constitutional right of every citizen to be confronted by his witnesses than the admission of dying declarations, and, in fact, much less so, as the defendant has once exercised this right, and had an opportunity to elicit the truth by cross-examination. Kendrick v. State, 10 Humph. (Tenn.) 479; Commonwealth v. Richards, 18 Pick. (Mass.) 437, 29 Am. Dec. 608; Green v. State (Dec. T. 1880), 66 Ala. 40, 41 Am. Rep. 744.” See, also, Roberts v. State, 68 Ala. 515; Lucas v. State, 96 Ala. 51, 11 South. 216; Lowe v. State, 86 Ala. 52, 5 South. 435; Perry v. State, 87 Ala. 30, 6 South. 425; Pruitt v. State, 92 Ala. 41, 9 South. 406; South v. State, 86 Ala. 617, 6 South. 52; Davis v. State, 17 Ala. 354. Arkansas holds (Pope v. State, 22 Ark. 372): The testimony of a deceased witness examined on a former trial on a criminal charge may be proved on a second trial for the same offense. And in Hurley v. State, 29 Ark. 17, it is said the same rule applies where the witness is beyond the jurisdiction of the court. See, also, Shackelford v. State, 33 Ark. 539; Sneed v. State, 47 Ark. 180, 1 S. W. 68. California holds (People v. Plyler, 126 Cal. 379, 58 Pac. 904): The statute allowing the reporter’s notes of the testimony of a witness taken at the preliminary examination to be introduced at the trial upon its being satisfactorily shown to the court that the witness is dead or insane or cannot after due diligence be found in the state is constitutional and valid. See, also, People v. Oiler, 66 Cal. 101, 4 Pac. 1066; People v. Chin Hane, 108 Cal. 597, 41 Pac. 697; People v. Sierp, 116 Cal. 250, 48 Pac. 88; People v. Cady, 117 Cal. 10, 48 Pac. 908; People v. Devine, 46 Cal. 46. Georgia: The case of Pittman v. State, 92 Ga. 480, 17 S. E. 856, is cited in the Kemper Case as supporting the doctrine that such evidence is inadmissible, but it does not so hold. That case holds that, if the witness is dead, the testimony may be reproduced on a second trial, but does say that it cannot be done if the witness is still living, and in the case of Robinson v. State, 68 Ga. 833, it is held: Where a witness who testified at a committing trial subsequently died, on the final trial of the same case in the superior court his testimony so given was admissible, and cites Gavan v. Ellsworth, 45 Ga. 283; Eagle & Phenix Mfg. Co. v. Welch, 61 Ga. 448; Puryear v. State, 63 Ga. 692; Mitchell v. State, 71 Ga. 128. Idaho holds (Territory v. Evans, 2 Idaho [Hash.] 651, 23 Pac. 232, 7 L. R. A. 646): Depositions taken in the presence of the accused may be used on trial when, on account of death or other good cause, the presence of the witness cannot be had, nor is it in violation of the sixth amendment to the Constitution of the United States. Illinois holds (Barnett v. People, 54 Ill. 330): “It is next urged that the court below erred in admitting evidence of what Hardy Setts swore at the examination of the prisoner before the justice of the peace. Hardy Setts was dead when this case was tried in the court below, but the witness heard and remembered the testimony. The rule as to the admissibility of evidence is the same in civil and criminal trials, except in criminal trials dying declarations may be received. Nor does the supposed constitutional objec* tion arise to such evidence, as the witness was confronted with the accused (at the examining trial), and he was afforded an opportunity of cross-examination in the examining court” — citing authorities. Indiana holds (Sage v. State, 127 Ind. 15, 26 N. E. 667): “No error was committed in permitting the official stenographer to read from his report of the testimony of a witness given at a former trial who has since died. That the testimony of a deceased witness may be repeated at a subsequent trial is well settled. It is also settled that the reproduction of the testimony of a witness, who was examined at a former trial, is not a violation of the fundamental rule that the deceased has a right to be brought face to face with the witness against him” — citing authorities. Iowa holds (State v. Fitzgerald, 63 Iowa, 268, 19 N. W. 202): “It is further claimed that the evidence was incompetent under section 10 of article 1 of the Constitution, which provides that in all criminal prosecutions the accused shall have a right ‘to be confronted by the witnesses against him.’ This constitutional provision is common to most, if not all, the states of the Union, and it has been quite uniformly held that it is not violated by the admission of testimony in a criminal case to prove what a deceased witness testified to at the preliminary examination of the accused before a justice of the peace or other examining magistrate” — citing authorities. Kansas holds (State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257): In this cause the examination was held when the charge against accused was assault to murder. The witness subsequently died. The accused declined to attend the examination, but was represented by counsel, and the court holds the testimony so taken was admissible. See opinion for authorities cited. Kentucky holds (O’Brian v. Commonwealth, 69 Ky. 571): The rule seems to be that, where the witness is dead, his evidence judicially taken in one proceeding may be used in another proceeding between the same parties; the party against whom the evidence is offered having had an opportunity to cross-examine in the former proceeding. And it is said the same principle applies where there are two trials. Thus, if a witness has died between the first and second trials, it may on the second trial be proved what he swore on the first, a doctrine which prevails in criminal cases as well as in civil, and in general in the United States as well as in England. Louisiana holds (State v. McNeil, 33 La. Ann. 1332): “The law in England and this -country relating to depositions taken before coroners as to the manner of taking and the -effect given them, and the purposes for which they could be used or applied at and before the time mentioned (1805), is embraced and contained in the act known as 1 & 2 Phil. & M. c. 13, § 5, A. D. 1554. This statute remained in full force in England until its provisions were to some extent modified, first by the statute 7 Geo. IV, e. 64, and aft-erwards by the 11 & 12 Vict. c. 42, passed long subsequent to 1805. Archbold, commenting on these statutes, says: ‘Although the former statutes (Phil. & M.) did not contain any express enactment like the above (11 & 12 Viet.) it was yet determined in many eases and recognized as a rule of law that in all cases of felony under these statutes, where they were taken in presence of the accused, and he had an opportunity of cross-examining them, the deposition of any such witness might be read in evidence against the accused on trial in case the person who made the deposition were dead.’ Arehbold, PI. & Ev. (13 Lond. Ed.) 213, 214. * * * We read from Bishop on same subject: ‘How, in United States? Such being the English law, and the two statutes of Philip & Mary being common law with us, the practitioner, by consulting the statute book of his own state, may readily determine how the matter stands there. The principle on which these depositions are, under statutes like those which prevailed in England down to a recent period, admissible, is that, being regularly taken under provisions of law, the common law accepts them when it is impossible the personal presence of the witness can be had.’ 1 Bish. Grim. Pro. 1096; Rex v. Smith, 2 Starkie, 208, 211.” Missouri holds (State v. McO’Blenis, 24 Mo. 402, 69 Am. Dec. 435): “A deposition of a witness taken upon the preliminary examination before a committing magistrate in the presence of the accused may be received in evidence on the trial upon proof of death of such witness. The provision of the Constitution of this state declaring ‘that in all criminal prosecutions the accused has the right to meet the witnesses against him face to face’ does not render such evidence inadmissible.” State v. Houser, 26 Mo. 431; State v. Able, 65 Mo. 357; State v. Elliott, 90 Mo. 350, 2 S. W. 411. Michigan holds (People v. Dowdigan, 67 Mich. 95, 38 N. W. 920): The testimony of a witness taken on a preliminary examination in a criminal case is admissible in evidence on the trial on proof of the death of the witness, and does not violate any constitutional right. Minnesota holds (State v. George, 60 Minn. 506, 63 N. W. 100): Where a witness against the defendant on the trial of a criminal case dies before a subsequent trial, his testimony on the former trial may be given in evidence on the subsequent trial. The same rule should be applied when the evidence was given on the preliminary examination of the defendant and the witness dies before the trial. Massachusetts holds (Commonwealth v. Richards, 18 Pick. 434, 29 Am. Dec. 608): The twelfth article of the Declaration of Rights, which provides that in criminal cases the accused shall have the right “to meet the witnesses against him face to face” is not violated by the admission of testimony in a criminal trial before a jury to prove what a deceased witness testified at the preliminary examination of the accused before a justice of the peace. Mississippi holds (Owens v. State, 63 Miss. 452)' “It is well established that the testimony of a deceased witness given under oath in a judicial proceeding between the same parties on the same issue is competent, both in civil and criminal eases, for either party, when the party against whom the testimony is offered had opportunity to cross-examine the witness on the former proceeding.” This case is cited in the Kemper Case as supporting that decision, but it in fact holds the exact reverse, and holds the testimony is admissible when the witness is dead, but says, if the witness is living, he must be produced.” Montana holds (State v. Byers, 16 Mont. 565, 41 Pac. 708): A transcript of the stenographer’s notes of the testimony which a witness since deceased gave at a preliminary examination, supported by the testimony of the stenographer as to its correctness, is admissible against the defendant on the trial of the case, where the defendant had cross-examined