Appellant was convicted of murder in the second degree, and prosecuted an appeal. The judgment was reversed by a majority of the court at the Austin term, 1896. I dissented from the opinion rendered in the case. I will now state my reasons for refusing to agree to that opinion. A majority of the court held that the court below committed an error in allowing the State, over the defendant's objections, to read the evidence of one Monroe, taken in the examining trial of the defendant on the same charge, reduced to writing, and properly certified to; the proof showing that, since giving in his evidence, said Monroe had died. The appellant objected to this evidence, on the ground that it was violative of Section 10 of the Bill of Rights, which guaranties, among other things: "In all criminal prosecutions the accused * * * shall be confronted with the witnesses against him." The court below, following a long line of decisions in *Page 355 this State, overruled the objection, and admitted the evidence. The appellant saved his bill of exceptions, and now urges the question before this court. As I understand the decision, this court holds — First. That examining trial evidence, taken before a magistrate, and offered on the trial of a defendant in the same case or accusation, where the defendant was present, and had an opportunity to cross-examine the witness, is not a deposition, in contemplation of our statute; that is, that Art. 814 (formerly Art, 774) Code Crim. Proc., 1895, does not refer to examining trial evidence, and authorize its introduction against a defendant on his trial when the witness has died since giving his testimony. Second. That, even if said statute (Article 814) authorizes the use of such evidence against a defendant by its terms, it would be unconstitutional, because violative of Section 10 of the Bill of Rights. As the last proposition goes to the very base of the admissibility of the evidence, I will discuss that first. I beg to suggest in advance, however, that, in a field so thoroughly gleaned by able jurists, it would be arrogant in me to presume to offer any new reasons on the subject. I shall therefore content myself with going over the ground already covered, and citing some of the great number of authorities bearing on this subject, and deduce therefrom the principles established long ago, rendering such evidence admissible, in entire accord with our constitutional provision above quoted. No mention is made of this question in Magna Charta, and it does not seem to have been one of the grievances for which King John's subjects demanded redress, unless it be included in Article 39, which is as follows: "No freeman shall be taken or imprisoned or disseised or outlawed or banished or in anyways destroyed, nor will we pass upon him, nor will we send upon him unless by the lawful judgment of his peers or by the law of the land." However, there can be no doubt it was a part of the common law of Great Britain that, on the trial of a criminal case, it was necessary to confront the accused with the witnesses against him. On a trial a defendant could only be convicted of a crime upon the evidence of witnesses for the crown, and these had to be present, and confront him on the trial. 3 BI. Comm., p 373; Green, Eng. People, p. 279. This rule, though it has not always been complied with, has never been gainsaid or denied under the British Constitution; but from time to time, as questions arose, rules of evidence were developed in conformity with the above. As exceptions to the general rule, requiring witnesses to speak as to facts directly within their knowledge, hearsay evidence came to be admitted in many cases, such as matters of res gestæ, declarations of co-conspirators, questions of pedigree, dying declarations, etc. State v. McO'Blenis, 24 Mo., 402; 69 Amer. Decs., 435. This kind of evidence was admitted in criminal cases, and, though hearsay in character, was deposed to by witnesses before the jury; the witness testifying, of course, confronting the defendant. And this was allowed notwithstanding the rule that the defendant should be confronted with the witnesses against him. While the rule required the confrontation, it did not propose to regulate what the witness should *Page 356 testify to when he did confront the defendant. This was regulated by the rules of evidence. And in this connection it was held that the guaranty of confrontation was satisfied if, at any time during the prosecution, the witness confronted the defendant (see Summons v. State, 5 Ohio Stat., 325); the rule at common law being stated in this wise: "If there has been a previous criminal prosecution between the same parties, and the point in issue was the same, the testimony of a deceased witness, given on oath at the former trial, is admissible on the subsequent trial, and may be proved by any one who heard him give the evidence." See, 2 Russ. Crimes, p. 683; Whar. Crim. Ev., § 627.
