Upon motion for rehearing the affirmance was set aside and a reversal had in regard to cross-examination of appellant's wife. To this I agree, but I wish, however, to express my dissent from that portion of the opinion in which it is asserted it is not error to reproduce the testimony of the absent witness. The evidence reproduced was taken before the examining court, the witness being shown absent from the State at the time of the final trial. In Cline v. State, 36 Texas. Crim. Rep. 320, the writer discussed the question at considerable length with reference to reproducing the testimony of a deceased witness, holding it could not be done under that clause of the Constitution which guarantees the right to the accused to be confronted with the witnesses against him. My brethren have overruled the Cline case, stating practically that it is a universal rule to reproduce the testimony of a deceased witness. At page 312, Ency. of Evidence, it is stated that the tendency of the early decisions was greatly to limit or wholly to deny the admissibility on the final trial of evidence of a witness who could not be produced at the trial when his evidence had been given at a preliminary examination of the accused. Citing among other cases in support that of Finn v. Com. 5 Rand. Va., 701. In that case, among other things, it was *Page 86 said: "In civil cases if a witness who had been examined in a former trial between the same parties and on the same issue, is since dead, what he swore on the former trial may be given in evidence, for the evidence was given on oath, and the party had an opportunity of cross-examining him. Peake 60 Phill., 199. But we cannot find that the rule has ever been allowed in a criminal case. Indeed, it is said to be expressly otherwise. Nor can we find that the rule in civil cases extends to the admission of evidence formerly given by a witness who has removed beyond the jurisdiction of the country. Much less can it be admitted in a criminal case." Also see Brogy v. Com. 10 Gratt 722; Montgomery v. Com. 37 S.E. Rep. 841. These are Virginia cases. In People v. Newman, 5 Hill N.Y., 295, the court said: "It seems to be well settled in this court that nothing short of the witnesses' death can be received to let in his testimony given on a former trial, but if the rules were otherwise in respect to civil cases we are of the opinion that it should not be applied to criminal proceedings." It was also the rule in Tennessee until changed in the opinion in Kendrick 10 Hump., 479, rendered in 1850, which overruled State v. Adkins, 1 Overt. 229. It seems to have been as well the rule in Missouri until the decision of McO'Blenis, 24 Mo., 402. This decision was rendered in 1857. The case of Montgomery v. Com. 37 S.E. 841 was rendered in February, 1901. It is unquestionably true that the earlier rule excluded the reproduction of the testimony of all witnesses, whether dead or alive. Such was the rule practically in the history of the past until the acts of Parliament in England. On a certain occasion the Jews sought to have the Apostle Paul brought to trial. The old Roman judge stated with absolute confidence and without contradiction that it was the custom of the Romans not to try parties until they had been brought face to face with their accusers. The vast assemblage of the accusing Jews entered not a dissent to this statement of the Roman judge. It was too well settled as a law in the Roman Empire to bear contradiction. The Jews as well had been so instructed and taught under the laws of Moses, and from that time down the ages it was the rule and wherever the jurisprudence of the past has touched the Anglo-Saxon civilization it has been the well recognized rule until statute changed the rule in England. Under the common law it may be, I think, safely stated, that it was an impossibility to reproduce such testimony in a criminal case, the reasons for which will be found by an investigation of the history of that great body of law. This was so well recognized in England that it took statutes at intervals covering perhaps two hundred years to abrogate. The first act was passed by Parliament authorizing the reproduction of testimony of dead witnesses. Years afterwards another statute was added permitting the reproduction of evidence of witnesses who had become insane, and then followed still another statute, to wit: where the witness was kept away by the adverse party, and finally the reproduction was admitted when the witness was too sick to ever be able to be present at the final trial, or was permanently beyond the realm. These were statutory *Page 87 innovations, and it took in the neighborhood of two hundred years to engraft these exceptions upon the rule at common law inhibiting the reproduction of testimony. Even under the statute the reproduction of testimony was inhibited in cases of treason. The statute of England, with reference to treason, in this connection, used practically the same language as adopted in our Constitution, and thus compelled the confronting of the accused with the witnesses against him when the party was on trial for that offense. Many expressions occur in the opinions in the United States to the effect that it was the rule at common law to reproduce the testimony of a dead