the witness at the preliminary examination. Nebraska holds (Hair v. State, 16 Neb. 604, 21 N. W. 464): Where a deceased witness testified upon a former trial of the same party for the same offense, being brought “face to face” with the accused and cross-examined by him, it is competent, upon a subsequent trial, to prove the testimony of such deceased witness, and such proof does not violate the provisions of the Constitution of the state, which gives the witness the right to “meet the witnesses against him face to face.” Nevada holds (State v. Johnson, 12 Nev. 123): The objection made was that the testimony was inadmissible, and that defendant was entitled to be confronted by the witness whose testimony was given against him. The court holds, whatever differences of opinion may have in former times existed upon this question, the rule is now too well settled to require any discussion that the testimony of a deceased witness given under oath in a proceeding authorized by law, where the opposite party had the opportunity of a cross-examination, is admissible evidence against such party at a subsequent trial. New York holds (People v. Elliott, 172 N. Y. 146, 64 N. E. 838, 60 L. R. A. 318): “Section 8 of the Code of Criminal Procedure provides ‘that the defendant shall be confronted with the witnesses against him in the presence of the court’ This is merely a re-enactment of the Bill of Rights, which provides, ip. section 14, that the accused shall be confronted with the witnesses against him. * * * It is manifest from the authorities permitting the deposition or evidence of a deceased witness to be read upon a trial of the accused that it has not been deemed essential that he should be confronted by the witnesses against him upon the trial itself; but if the evidence be taken in the course of the proceeding in his presence, and with the right and privilege of cross-examination secured to him, that will be sufficient to allow the deposition to be read in case of the decease of the witness.” North Carolina holds (State v. King, 86 N. C. 604): Such testimony has been declared competent in this state when the witness is dead, or after search cannot be found, and perhaps the rule would have been extended to the case of a nonresident who was absent, beyond the jurisdiction of the court, as stated by Mr. Wharton in his Law of Evidence (section 178). Oregon holds (State v. Walton, 53 Or. 562, 99 Pac. 431, 101 Pac. 389, 102 Pac. 173): The Constitution provides that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face, and it is contended that the admission of the testimony given on a former trial of the accused was an infringement of this right. The Constitution of the United States and of most states of the Union contains similar provisions, and the general, if not the universal, holding of the courts is to secure to an accused the right of cross-examination, and, if he has once enjoyed that right, no constitutional privilege is violated by the admission of the testimony of such witness who is dead or absent from the state at a subsequent trial. Ohio holds (Summons v. State, 5 Ohio St. 340): “(1) It is claimed that the admission of testimony against the accused in a criminal case to prove the statements given as evidence on a former trial of the cause by a witness since deceased contravenes the provision of the tenth section of the Bill of Rights, which provides that ‘in any trial, in any court, the party accused shall be allowed (among other things) to meet the witnesses face to face.’ This, like numerous other provisions in the Bill of Rights, is a constitutional guaranty of one of the great fundamental principles well established, and long recognized at common law, both in England and in this country. The scope and operation of it are clearly defined and well understood in the common-law recognition of it; and the assertion of it in the fundamental law of the state was designed neither to enlarge nor curtail it in its operation, but to. give it permanency, and secure it against the power of change or innovation. “The object of this provision manifestly is to exclude testimony by depositions by requiring it to be given orally in tbe presence of the accused on the trial. The admission of testimony by depositions against the accused in a criminal cause would often afford the prosecutor great advantage over him, as well as furnish, at times, opportunities for abuses beyond the reach of detection by the defendant. Deprived of this right, the accused would often be without the opportunity of cross-examination without the means of seeing, hearing, or knowing the persons who testify against him, and without the advantage of an oral examination of the witnesses before the jury which is to decide upon his case. But, important as this right is, as established, at common law, and secured by the Constitution, it has application to the matter of the personal presence of the witness on the trial, and not to the subject-matter or competency of the testimony to be given. The requirement that the accused shall be confronted on his