To show how the matter stood at common law, I will quote from a few of the old English cases: Buckworth's case (decided in 1654, Mich. term, 20 Car., II.; see, T. Raym., 170), upon this point, is as follows: "Information against Buckworth and others for perjury in ejectment. Defendants justified upon not guilty, and now, upon evidence to prove the perjury, one was produced to prove what one that is since dead swore upon the first trial; and by Kelying, Chief Justice, held: 'It shall not be allowed, because betwixt other parties;' but Twisden and Morton contra, and it was allowed." In Pitton v. Walter (5 Geo. I.; decided in 1718) 1 Strange, 162, Pratt, Chief Justice, said: "The bare producing the postea is no evidence of the verdict, without showing a copy of the final judgment, because it may happen that the judgment was arrested or a new trial granted; but it is good evidence that a trial was had between the same parties, so as to introduce an account of what a witness swore at that trial, who has since died." In Radbourne's case (decided in 1787), 1 Leach, Crown Cases, 457, it is held: "An information before a justice, made by deceased on oath, in the presence of the prisoner, may be given in evidence on the trial, though the informant was not apprehensive of death, and though the information be signed by one magistrate only." In Rex v. Woodcock (decided in 1789) 1 Leach, Crown Cases, 500, Lord Chief Baron Ayre says: "The most common and ordinary species of legal evidence consists in the depositions of witnesses, taken on oath before the jury, in the face of the court, in the presence of the prisoner, and received under all of the advantages which examination and cross-examination can give. But beyond this kind of evidence there are also two other species which are admitted by law. The one is the dying declarations of a person who has received a fatal blow. The other is the examination of a prisoner, and the depositions of the witnesses that may be produced against him, taken officially before a Justice of the Peace, by virtue of a particular act of parliament, which authorizes magistrates to take such examinations, and directs that they shall be returned to the court of jail delivery. This last species of deposition, if the deponent should die between the time of examination and the trial of the prisoner, may be substituted in the room of that viva voce testimony, which the deponent, if living, alone could have given, and is admitted of necessity, as evidence of the fact." In Rex v. Smith (decided in 1817; see, Russ. R., 339), held: "Deposition of the deceased *Page 357 held admissible in a case of murder, and though taken when the prisoner was charged with another offense, and although the greater part of it had been reduced into writing during his absence, it appearing that the deceased was afterwards resworn in the prisoner's presence, the deposition then read over and stated by the deceased to be correct, and the prisoner asked whether he had any questions to put to defendant." See, 2 Starkie, 208, and 3 E. C. L., 397. Lord Ellenborough and three of the other judges stated, "that they should have doubted the admissibility of the evidence but for the case of Rex v. Radbourne, 1 Leach, Crown Cases, 457," cited supra. From Reg. v. Beeston (decided in 1855), 29 Eng. Law and Eq., 527, we quote as follows: "The prisoner was charged before a magistrate with wounding A., with intent to do him grievous bodily harm, and A.'s deposition was taken. A. afterwards died of the wound, and the prisoner was indicted for his murder. Held: That, on the trial for the murder, the deposition of A. might be read in evidence. Although it was not on the same technical charge, it was taken in the same case, and the prisoner had had full opportunity of cross-examination. Martin, B., used the following language in said case: 'Our decision is in accordance with the case of Rex v. Radbourne, 1 Leach, Crown Cases, 457, and Rex v. Smith, Russ R., 339. There is nothing in the statutes to show an intention to alter the common law which rendered the deposition admissible, but I believe that, upon the language of the enactment itself, a deposition would be admissible. Crowder, Judge, said: 'I think the deposition receivable at common law and under the statute. It appears to me not to have been the object of the statute to restrict the common law. It is not necessary that the charge in the indictment should be the identical technical case charged before the justice.' " In Reg. v. Scaife (decided in 1851; see, 79 E. C. L., 237), the prisoner, Scaife, was indicted, together with Thomas Rooke and John Smith, for larceny. Evidence was given that, by the procurement of Smith, one of the witnesses for the prosecution had been kept out of the way, and her deposition was tendered. The evidence was admitted to be receivable as against Smith, but it was said that it was no evidence against Scaife and Rooke. The case came before the court of queen's bench, and it was held that the learned judge ought to have told the jury that the evidence applied to the case of Smith only, and not to that of either of the other prisoners. Coleridge, one of the justices, said: "I always understood before the late statute that if a witness was dead or insane, or kept away by the procurement of the prisoner, his deposition was admissible, if properly taken." The judges seem to have entertained no doubt as to the admissibility of the deposition as against Smith, who had spirited the witness away. Mr. Roscoe says. "That depositions are admissible as substantive evidence at common law should the witness be either dead (citing Hale, Penal Code, 305; Rex v. Westbeer, 1 Leach, Crown Cases, 12; Rex v. Bromwich, 1 Lev., 180; 1 Salk., 281; Bull, N. P., 242), or be in such a state as likely never to be able to attend the assizes (Rex v. Hogg, 6 Car. P., *Page 358 176; Reg, v. Wilshaw, Car. M., 145); or if the witness be kept away by the practices of the prisoner (Reg. v. Guttridge, 9 Car. P., 471)." See, 1 Rose. Crim. Ev. (8th Amer. Ed.), p. 104 (marg. p. 69).
These cases show the state of the English law on this subject since the year 1654, and show how the courts of common law regarded the rule of evidence with reference to the right of the defendant on a trial to be confronted with the witnesses against him. As the British Constitution, in its unwritten law, contained this guaranty in every jury trial, so our government, national and State, when they came to adopt constitutions, following in the wake of the mother country, placed this provision as one of the guaranties of a defendant in every criminal prosecution. The clause or expression came to us as understood and defined in England; and when Article 6 of the amendment to the Constitution of the United States was adopted, providing "that in all criminal prosecutions * * * the accused shall be confronted with the witnesses against him," the framers of the organic law were advised of the meaning of said clause with reference to the rules of evidence in regard thereto; and, when the Federal courts came to pass on the question, they gave it the same construction as to the reproduction of the testimony of a deceased witness as had heretofore been given to it by the English courts. See, U.S. v. Macomb, 5 McLean, 296, Fed. Cas. No. 15,702; U.S. v. White, 5 Cranch, C. C. 460, Fed. Cas. No. 16,679; U.S. v. Wood, 3 Wn., C. C. 440, Fed. Cas. No. 16,756; Mattox v. U.S. (decided February 4th, 1895), 15 Sup. Ct., 339. I quote from the latter case as follows: "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 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 the 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 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 Scotfree, simply because death had 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 *Page 359 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 further than is necessary to the just protection of the accused, and further 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 then 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 justice. As was said by the Chief Justice when the case was here upon the first writ of error (146 U.S. 140; 13 Sup. Ct., 50); 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 gave his statements the same weight as 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 fact, 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."
