I concur in the reversal of the judgment, and believe that the reproduction of the testimony of the alleged dead witness, Jester, was also reversible error. It will be noted that Jester had testified on a previous trial of this case before the jury. Subsequent to giving such evidence, and prior to the trial which resulted in this conviction, he had died, his testimony being reproduced by a witness who should have heard him testify on the former trial.
Article 24, of the Code of Criminal Procedure, thus reads: "Defendant shall be confronted by witnesses, except. `The defendant upon a trial shall be confronted with the witnesses, except in certain cases provided for in this code, where depositions have been taken.'" The Constitution provides that the accused shall be confronted by the witnesses against him. This language of the Constitution omits any provision in regard to the reproduction of the testimony in favor of the accused. In Cline v. State, 36 Tex.Crim. Rep. a majority of the court held, that the word "trial" in the Constitution as well as in article 24, Code Criminal Procedure, supra, meant a trial which means by a jury. Nowhere in our Constitution or Code of Procedure has the State ever been authorized to reproduce the oral testimony of a witness testifying on any other former trial under any circumstances whatever. It is only where depositions have been taken that such authority by statute and the Legislature has gone far enough in this direction to constitute testimony taken in an examining trial depositions. Judge Henderson, who wrote a very able dissenting opinion in the Cline case, conceded this to be correct. So, so far as the Cline case is concerned, there was no difference between the members of the court, it being unanimous upon that question. In the case of Childers v. State, 30 Texas Crim. App. 160, the same proposition is announced. In that case the testimony sought to be reproduced had been delivered on a habeas corpus trial. The rule of evidence known to the common law, when not in derogation of our constitutional or statutory rules, will apply in this State, but the rules of evidence known to the common law in Texas means the rule known under the unwritten common law, not acts of Parliament. Depositions were unknown at common law and necessarily so. Depositions have not been known except under statutory law provided by some legislative body authorized to make such provisions. The common law as known in many of the States apply to and include the acts of Parliament; some *Page 292 of them include the acts of Parliament as late as 1776. Of course, no one would contend that rule obtains in Texas, and if it does exist it is only by judicial construction or judicial legislation. Our Constitution and Legislature have made no such provision. Cox v. State, 28 Texas Crim. App. 92, is cited as being directly in point to sustain the ruling of the trial court in this case. It is true the court permitted the introduction of the testimony of the deceased witness, still article 24, Code Criminal Procedure, supra, was not even reviewed or suggested for revision in that case. Necessity is a rule that should not override both the Constitution and the acts of the Legislature. It has been said that necessity is the mother of invention; and the maternal productiveness has been carried to a remarkable extent with reference to this particular subject, and in every instance to the overturning of the Constitution and without even legislative authority. If article 24, Code Criminal Procedure, supra, means anything, it means what it says, and that is, that the defendant upon trial shall be confronted with the witnessesexcept in certain cases provided for in this code, wheredepositions have been taken. Certainly appellant was on his trial in this case, the appeal here demonstrating that fact. It will not be denied that depositions of the deceased witness were not taken. The bill of exceptions demonstrates the fact that it was the reproduction of oral testimony. There ought to be some limit of judicial legislation even where it is the outgrowth of the wonderful productiveness of the rule of necessity. The trouble here arises, as is generally the case, where the court breaks loose from its legitimate anchorage and enters the unknown seas of necessity in order to reach results; that is, the sea "necessity" is limitless, and having once entered it, there can be no rule, chart or compass, except as prescribed by the court. The Legislature in entering this limitless expanse prescribed a boundary, to wit: article 24, Code Criminal Procedure, supra, and those provisions from articles 774 to 814, Code Criminal Procedure. In every instance where they have touched the question by their authority, the boundary has been drawn at what that body termed "depositions." They have not undertaken to authorize the reproduction of oral testimony. So far as it has been called to the attention of the writer, article 24, Code Criminal Procedure, supra, has not been directly called to the attention of the court and construction placed upon it. There are cases in which the oral testimony of absent or dead witnesses has been reproduced, but so far as I am aware, as before stated, the courts have not had this matter called to their attention nor called upon to construe article 24, Code Criminal Procedure, supra, when compared with those acts of the Legislature authorizing the introduction of depositions, unless it be the Childers case and Cline case, supra. Said article 24, Code Criminal Procedure, is in direct harmony with the constitutional provisions, except with reference to the clause which authorizes the reproduction of evidence by depositions. So we may take it, so far as the legislative mind and intent is concerned, as conclusively settled that the reproduction *Page 293 of testimony in Texas of absent or dead witnesses cannot be had unless his testimony had been placed in the form of depositions. The rule that the oral testimony can be reproduced is purely judicial, and as Judge Winkler said, in the case of Sullivan v. State, 6 Texas Crim. App. 319, it arose out of "judicial necessity." And in Steagald v. State, 22 Texas Crim. App. 464, Judge White directly admitted that it was