trial by the witness against him has sole reference to the personal presence of the witnesses, and in no wise affects the question of the competency of the testimony to which he may depose. When the accused has been allowed to confront or meet face to face all the witnesses called to testify against him on the trial, the constitutional requirement has been complied with. This was done on the trial of the case before us in the district court. Mary Clinch was not a witness on that trial. Being dead, it was an impossibility that she could be a witness on that trial. Logan, however, who was a witness, and did testify, did meet the accused face to face on the trial. The provision in the Bill of Rights was complied with. And the true question is, not whether the constitutional right of the accused was violated, but whether the testimony given by Logan on the trial was competent or not. “There are several well-established exceptions to the rule that hearsay is not evidence. But, if the right secured by the Bill of Rights applies to the subject matter of the evidence, instead of the witness, it would exclude in criminal cases all narration of statements or declarations made by other persons heretofore received as competent evidence. The construction insisted on for the plaintiff in error treats the person whose statements or declarations are narrated as the witness rather than the person who testifies on the trial. This construction would exclude all declarations in articulo mortis by confounding the identity of the dying man with that of the witness called upon in court to testify to such declarations. Precisely the same objection would exclude all declarations by coconspirators, statements made in the presence of the accused in a criminal case, and not denied by him; and the statements by the prosecutrix in prosecutions for rape, made immediately after the commission of the offense. And, by a parity of reasoning, the admissions or confessions of the accused, and, in prosecutions for perjury, the very testimony of the accused on which the perjury may be assigned, would be excluded, by the provision in the Bill of Rights forbidding that any person shall be compelled in any criminal case to be a witness against himself. The constitutional objection has been on several occasions urged against the admissibility of dying declarations. And there would seem to be even more reason for the exclusion of this than evidence of the statements of a deceased witness on a former trial; for the latter would seem to be now confined to cases where opportunity for cross-examination had been af-. forded, and therefore to cases where the accused had been confronted by the deceased witness when the testimony was given on the former trial. But the competency of the testimony of dying declarations in cases of homicide appears to have been so well settled by adjudications that it will scarcely be questioned hereafter. Hill v. Commonwealth, 42 Va. 594; Campbell v. State, 11 Ga. 353; Woodside v. State, 2 How. (Miss.) 655; Penn v. Stoops, Add. [Pa.] 381; State v. Arnold, 35 N. C. 184; McLean v. State, 16 Ala. 672; State v. Cameron, 2 Ohand. (Wis.) 172; Green v. State, 13 Mo. 382; State v. Thawley, 4 Har. (Del.) 562; Commonwealth v. McPike, 3 Cush. [Mass.] 181 [50 Am. Dec. 727]; Montgomery v. State, 11 Ohio, 424. “Testimony of the statements of deceased witnesses given on a former trial between the same parties touching the same subject-matter has been admitted among the exceptions to the rule excluding hearsay evidence from a very early period, and has been sanctioned by an unbroken current of decisions, both in England and in this country. It has been received ex necessitate, and under proper precaution, as secondary evidence, being the best evidence the circumstances of the case admit of. The main reason for the exclusion of hearsay evidence is to be found in the want of the sanction of an oath, of legal authority requiring the statement, and an opportunity for cross-examination. Where these important tests of truth are not wanting, and the testimony of the statements of the deceased witness is on a subsequent trial between the same parties touching the same subject-matter, and open to all the means of impeachment and objections as to competency, which might be taken if the deceased person could be personally present as a witness, there would not appear to be any sound and satisfactory ground for its exclusion. This doctrine has been denied, however, all application to criminal cases, but without any good and substantial reason. The general rules of evidence, the sole object of which is the ascertainment of truth) are usually the same both in civil and in criminal cases. In the case of declarations made in extremis, indeed, even greater latitude is given in criminal than in civil cases. And, as to the testimony of the statements of a deceased witness given on a former trial, it must be conceded that the accused is confronted by the persons called to testify against him on the last as well as on the former trial. The authorities cited on behalf