As before stated, a great majority of the States of the American Union, in their Constitutions, have a similar clause to the Sixth Amendment to the Constitution of the United States; and so far as I am advised, without exception, in every State where the question has been presented, it is held that where a witness has once testified against a defendant on the same charge, whether in the examining court or at a former *Page 360 trial of the case, and has since died, his testimony can be reproduced. See, Roberts v. State, 68 Ala. 515; Pope v. State,22 Ark. 372; Robinson v. State, 68 Ga. 833; Barnett v. People, 54 Ill. 325; State. v. Wilson, 24 Kan. 189; State v. Cook, 23 La. Ann., 347; Com. v. Richards, 18 Pick., 434; People v. Sligh, 48 Mich. 54, 11 N.W. Rep., 782; Owens v. State,63 Miss. 450; State v. McO'Blenis, 20 Mo., 402; State v. Able, 65 Mo., 370; State v. Johnson, 12 Nev. 121; State v. Valentine,29 N.C. 225; State v. Staples, 47 N.H. 113; Summons v. State, 5 Ohio Stat., 325; Brown v. Com., 73 Pa. Stat., 321; State v. DeWitt, 2 Hill (S.C.), 282; Kendrick v. State, 10 Humph., 479. The brief of the appellant's attorney and the dissenting opinion of Judge Ryland in the McO'Blenis case, supra, are referred to in the opinion of the court as being an able exposition of the views entertained by the court. In my judgment, the opinion itself in that case is a complete answer to the proposition. I quote from said opinion, as follows; "The people have incorporated into their frame of government, a great living principle of the common law, under which they and their ancestors have lived; and it is the duty of the court so to construe it, as to make it effectual to answer the great purpose they had in view. And this principle, we think, is no other than the principle of the common law in reference to criminal evidence — that it consists in facts within the personal knowledge of the witness, to be testified to in open court, in the presence of the accused. This principle, however, was nowhere written down on parchment. It is not to be found in the Magna Charta or in the English Bill of Rights, but it existed in the living memory of men, and was always a part of the common law, although in bad times it was trodden under foot by bad men in high places. It is not, however, a stiff, unbending rule, extending to every case without exception, falling within its letter, but is limited and controlled by subordinate rules, which render it safe and useful in the administration of public justice, and are as well established as the great principle itself, which, with all its exceptions and limitations, was taken from the existing law of the land, and incorporated into the Constitution. The purpose of the people was not, we think, to introduce any new principle into the law of criminal procedure, but to secure those that already existed as a part of the law of the land from future change, by elevating them into constitutional law. It may as well be the boast of an Englishman living under the common law, as of a citizen of this State living under our Constitution, that in a criminal prosecution he has the right to meet the witnesses against him face to face; and yet it was never supposed in England at any time that this privilege was violated by the admission of a dying declaration, or of the deposition of a deceased witness, under proper circumstances, nor, indeed, by the reception of any other hearsay evidence established and recognized by law as an exception to the general rule. It is said by Lord Aukland, in reference to the conduct of the British courts in the sixteenth and part of the seventeenth centuries: 'Depositions of witnesses, forthcoming if called, but not permitted to be confronted with the prisoner, *Page 361 written examinations of accomplices, living and amenable, confessions of convicts lately hanged for the same offense, hearsay of these convicts repeated at second hand from others, all formed so many classes of competent evidence, and were received as such in the most solemn trials by learned judges." Principles of Penal Law (2nd Ed.), 197. But no complaint of the character of the one now made was ever heard. This was not an evil to be provided for by any law, much less by a constitutional provision. These exceptions to the general rule were never considered violations of the rule itself. They grew out of the necessity of the case, and are founded in practical wisdom. The facts thus communicated go the jury, not as entitled to the full faith of the facts sworn to by a witness from his own personal knowledge, but yet as competent to be considered by the jury in forming their verdict. But whether these exceptions be wise or unwise, is not submitted to our judgment. They were well established at the time, and, we think, went into the Constitution as part of the great principle of criminal evidence adopted by the clause now under consideration."
