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decided: February 4, 1895.



Author: Brown

[ 156 U.S. Page 238]

 MR. JUSTICE BROWN delivered the opinion of the court.

Error is assigned to the action of the court below, (1) in assuming jurisdiction of the case; (2) in not remitting the indictment to the Circuit Court for trial; (3) in admitting to the jury the s of the testimony of two witnesses at the former trial, who had since died; (4) in refusing to permit the defendant to introduce the testimony of two witnesses to impeach the testimony of one of the deceased witnesses,

[ 156 U.S. Page 239]

     upon the ground that the proper foundation had not been laid. We proceed to the consideration of these assignments in their order:

1. The offence was alleged in the indictment to have been committed "within that part of the Indian Territory lying north of the Canadian River and east of Texas and the 100th meridian, not set apart and occupied by the Cherokees, Creeks, and Seminole Indian tribes." By § 2 of the act of January 6, 1883, c. 13, 22 Stat. 400, this territory was expressly "annexed to" and declared "to constitute a part of the United States Judicial District of Kansas." It is true that, by the act of May 2, 1890, c. 182, creating the Territory of Oklahoma, 26 Stat. 81, § 9, jurisdiction over the territory in question was vested in the District Courts of that Territory, but with a reservation that "all actions commenced in such courts," (viz., courts held beyond and outside the limits of the Territory,) "and crimes committed in said Territory and in the Cherokee Outlet, prior to the passage of this act, shall be tried and prosecuted, and proceeded with until finally disposed of, in the courts now having jurisdiction thereof, as if this act had not been passed." As the homicide in question was committed in December, 1889, there can be no question but that it was properly cognizable in the Judicial District of Kansas. Indeed, this point is disposed of by the decision of this court in Caha v. United States, 152 U.S. 211.

2. We are also of opinion that there was no error in not remitting the indictment to the Circuit Court for trial, and in assuming jurisdiction of the entire case. Rev. Stat. § 1039, requiring indictments in capital cases, presented to a District Court, to be remitted to the next session of the Circuit Court for the same district, and there to be tried, has no application to this case, since the subsequent act of January 6, 1883, 22 Stat. 400, to which we have already called attention, vests in the United States District Courts at Wichita and Fort Scott in the District of Kansas "exclusive original jurisdiction of all offences committed within the limits of the Territory hereby annexed to said District of Kansas, against any of the laws of the United States." This act should be read as a qualification

[ 156 U.S. Page 240]

     of sec. 1039, or a repeal pro tanto of the requirement that indictments shall be remitted to the Circuit Court for trial. A District Court could not be said to have "exclusive original jurisdiction" of a case which it was obliged to remit to another court for trial.

3. Upon the trial it was shown by the government that two of its witnesses on the former trial, namely, Thomas Whitman and George Thornton, had since died, whereupon a transcribed copy of the reporter's stenographic notes of their testimony upon such trial, supported by his testimony that it was correct, was admitted to be read in evidence, and constituted the strongest proof against the accused. Both these witnesses were present and were fully examined and cross-examined on the former trial. It is claimed, however, that the constitutional provision that the accused shall "be confronted with the witnesses against him" was infringed, by permitting the testimony of witnesses sworn upon the former trial to be read against him. No question is made that this may not be done in a civil case, but it is insisted that the reasons of convenience and necessity which excuse a departure from the ordinary course of procedure in civil cases cannot override the constitutional provision in question.

The idea that this cannot be done seems to have arisen from a misinterpretation of a ruling in the case of Sir John Fenwick, 13 Howell's State Trials, 537, 579 et seq., which was a proceeding in Parliament in 1696 by bill of attainder upon a charge of high treason. It appeared that Lady Fenwick had spirited away a material witness, who had sworn against one Cook on his trial for the same treason. His testimony having been ruled out, obviously because it was not the case of a deceased witness, nor one where there had been an opportunity for cross-examination on a former trial between the same parties, the case is nevertheless cited by Peake in his work on Evidence (p. 90) as authority for the proposition that the testimony of a deceased witness cannot be used in a criminal prosecution. The rule in England, however, is clearly the other way. Buller's N.P. 242; King v. Jolliffe, 4 T.R. 285, 290; King v. Radbourne, 1 Leach Cr. Law, 457; Rex v. Smith,

[ 156 U.S. Page 2412]

     Starkie, 208; Buckworth's case, T. Raym. 170. As to the practice in this country, we know of none of the States in which such testimony is now held to be inadmissible. In the cases of Finn v. Commonwealth, 5 Rand. (Va.) 701; Mendum v. Commonwealth, 6 Rand. (Va.) 704; and Brogy v. Commonwealth, 10 Grattan, 722, the witnesses who had testified on the former trial were not dead, but were out of the State, and the testimony was held by the Court of Appeals of Virginia to be inadmissible, though the argument of the court indicated that the result would have been the same if they had been dead. In the case of State v. Atkins, 1 Overton, 229, the former testimony of a witness since deceased was rejected by the Supreme Court of Tennessee, but this was subsequently overruled in Kendrick v. State, 10 Humphrey, 479, and testimony of a deceased witness taken before a committing magistrate was held to be admissible. See also Johnston v. State, 2 Yerger, 58; Bostick v. State, 3 Humph. 344. The rule in California was formerly against the admission of such testimony; People v. Chung Ah Chue, 57 California, 567; People v. Qurise, 59 California, 343; but it is now admitted under a special provision of the code applicable to absent and deceased witnesses, which is held to be constitutional. People v. Oiler, 66 California, 101. In the case of State v. Campbell, 1 Rich. (S.C.) 124, the testimony of a deceased witness had been taken before a coroner, but in the absence of the accused, and of course it was held to be inadmissible.