of the plaintiff in error to except the application of the rule from criminal cases are not well sustained. They consist chiefly of some of the earlier elementary writers on the law of evidence, who have relied solely on the case of Sir John Fenwick, 5 Harg. St. Trials, 62. That was a proceeding in Parliament by bill of attainder on a charge for high treason. It appeared that Lady Fen-wick had spirited away a material witness, who had sworn against one Cook on his trial for the same treason. And the recorder having said that the deposition taken before the examining justice was evidence against the prisoner, he having caused the witness to be spirited away, this was treated as something novel, and it was asserted that no lawyer would advance it who was out of his A, B, C. To this another member replied that he thought Lord Hale was beyond his A, B, C, especially in the Pleas of the Crown; and he read from his book that an ex parte deposition might be used against the prisoner when the witness was dead or withdrawn. Now this was not the case of a deceased witness, nor a case where there had been an opportunity for cross-examination on a former trial between the same parties. “A remark of Mr. Evans, in his second volume of Pothier on Contracts, has been referred to as sustaining this exception in criminal cases; but Mr. E'vans cites no authority to sustain him. Also, the case of State v. Atkins, 1 Tenn. 229, is referred to. But this case is directly overruled in Johnson v. State, 2 Yerg. 58, and in the case of Kendrick v. State, 10 Humph. 479, in the same state. The case of Finn v. Commonwealth, 26 Va. 701, is relied on; but the only authority cited to support this ease is that of Peak’s Evidence, and that rests solely on the authority of Fenwick’s Case. Besides this, in Finn’s Case, the statements offered were not those of a witness since dead, but one admitted to be living, who had removed from the state. The ease, therefore, is not in point. The decision in Finn’s Case was approved by the same court in 1853 in Brogy’s Case, 51 Va. 722. This was a case where an offer was made on behalf of the prisoner to prove what a witness living, but absent from the state, had sworn at a former trial. In neither of these cases, does the principle settled bear anything like as strong' analogy to the case before us as Hill’s Case, decided by the same court in 1845, where the constitutional objection to the admission of dying declarations was urged and overruled. The competency of such testimony in criminal cases is very clearly sustained by the weight of authority in England. In the case of The King v. Radburne, 1 Leach. C. C. L. 512 (3d Ed.), the testimony of a deceased witness who had been examined in the presence of the prisoner was held admissible. The same doctrine is recognized in Buller’s Nisi Prius, 242, and by Lord Kenyon in the case of The King v. Joliffe, 4 Ter. Rep. 290. In Buckworth’s Case, adjudged in the reign of Charles II, it was held that, to sustain an information for perjury, it was competent to prove by a witness what another witness had testified on the first trial. Sir T. Raymond’s Rep. 170. To the same effect is Rex v. Smith, 2 Starkie’s Rep. 186. And in the more recent cases of Regina v. Beeston, 29 Eng. L. & Eq. Rep. 527; Rex v. Rowley, 1 Moody Crown Cases 111; Rex v. Reed, M. & M. C. 403; and Rex v. Carpenter, 2 Shower 47. “In the case of United States v. Wood [Fed. Cas. No. 16,756] 3 Wash. C. C. Rep. 440, it was held that what a witness (since dead) had testified at a former trial on the indictment may be proven by a person who was present and heard his testimony. In the case of Commonwealth v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608, the constitutional question touching the competency of such testimony was directly presented; the words in the Bill of Rights in Massachusetts being substantially the same which are used in the Constitution of Ohio. And, after full deliberation, it was held that the competency of such evidence was not affected by the provision in the Bill of Rights. This decision, which is entitled to very high, consideration, is directly in point in the case before us upon the constitutional question.” Pennsylvania holds (Commonwealth v. Cleary, 148 Pa. 39, 23 Atl. 1110): Where upon a subsequent trial the witness is dead, or beyond the jurisdiction of the court, there seems to be no good reason why his testimony taken upon the former trial and clearly proved should not be admitted. In Brown v. Commonwealth, 73 Pa. 321, 13 Am. Rep. 740, it appeared that on a preliminary hearing before the committing magistrate, the defendant and his counsel being present, a witness was examined whose testimony was taken down by defendant’s counsel, and, the witness having died before the trial, the notes of his evidence, proved by the counsel under oath, were offered in evidence, objected to, and admitted. It was contended that by the Constitution of this state the defendant was entitled to meet the witness face to face. It was held by Chief Justice Read that the testimony was admissible. South Carolina holds (State v. Dewitt, 2 Hill, 282, 27 Am. Dec. 371): The rule that what a deceased witness has sworn on a former trial of the same case between the same parties may be received in evidence on a second trial is a familiar one and of almost daily application. Tennessee holds (Kendrick v. State, 10 Humph. 