In Texas this question first came up in Greenwood v. State,35 Tex. 588, decided by our Supreme Court in 1871. The charge in that case was an assault with intent to murder. One Hampton had testified on a former trial of the case, and before the second trial he died. The lower court, on the subsequent trial, permitted his testimony to be proved by one Lassiter, who heard the deceased witness give in his testimony at the first trial. This action of the court was assigned as error, and the question was thus presented. This case was tried before the adoption of our present Constitution of 1876, but the clause of the Bill of Rights requiring the confrontation of the accused by the witnesses against him is contained in the same language in every constitution under which our people havelived, beginning with the Constitution of the Republic of Texas in 1836. See, Declaration of Rights, Art. 1, § 8; Constitution 1845; Constitution 1866, Bill of Rights, § 8; and Constitution 1869, Bill of Rights, § 8. The court in said case, in discussing the admissibility of the testimony, with reference to the article in our Constitution requiring the defendant, to be confronted with the witnesses against him, says, that the weight of authority, English and American, is in favor of the admissibility of the testimony;" and a number of well-considered cases are cited, and the court held the testimony admissible. Black's case (see, 1 Tex.Crim. App., 369) was tried in the lower court at the August term, 1875, under the Constitution of 1869; but the question was passed upon in the Court of Appeals after the adoption of the Constitution of 1876. In that case the defendant was charged with murder. There had been a former trial, and Mrs. Butler, the wife of the deceased, had testified as to the dying declarations of her husband. She afterwards died, and at a subsequent trial the lower court permitted a witness to testify before the jury, and reproduce the testimony of Mrs. Butler concerning the dying declarations of her husband. This action of the court was assigned as error, and the question in all its *Page 362 bearings was presented to our Court of Appeals. The inadmissibility of this testimony, in view of the provisions of our Constitution, was ably and exhaustively presented by the appellant in that case. Judge Ector, in deciding the case, uses this language: "We think, however, at this time it has generally been declared to be the correct rule of law, both in England and in most of the American States, that the testimony of a deceased witness at a former trial of a criminal charge is admissible at a subsequent trial of the same case, and may be proved by another person who heard that testimony, and he can qualify himself to give it; that in this respect there is no difference between civil and criminal cases, and that the admission of such testimony is not against the provisions of Magna Charta, nor against the provisions of the Bill of Rights, of the first Article, § 8, of the Constitution of the State of Texas, wherein it is provided 'that in all criminal prosecutions the accused shall be confronted with the witnesses against him.' The current of authorities sustain the rulings of the court below in permitting Waters to give the testimony of the deceased witness at a former trial of this case." And he cites a number of authorities, including the previous case of Greenwood v. State, and Johnson v. State, 1 Tex.Crim. App., 333. In Johnson's case, supra, the witness, Addington, testified against Johnson in the examining court; and his testimony was reduced to writing, and properly certified to. Said witness afterwards died. Subsequently the case was tried in the District Court, and the examining trial testimony was introduced in evidence, over the defendant's objections. The point was saved, and the question presented to the Court of Appeals. Notwithstanding the decision in Greenwood's case, supra, the constitutional objections were again urged by appellant to this character of testimony. The court overruled the objection, and admitted the evidence. Our Court of Appeals, in passing on the question, say: "Testimony of the statements of a deceased witness 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. * * * The constitutional objection to the admission of such testimony, that the accused shall be confronted with the witnesses against him,' has been frequently presented to the courts for adjudication, and is now no longer an open question. The leading case is Com. v. Richards, 18 Pick., 434, where it was decided that the competency of such evidence was not affected by the provisions in the Bill of Rights. The provision of the Bill of Rights of Massachusetts upon which that decision was rendered was substantially the same as that to be found in the present Constitution of Texas (Sec. 10, Art. 1), and the statutory requirement's in Paschal's Dig., Art. 2490." A number of authorities, both English and American, are cited, and the rule laid down in Greenwood's case is approved. These cases have "been followed in Texas by an unbroken current of decisions, and the rule never questioned until *Page 363 the present case arose. See, Potts v. State, 26 Tex.Crim. App., 663; Childers v. State, 30 Tex.Crim. App., 160 (in this case the principle was recognized, but it was held that testimony taken in a habeas corpus trial was not examining trial evidence); Varnell v. State, decided in 1896, unreported; McGee v. State 31 Tex.Crim. Rep.; Bennett v. State,32 Tex. Crim. 216; Meyers v. State, 33 Tex.Crim. Rep.. In the above cases the predicate was the death of the witness. In the following cases the same principle was announced, but the predicate laid was absence of the witness from the State. Sullivan v. State, 6 Tex.Crim. App., 319 (in this case the predicate was theft the witness, after diligent search, could not be found in the State; this was subsequently overruled in Evans v. State, 12 Tex.Crim. App., 370); Cooper v. State, 7 Tex.Crim. App., 194; Post v. State, 10 Tex.Crim. App., 579; Garcia v. state, 12 Tex.Crim. App., 335; Evans v. State, Id., 370; Cowell v. State, 16 Tex.Crim. App., 57; Kerry v. State, 17 Tex.Crim. App., 178; Parker v. State, 18 Tex.Crim. App., 72; Steagald v. State, 22 Tex.Crim. App., 464; Conner v. State, 23 Tex.Crim. App., 378; Parker v. State, 24 Tex.Crim. App; 61; McCollum v. State, 29 Tex.Crim. App., 162.