violative of the Constitution of Texas, but was necessary despite the Constitution. The only necessity the writer has been able to discover is that if such a rule was and is not adopted, some accused person might evade a conviction. This may be true as a fact, and it is equally true of almost any other known rule that applies to criminal trials. If it be possible that such a contingency could arise and the State could not obtain a jury for the trial of an accused person, then on a higher ground of necessity he must be tried before a court without a jury and his execution occur by mandate of the court in the absence of such jury trial. The right to be tried by a jury is no more imperative in the Constitution than is the confronting of the witness by the accused. The writer does not understand how a reasonable, fair or correct interpretation or construction of article 24, Code Criminal Procedure, supra, could mean other than that the party accused when placed upon his trial must be confronted by the witnesses against him. This harmonizes with the Constitution and clearly evidences the legislative intent, and it further expressly evidences the purpose of the legislative mind, which was to require the confronting of the accused by the witness against him in evry case except where depositions have been taken. So by the rule adopted by the court we have a Constitution and the legislative act both overthrown by a rule of "judicial necessity." The courts have been forced to resort to many contradictory reasons or even excuses why this plain provision of the Constitution should be set aside and disregarded. The first case occurring in Texas is recorded in 35 Tex. 587, Greenwood v. State. In that case the then Supreme Court gave as a reason for ignoring the constitutional provision, that it was necessary to so construe it that the defendant might have the excuse or be permitted to reproduce testimony in his favor. The writer would venture the assertion that no court in this day would stand for a moment upon such reason as that decided in the Greenwood case; in fact, so far as the writer understands, this was the first ground upon which it was placed in Texas, and until the Greenwood case was written, the question never arose so far as I am informed. It had not until then occurred that such rule could obtain. Texas had been in existence since 1836, either as an independent Republic or as a State in the Federal Union. The Greenwood case arose subsequent to 1866. In the Childers case, supra, the court held that the evidence taken on a habeas corpus trial could not be reproduced upon a final trial of the same party. The Constitution and the statutes with reference to the reproduction of testimony through means of depositions was there discussed, and I am firmly of the opinion that the reasoning in that case will not be successfully met, *Page 294 except by branching out wider and broader in the dangerous field of judicial necessity, and it will be no answer to this proposition that occasionally a party might escape punishment who would otherwise be convicted. This might occur under any possible rule adopted by human legislation. It would not be a safe rule for this or any other court to adopt that because a party may possibly escape punishment, this court will coin rules of "judicial necessity" to meet all possible contingencies where the Legislature has not provided rules. Nor is this met by the fact that the defendant may have once at some point confronted the witnesses against him who may subsequently die or flee the country. This rule may be made to work more harshly against a citizen, for a case may be readily imagined where the witness has not been examined fully, and the enemies of the accused secures the flight of the witness with a knowledge that upon rigid cross-examination before a jury, the testimony he may have previously given may be totally destroyed by such cross-examination. The main reason for confronting the accused with the witnesses, is that the jury who are to try the man for his life or his liberty may hear the witness testify, and to notice his expression when undergoing cross-examination as well as the whole demeanor of the witness. It is not unknown to the ordinary practitioner that witness' testimony may be plausible in its deliverance, and yet the manner of his intonation, the expression of his face, the confusion that may be exhibited when pushed or crowded with questions that go to determine his veracity, and in fact his whole general demeanor may carry conviction to the minds of the jury that the witness is committing perjury or evading the truth. The manner of the absent witness and his conduct and all of the little incidents that hang around a rigid cross-examination cannot be reproduced before a jury through the testimony of the reproducing witness. The expression and demeanor is sometimes the most powerful and successful attack upon the witness. This may or may not be policy, but it was clearly the intention of the framers of the Constitution that on his trial before a jury the accused should be confronted by the State's witnesses. I do not care further to elaborate this question. The Constitution and article 24, Code Criminal Procedure, supra, ought to be the rule controlling this court, and I find nowhere in the law or in the Constitution anything that justifies this court in entering the limitless field of necessity or by judicial construction creating rules that were plainly and clearly not intended by either the Constitution or the Legislature, and I say, in conclusion, that I do not believe the Legislature has any authority to make any rule or enact any legislation in contravention of the plain provisions of the Bill of Rights, and I am fully sustained in this statement by section 29 of the Bill of Rights itself, wherein it provides: "To guard against transgressions of the high powers herein delegated, we declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the *Page 295 following provisions, shall be void." Language could not be stronger, nor have less need of construction than this quoted section.
I concur in the other questions decided as grounds of reversal, and believe this is a stronger ground than the others for reversal.