479): “The attorney for the state proposed to prove on the trial what Rushing had stated before the committing court. The evidence was not in violation of the constitutional right of the defendant to meet witnesses against him face to face, for Kendrick had met Rushing face to face before the committing court, and had the right to cross-examine him.” In this ease the Tennessee court discusses the question at length and refers to many authorities. Utah holds (State v. King, 24 Utah, 487, 68 Pac. 419, 91 Am. St. Rep. 808): ‘“Under the Constitution and statutes of the state the accused had a right to be present at the trial, to be confronted by the witnesses against him, and to meet his accusers face to face. He also had the right to appear and defend against the accusation preferred against him in person and by counsel. He had the right, not only to examine the witnesses, but to see into the face of each witness while testifying against him, and to hear the testimony given upon the stand. He had the right to see and be seen, hear and be heard, under such reasonable regulations as the law established. By our Constitution it is clearly made manifest that no man shall be tried and condemned in secret and unheard.’ The chief purpose in requiring that the accused shall be confronted with the witnesses against him is held to be to secure to the defendant an opportunity for cross-examination; so that, if the opportunity for cross-examination has been secured, the test of confrontation is accomplished. If the confrontation can be had, it should be had. By taking the testimony of the witness Johnson in the presence of the accused upon the examination at a time when he had the privilege of cross-examination, this constitutional privilege is satisfied, provided the witness cannot with due diligence be found within the state. The constitutional requirement of confrontation is not violated by dispensing with the actual presence of the witness at the trial after he has already been subjected to cross-examination by the accused, and the other requirements of the statutes have been complied with.” Vermont holds (State v. Hooker, 17 Vt. 659): If a hearing be had before a magistrate upon the complaint of a grand jury charging a person with the commission of a crime, and before a trial is had a witness who testified before the magistrate dies, evidence may be received to prove what that witness testified before the magistrate. Washington holds (State v. Cushing, 17 Wash. 563, 50 Pae. 518): “It is claimed the court erred in admitting the testimony given on the former trial by a deceased witness, and. it is urged with much earnestness on the part of counsel that the action of the court was an infringement of section 22 of article 1 of the Constitution, which provides that in criminal prosecutions the accused shall have a right to meet the witnesses face to face. In support of their contention counsel cite the ease of Cline v. State [36 Tex. Cr. R. 320], 36 S. W. 1099 [37 S. W. 722, 61 Am. St. Rep. 850]. No other case is cited, and it seems that the overwhelming weight of authority is to the contrary” — citing numerous authorities. Wisconsin holds (Jackson v. State, 81 Wis. 131, 51 N. W. 89): “This language is quite similar to that contained in article 6 of the amendments to the Constitution of the United States. In State v. Cameron, 2 Pin. 499, Stow, C. J., said: i ‘The trial by jury, as it existed of old, is the trial by jury secured by our national and state Constitutions. It is not granted by these instruments. It is more — it is secured. It is no American invention. Our fathers brought it with them to this country more than two centuries ago, and by making it a part of the Consitution they intended to perpetuate it for their posterity, and neither Legislatures nor courts have any power to infringe even the least of its privileges.’ That language is quoted approvingly by Ryan, C. J., in Re Eldred, 46 Wis. 553 [1 N. W. 187]. Thus it appears that the right of the accused to meet the witnesses face to face was not granted, but secured, by the constitutional clauses mentioned. It is the right, therefore, as it existed at common law that was thus secured. That right was subject to certain exceptions. One of these exceptions was that the declarations of a murdered person made when he was at the point of death and every hope of this world was gone as to the time, place, and manner in which, and the person by whom, the fatal wound was given, are admissible in evidence, notwithstanding such deceased person was not sworn nor examined, much less cross-examined. This court has frequently held that the constitutional clause quoted is no bar to the admission in evidence of such declarations. State v. Cameron, 2 Pin. 490;