From the vast number of decisions, English and American, on this subject, all one way — in England construing the question at common law, and in America construing the very letter of the Bill of Rights in regard to the reproduction of the testimony of a deceased witness, considered, discussed and followed by an unbroken line of decisions in our own State — it would certainly seem that, if any question could be considered, settled and fixed in the jurisprudence of a State, this should be, I apprehend no one will dare question at this day, that when the amendment to the Constitution of the United States on this subject was adopted, and when the States of the Union adopted that part of their constitutions requiring "in all criminal prosecutions that the defendant be confronted by the witnesses against him," it was done with reference to and having in view the rule on the subject in Great Britain. Nor will it be gainsaid that when our fathers in the Republic of Texas, in 1836, engrafted this provision in their Bill of Rights, and later, when our State came into the Union, under the Constitution of 1845, with the provision inserted in the Bill of Rights that "in all criminal prosecutions the accused shall be confronted by the witnesses against him," this was copied from similar declarations in constitutions of other States of the American Union; and, in so adopting this provision, they considered what was the rule of construction, and what was the interpretation of similar language in the constitutions of other States. Those who formed our republic were, for the most part, from the older States, and it cannot be assumed that they were ignorant of the common law or of the laws and constitutions of the older States, and the same can be said of those who adopted the Constitution of 1845. As early as 1835, when a provincial government for Texas was first organized, in the instrument of organization, Article 7, provides: "All trials shall be by jury, *Page 364 and in criminal cases the proceedings shall be regulated and conducted upon the principles of the common law of England, and the penalties prescribed by said law in case of conviction shall be inflicted, unless the offense shall be pardoned or fine remitted." The Constitution of the Republic of Texas contains this provision: "Congress shall, as early as practicable, introduce by statute the common law of England, with such modifications as our circumstances and their judgment may require, and in all criminal cases the common law shall be the rule of decision." Article 4, § 13. This was followed by the Act of Congress on the 20th of January, 1840, enacting "that the common law of England (so far as it is not inconsistent with the Acts of Congress now in force) shall, together with such acts, be the rule of decision in this republic, and shall continue in full force until altered or repealed by Congress. Pasch. Dig., Art. 978. When our Code was adopted, in 1856, this additional provision on this subject became a part of the law to-wit: "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 some statute of this State." Our Constitution of 1845, was framed by men familiar with the principles of English common law. Many of them had attained eminence in their States before their removal to Texas, and were conversant with their systems of constitutions and laws. This is made manifest by the fact that all of the cardinal principles of our Constitution are but copies from the older States. The provision in question, to-wit: "In all criminal prosecutions the accused shall be confronted by the witnesses against him," etc., is an exact counterpart of that contained in the Constitutions of it number of States, and is substantially similar to that of others; and to say that our Constitution builders were seeking new guaranties for our citizens, not known in the older commonwealths, or were proposing a new experiment, it seems to me, would be attributing to them a degree of ignorance and audacity neither warranted by the work they did, or by the history of those times and traditions that have been handed down to us. Our Constitution builders were lawyers, and they knew what they were doing, and when they said, "The accused shall be confronted by the witnesses against him," they knew how this question had been construed by the English courts, and they knew how it had been construed by the American courts under constitutional provisions similar to ours; and so, in all our constitutions from 1845 up to the present time, this provision has been carried forward in exactly similar language. And, moreover, our Constitution builders, in 1876, and our people who approved their work, knew how this provision had stood in former constitutions, and knew how our own courts, in Greenwood v. State and Black v. State, had construed a former similar provision; and it is a familiar rule of construction that when a statute is adopted from an English statute, or copied from a statute of another State, it is deemed to have been adopted together with the construction placed thereon by the courts of *Page 365 such State. See, 23 Amer. and Eng. Ency. of Law, p. 432, and authorities there cited. "Where the words have been long used in a technical sense, and have been judicially construed to have a certain meaning, and to have been adopted by the legislature as having a certain meaning prior to a particular statute in which they are used, the rule of construction requires that the words used in such statute shall be construed according to the sense in which they have been so previously used, although that sense may vary from a strict literal meaning of the words. * * * In the interpretation of re-enacted statutes, the court will follow the constructions which they received when previously in force. The legislature will be presumed to know the effect which such statutes originally had, and, by re-enactment, to intend that they should have the same effect. So, statutes originally enacted in another State, when adopted, are deemed to be taken with the settled construction given them in the State from which they are copied." See, Suth. St. Const., §§ 255, 256, and authorities there Cited. On this subject Judge Cooley says: "Great Britain and the thirteen original States had each substantially the same system of common law originally, and a decision by one of the higher courts of Great Britain as to what the common law is upon any point is certainly entitled to great respect in any of the States, though not necessarily to be accepted as binding authority, any more than the decisions in any one of the other States upon the same point. It gives us the opinions of able judges as to what the law is, but its force as an authoritative declaration must be confined to the country for which the court sits and judges. But an English decision before the Revolution is in the direct line of authority; and where a particular statute or clause of the Constitution has been adopted in one State from the statutes or Constitution of another, after a judicial construction had been given it in such last-mentioned State, it is but just to regard the construction as having been adopted as well as the words, and all the mischiefs of disregarding precedents would follow as legitimately here as in any other case. Cooley, Const. Lim., p. 64. "When a constitutional provision has received a settled judicial construction, and is afterwards incorporated into a new Constitution, or into the Constitution of another State, it must be presumed to have been adopted with the knowledge of that interpretation, and the courts will feel bound to adhere to it." See, 3 Amer. and Eng. Ency. of Law, 679, and authorities there cited.