Upon the other hand, the authority in favor of the admissibility of such testimony, where the defendant was present either at the examination of the deceased witness before a committing magistrate, or upon a former trial of the same case, is overwhelming. The question was carefully considered in its constitutional aspect by the Supreme Judicial Court of Massachusetts in Commonwealth v. Richards, 18 Pick. 434, in which it was said that "that provision was made to exclude any evidence by deposition, which could be given orally in the presence of the accused, but was not intended to affect the question as to what was or was not competent evidence to be given face to face according to the settled

[ 156 U.S. Page 242]

     rules of the common law." The subject was also treated at great length by Judge Drummond in United States v. Macomb, 5 McLean, 286, and the substance of a deceased witness's testimony given at a preliminary examination held to be admissible. All the cases up to that time were cited in the opinion, and the decision put upon the ground that, the right of cross-examination having once been exercised, it was no hardship upon the defendant to allow the testimony of the deceased witness to be read. From the following list of cases it will be seen that the same doctrine prevails in more than a dozen States. Summons v. State, 5 Ohio St. 325; Brown v. Commonwealth, 73 Penn. St. 321: in both of which cases the question was elaborately considered. State v. McO'Blenis, 24 Missouri, 402; State v. Baker, 24 Missouri, 437; State v. Houser, 26 Missouri, 431 -- a most learned discussion of the subject; State v. Able, 65 Missouri, 357; Owens v. State, 63 Mississippi, 450; Barnet v. People, 54 Illinois, 325; United States v. White, 5 Cranch C.C. 457; Robinson v. State, 68 Georgia, 833; State v. Wilson, 24 Kansas, 189; State v. Johnson, 12 Nevada, 121; Roberts v. State, 68 Alabama, 515; State v. Cook, 23 La. Ann. 347; Dunlap v. State, 9 Tex. App. 179; O'Brian v. Commonwealth, 6 Bush, 563; State v. Hooker, 17 Vermont, 658; Crary v. Sprague, 12 Wend. 41; United States v. Wood, 3 Wash. C. C. 440; State v. Valentine, 7 Iredell, (Law,) 225. While the precise question has never arisen in this court, we held in Reynolds v. United States, 98 U.S. 145, that if the witness is absent by the procurement or connivance of the defendant himself, he is in no condition to assert his constitutional immunity.

The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he

[ 156 U.S. Page 243]

     gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.

We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject -- such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a Bill of Rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the accused, and farther than the safety of the public will warrant. For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination; nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question

[ 156 U.S. Page 244]

     their admissibility. They are admitted not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice. As was said by the Chief Justice when this case was here upon the first writ of error, (146 U.S. 140, 152,) the sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath. If such declarations are admitted, because made by a person then dead, under circumstances which give his statements the same weight as if made under oath, there is equal if not greater reason for admitting testimony of his statements which were made under oath.

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 of subjecting him to the ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of, and many of the very cases which hold testimony such as this to be admissible also hold that not the substance of his testimony only, but the very words of the witness, shall be proven. We do not wish to be understood as expressing an opinion upon this point, but all the authorities hold that a copy of the stenographic report of his entire former testimony, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of the deceased witness, such as was produced in this case, is competent evidence of what he said.

4. Error is also assigned to the action of the court in refusing to permit the defendant to introduce the testimony of two witnesses, James and Violet, to impeach the testimony of Whitman, one of the deceased witnesses, by showing statements made by him contradicting his evidence upon the stand, upon the ground that the proper foundation had not been laid by interrogating Whitman himself as to his having made such contradictory statements.

In this connection the defendant proposed to prove by the witness James that Whitman told him in November, 1892, that he did not see Mattox on the night he did the shooting,

[ 156 U.S. Page 245]

     because it was too dark; that he could not tell who did the shooting; that on the next day he told him that all that he had testified to on the former trial was false, and that he wanted to leave the country; and that if he, witness, would go to see his (Mattox's) friends and get him fifty dollars, he would give him (witness) twenty-five and himself take twenty-five, and leave the country; that he did not want to appear against Mattox because what he had sworn to was not true. He also sought to prove by the witness Violet that in January, 1892, Whitman said emphatically and specifically that his testimony against Mattox was given under threats made to him in the corridors of the court-house in Wichita; that just prior to his being called to the witness stand he was approached by one Stiles, who shook his finger in his face and told him that if he dared to utter one word on the witness stand in favor of defendant Mattox, he (Stiles) would see that he was sent over the road; further declaring that if it had not been for such threats his testimony would not have been given as it was.

Objection was made by the district attorney to the introduction of this testimony upon the ground that Whitman had been examined and cross-examined upon the former trial; that the questions could not be propounded to the witnesses James and Violet for the purpose of impeachment, as the government had lost the opportunity, by the death of the witness Whitman, of putting him upon the stand and contradicting them. The facts were that the statements of Whitman, which the defendant proposed to prove by the witnesses James and Violet, were made after the former trial, so that the proper foundation could not have been laid by asking Whitman whether he had made such statements.

The authorities, except in some of the New England States, are almost unanimous to the effect that, before a witness can be impeached by proof that he has made statements contradicting or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements. Justice to the witness himself requires, not only that he should

[ 156 U.S. Page 246]

     be asked whether he had ever made such statements, but his attention should be called to the particular statement proposed to be proven, and he should be asked whether, at such a time and place, he had made that statement to the witness whose testimony is about to be introduced. This method of impeachment was approved by this court in Conrad v. Griffey, 16 How. 38, 46, wherein the rule is stated to be "founded upon common sense, and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred to, and show that they were made under a mistake, or that there was no discrepancy between them and his testimony." In this case the deposition of a witness taken in the cause was sought to be impeached by a letter of the witness written before his deposition, and addressed to the plaintiff, with an affidavit annexed by him of the same date. The general rule is also approved ...

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