In Munsen v. Hallowell, 26 Tex. 475, in speaking of the construction of our statute of frauds, with reference to the statute of limitations, the same being a copy of the English statute, the following language is used: "Whether the construction here enacted is the one that we should place upon the statute if it was a question of first impression, unaffected by previous judicial opinion, is not now necessary to be determined. This construction has been settled by a long series of decisions, reaching back in England and America to the time of its enactment. If, under these circumstances, we were to give it a different *Page 366 interpretation from that which it has heretofore uniformly received, we think we should with much more propriety be subject to the charge of judicial legislation than when we give it the construction which has heretofore almost invariably been given to it, although its mere letter might lead to a different conclusion." In Morgan v. Davenport, 60 Tex. 230, the principle announced in the previous case is approved, and it is further held that if that part of the borrowed act which caused it to be aided by judicial construction in the government from which it was borrowed, so as to give it a meaning adverse to the common import of the language used, be provided for by the Texas law, of which the borrowed statute becomes a part, then the presumption is that the legislature intended to adopt only so much of the former construction as may be provided for and practically incorporated in the new statute. In Brothers v. Mundell, 60 Tex. 240, it is held "that when the statute of another State is adopted in Texas, the presumption must prevail that the legislature intended to adopt with it the settled construction given to it by the courts of the State from which it was borrowed." This was the case of the construction of a chattel mortgage, under a statute which was similar in its language to that used in the States of New York, New Jersey, Ohio, Michigan, Nebraska, Minnesota, and others; and it was held that, in the adoption of such statutes, we adopted the construction placed thereon by the courts of said States. In Trigg v. State, 49 Tex. 645, it was held "that the Constitution of 1876, in Section 24, of Article 5, in adopting the provisions of a former constitution for removals by the District Judge, and extending same to other officers, is considered to have adopted the judicial construction put upon the powers of the District Judge, and may be regarded as an authoritative adoption of the summary remedy, as it has been previously construed and acted upon by the Supreme Court in Gordon v. State, 43 Tex. 338." Nor are we lacking in authority upon this point in the decisions of this court. In Huntsman v. State, 12 Tex.Crim. App., 619, Judge Hurt, speaking for the court as to the construction of the word "indictment," uses this language: "What is meant by the term indictment,' as used in this clause of the Constitution? How are we to ascertain its meaning? Does it mean anything which may in the future be provided by statute? Or does it mean precisely what was understood by the term indictment by a grand jury' in the country and in the judicial and legislative parlance at the time the Constitution was adopted? That the affirmative of the latter question is true, needs to authority in this late date to satisfy the legal mind." He then cites from provisions of the Code of Criminal Procedure to show what was meant by indictment when the Constitution was adopted, and then quotes from Judge Roberts, in Hewitt v. State, 25 Tex. 725 [25 Tex. 725], as follows: "At the adoption of our Constitution, and for a century previous, both in England and America, this is what was understood as constituting an indictment." "And, again," he says, "the Constitution did not stop to define this term. They used it as a term well defined and understood." *Page 367 And, in Powell v. State, 17 Tex.Crim. App., 345, Judge White, in discussing the meaning of the term "jeopardy," as used in our Constitution, expresses himself thus: "But the legislature has no authority to interpret or declare a matter of constitutional construction; nor can it set aside a construction of the constitutional provision which has become fixed and settled by judicial construction. With regard to its own enactments, the rule is that, 'as the legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force. To declare what is or has been is a judicial power; to declare what the law shall be is legislative. One of the fundamental principles of all our governments is that the legislative power shall be separate from the judicial.' Before their use and adoption into our Constitution of 1845, the terms 'former jeopardy' had received their meaning and significance from judicial decisions. * * * As before stated, however, the meaning of the term 'former jeopardy' has, in our opinion, been fixed long before the words were used in the Constitution. * * * This construction of the term 'jeopardy' in our Constitution being the proper one, as settled by the decisions of the courts before the Constitution was adopted, it is to be presumed that the word was used in that sense when our Constitution makers put it into the Constitution."
These authorities not only show that our Supreme Court, in Greenwood's case, and in Black's case, were required to adopt and follow the construction (as they did) placed on said provision of the Bill of Rights in regard to the confrontation of the accused by the witnesses against him, as placed thereon by the courts of the American States, but after the decisions in Greenwood's and Black's cases, which reengrafted the same interpretation that had been placed upon the Bill of Rights by other States — after the adoption of the Constitution in 1876 — our Court of Appeals was doubly bound to follow the interpretation placed upon this provision of the Bill of Rights, not only by the courts of other States, but by those of our own as well. This, as has been seen, was done in a great number of cases. So much for the construction of Section 10 of our Bill of Rights. But it is urged that the testimony offered in this case was examining trial evidence, and that such evidence is not a deposition; so that, even if our Bill of Rights authorized the reproduction of the testimony of a deceased witness, said statute relating to depositions does not cover examining trial evidence. Our statutes authorizing depositions in criminal cases are to be found in our Code of Criminal Procedure of 1895, from Article 797 (formerly 757) to Article 814 (formerly 774), inclusive, and also Article 24 (formerly 25). Article 814 is as follows: "The deposition of a witness taken before an examining court or a jury of inquest, 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 *Page 368 evidence, as is provided in the two preceding articles for the reading in evidence of depositions." Article 24 is its follows: "The defendant upon trial shall be confronted with the witnesses, except in certain cases provided for in this Code, where depositions have been taken." I might content myself with simply citing the decisions of this court in Johnson v. State, 1 Tex.Crim. App., 333, and Kerry v. State, 17 Tex.Crim. App., 178. Johnson's case was decided in 1870, before the passage of Article 814, which was passed in 1879. At the time of the decision there was in existence a statute passed in 1866. See, 2 Pasch. Dig., Art. 6605. Said statute was as follows: "In all criminal prosecutions where 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 down and reduced to writing may be read in evidence by such defendant as proof of the facts therein stated, upon any subsequent trial for the same offense; provided, however, that in all other respects testimony of such deceased witness shall 'be subject to the established rules of evidence in criminal cases. In every case death must be established to the satisfaction of the court." It was contended in said case that the statutes only authorized the use of depositions by defendants, and excluded an appeal to the common law for the introduction of' examining trial evidence on behalf of the State. The question was thoroughly discussed, and it was held that said statute did not even confer a new right upon the defendant, but merely placed in positive form a right which he already possessed, and left the rights of the State in the same condition as before its passage; and that the right to reproduce the testimony of a witness taken on an examining trial, and since deceased, was a right possessed by the State at common law; and the rules at common law, being authoritative in this State, when not in conflict with the provisions of the Code, could be appealed to here. See, Code Crim. Proc., 1895, Art. 763. And the court, further discussing the statutes of Philip and Mary on the subject of examining trial evidence, substituted by 11 and 12 Vict., quoting from Mr. Archibald, uses the following language: "Although the statutes relating to the examination of witnesses against a prisoner before a Justice of the Peace previously in force contained no such express enactment as the above, it was yet determined in many cases, and recognized as a rule of law, that in all cases of examinations of witnesses in cases of felony, under these statutes, where they were taken in the presence of the accused, and he had the opportunity of cross-examining them, the deposition of any such witness might be read in evidence against the accused on his trial in case the person who made the deposition was dead." See, also, 1 Bishop's Crim. Proc., § 1093. And Coleridge, Judge, says: "Before the enactment of 11 and 12, Vict., Chap. 42, I always understood the law was that, if a witness was absent by reason of death, the deposition was receivable in evidence against him," — citing, Reg. v. Scaife, 2 Denison, Crown Cas., 281-286, 17 Q. B., 238. The *Page 369 evidence in said case was held admissible. Kerry's case was decided by this court in 1884, after the enactment of Article 814, and construed said article to authorize the introduction of examining trial evidence, stating, however, that the legislature, in said article, had used the word "deposition" by mistake for the word "testimony" or "evidence." In the latter observation, however, I do not concur, but believe it was the proper term. The word "deposition," in its broadest sense, is defined to be "the evidence of a witness taken down in writing, and sworn to before an officer." See, 5 Amer. and Eng. Ency. of Law, 581. "In procedure, 'depositions,' in the most general sense of the word, are the written statements, under oath, of a witness in a judicial proceeding. It is in this sense that the term is used when we say that, where a witness is dead, his depositions at a former trial are admissible in evidence on a subsequent trial between the same parties." See, 1 Rap. and L. Law Dict., 376, citing Pow. Ev., 183. Mr. Roscoe, Mr. Wharton, and Mr. Phillips all treat examining trial evidence under the head of "Depositions." Examining trial evidence was called a "deposition," and it does not matter that depositions were unknown to the common law. If we get the name "deposition" applied to examining trial evidence, then we have authority for our legislature to so term such testimony.
I do not deem it necessary to enter into a discussion of Article 814, in connection with the other articles of our Criminal Code of Procedure regarding depositions; in order to show that said Article 814 was not intended merely to be supplementary to the statutes authorizing depositions for defendants, but is an independent statute, authorizing the use of depositions for the State. A reference to said article and to the other articles of the Code, I believe, will clearly demonstrate this. Judge Hurt, in Post v. State, decided in 1881 (see, 10 Tex.Crim. App., 579), stated the correct rule which would govern in cases where the evidence had been taken before an examining court, to-wit: "If the deposition is taken before an examining court or a jury of inquest, and is reduced to writing, and certified according to law, and the defendant was present when such testimony taken, and had the privilege afforded him of cross-examining the witness, and, since the deposition was taken, the witness has died, or has removed beyond the limits of this State, or has been prevented from attending the court through the act or agency of the defendant, or by the act or agency of any person whose object it was to deprive the defendant of the benefit of the testimony, or if, by reason of age or bodily infirmity, such witness cannot attend, the deposition is admissible. This rule has reference to depositions taken before examining courts." In Kerry v. State, supra, the construction of this statute (Article 814), was settled in a clear and convincing opinion.
I would further suggest, in this connection, that said article was enacted in 1878, was construed in 1881 and 1884, and, when it was re-enacted in 1895, came to us with a definite and fixed meaning and construction, and included in that construction examining trial evidence. Said article marks the only contingency in which the actual presence of *Page 370 the witness is dispensed with on the trial, and is based on Article 25, which requires the accused to be confronted with the witnesses against him in all trials, except where depositions are authorized. This article is held in accord with the Constitution, upon the theory that the Constitution requires it confrontation of the witness with the accused in every criminal prosecution, and that this is satisfied when the witness, at any stage of the prosecution, has confronted the defendant, and been examined as a witness before a competent tribunal, and the defendant has had the privilege of a cross-examination. In all other cases there must be an actual confrontation of the accused by the witness; but, when lie has once confronted the accused, what he shall testify is regulated by the rules of evidence. Both, upon reason and authority, it occurs to me that examining trial evidence is a deposition, and that it is admissible on a subsequent trial of the defendant, where it is shown that the witness making the deposition has since died.
Recurring to the interpretation of our constitutional provision on the subject of confrontation of the accused by the witnesses against him, in my judgment it is immaterial how this interpretation grew up or came about. Whether founded upon necessity, like a great many rules of evidence, which appear to be exceptions to general rules, or whether, in accordance with the provision of the Constitution, it was construed that, the witness once having confronted the accused, and been subjected to a cross-examination, the constitutional provision was satisfied, or whether the Constitution merely proposed to require a confrontation of the accused by the witness, but did not propose to regulate what the witness should say when once confronted, but left this to the rules of evidence, is now of no importance. It has become the settled law of the land, and to uproot or destroy it, it occurs to me, will be fraught with grievous results. This construction of the Constitution, in connection with the rules of evidence, has the sanction of the great lawyers and of great jurists, both in England and in this country, whose decisions form an unbroken current in support of the rule we have adopted. It has been found efficacious in the past, enabling courts to preserve and perpetuate testimony against great criminals, and bring them to justice. It is comparatively easy recently, after an offense has been committed, to bring the witnesses together, and, on a preliminary hearing, procure their testimony, and reduce it to writing; and in such case the witness has confronted the defendant, and he has had the privilege of a cross-examination upon all the points of the witness' testimony; and to hold that after the witness has so testified, if, on the nest day, he should die, and the State should not be permitted to use his evidence, taken under all of the formalities and sanctity of the law, would be to authorize in many cases the escape from punishment of persons guilty of crime. It would be resting the administration of the law upon a very brittle thread, and it would be an invitation to criminals themselves to dispose of the testimony against them. There is too much at stake in the conservation of life and property to deal lightly with this subject. If the contrary rule *Page 371 shall prevail, and it shall become the law of this State that examining trial evidence of a deceased witness, or parol evidence given by a witness on a former trial of the case, said witness having since died, cannot be used on a subsequent trial against a defendant, it will not only revolutionize our criminal jurisprudence, but it will be letting down the barriers in favor of criminals, when our Code requires our laws to be liberally construed, in order to suppress crime and bring offenders to justice. If it was important in the early days to preserve this character of evidence, it is equally as important now. Moreover, the same argument so ably and strenuously urged by a majority of this court why this testimony should not be admitted clearly goes to the exclusion of all hearsay testimony, and especially of dying declarations. The same logic by which the result is reached in the one case is also applicable in the other. By our statute, dying declarations are made admissible testimony; yet this is not a confrontation of the witness, in accordance with the construction insisted on by the court. The dead man cannot speak, and cannot confront the defendant; yet, from time immemorial, he has been permitted in the courts, both in England and America, to tell the jury, through the mouth of another (who heard his dying declarations), who killed him, and the circumstances attending the homicide, and often this character of evidence has brought the murderers to justice. It is conceded to be hearsay evidence, but it is admitted on the ground of necessity. It is without an oath, and not made in the presence of the accused, and not subjected to cross-examination. It is admitted as an exception to the general rule of evidence, but the exception is as well recognized as the rule itself. If the opinion of the majority of the court in this case is to become the law of the land, then we are all wrong in admitting this character of testimony. We must exclude dying declarations, because such evidence violates the Constitution. If, on the other hand, we cling to the rule heretofore laid down — that the Constitution in criminal cases requires the witness to confront the defendant, but leaves to the rules of evidence what he shall testify to when he confronts him — the Constitution will be conserved, and we will have no difficulty in the admission of dying declarations. And the same rule will authorize the reproduction of the testimony of a dead witness in other cases. Let us be consistent with ourselves, and, by all means, "let us hold fast to that which is good," and let us not reach out after "new guaranties by judicial reconstruction" (if I may use the expression); especially when these new guaranties are violative of established rules and precedents, which, in the experience of the past, have been found to work for the good of society, and to conserve life, liberty, and property. If, however, the established construction of this provision of our Constitution is to be overturned and trodden under foot, I will utter my protest, and I will set up, as I have endeavored to do, the ancient landmarks of our jurisprudence. If they do not direct our footsteps now, happily they may serve as beacon lights in the future, to guide those who may come after us back into the true path. My brethren *Page 372 have said, "Nothing is settled until it is rightly settled;" and I say that the right was never yet unsettled that it did not struggle to its own again. "Truth crushed to earth will rise again. The eternal years of God are hers."