witness, and even some of the opinions have gone far enough to hold that it was a rule at common law to reproduce the testimony taken at an examining trial. Suffice it to say that depositions were unknown to the common law, and it may be further satisfactorily stated that depositions are never taken except under statutory authority. Therefore, this rule could not have existed at common law. In the United States it has been stated that such reproduction was a rule of evidence at common law, and especially so with reference to the evidence of a deceased witness. An examination of the history of the question will show that such was not the case when speaking of the common law proper. So in these States where this rule has been announced doubtless an inspection, especially the history of the earlier States, will show that the Legislatures of the respective States have adopted many of the acts of Parliament, and in some, all acts of Parliament have been adopted to a certain period. Some of these States adopted all acts of Parliament down to 1688 as common law. The different States vary in fixing the time when the acts of Parliament should become common law, some of them bringing it down even as late as 1776. It can be seen then very readily why the decisions in those States speak of the reproduction of such testimony as under the common law. It will be ascertained, I rather think, if an investigation of the jurisprudence of those States should be made, that the decisions had no reference to common law, properly speaking, but to the statutes adopted as common law. So, there is no question, in the opinion of the writer, that the earlier rule, as far back in history as the Jewish and Roman civilization, was that the accused must be confronted with the witnesses against him. The modern rule, however, has been adopted, and it has been done, as intimated, not by adhering strictly to the truth of the history of the question, but by reason of the statutes mentioned, reinforced by the rule of necessity. It would hardly be contended by any student of our jurisprudence or that of England, from which we have largely borrowed, that prior to the acts of Parliament, it would be asserted that at common law the testimony of the dead or absent witness could be reproduced. In Texas we have not adopted the acts of Parliament, but only the common law as such, properly speaking. So much for the question with reference to the reproduction of evidence generally and of the testimony of the deceased witness specially.
The decisions in regard to the reproduction of the testimony of an *Page 88 absent living witness is far from being harmonious or unanimous. The contrary rule finds support in a great many authorities, and it is more than difficult to say which is the prevailing rule. Some of the cases which deny the rule are here cited: People v. Newman, 5 Hill N.Y., 295; Finn v. Com., 5 Rand., 701; Brogy v. Com., 10 Gratt., 722; State v. Houser, 26 Mo., 431; Collins v. Com., 12 Bush., 271; Pitman v. State, 92 Ga. 480; United States v. Angell, 11 Fed., 34; Owens v. State, 63 Miss. 450; and Motes v. U.S., 178 U.S. 458, et seq. Some of the cases hold that to receive the evidence of a witness who was merely absent is violative of the constitutional right of the accused to confront the witnesses against him. In the majority opinion the intimation is that when Texas became a Republic and subsequently a part of the Federal Union, our Bill of Rights requiring the accused to be confronted with the witnesses against him was copied or taken from the Constitutions of other States, and, therefore, when adopted, it was with the construction placed upon it in those States. This perhaps is a little difficult of historical confirmation, especially as it is not settled from which State Texas copied her Bill of Rights. Texas became an independent Republic in 1836, and was admitted into the Federal Union in 1845. At the time of our adoption of the Bill of Rights, many of the States, if not a majority of them, had not adopted the later rule of reproducing such evidence, but were operating under the old rule which excluded such reproduction of evidence. As before stated, in Missouri, the rule seems to have been otherwise until 1857, as I understand the McO'Blenis case, supra. So it was in Tennessee until 1850, and it seems that it was not only so in Virginia then but is still the rule as well as perhaps in Georgia as to absent witnesses. And it seems that under the cited cases it is so in Mississippi as to the absent witness. That the jurisprudence of Tennessee and Missouri entered largely into the general make-up of the organic law of Texas may be relied upon with some degree of confidence by reason of the fact that those States furnished some of the great founders and statesmen who carved out Texas Independence, gave her a national existence, and contributed largely to her statesmanship, as well as to her legislation and jurisprudence. The Austins and the Bryans hailed from Missouri, while Crockett and Houston came from Tennessee. However, I do not propose to enter into the history of this question, or of the great men who made our constitutional laws as well as our jurisprudence. I mention these matters to especially call attention to the fact that the rule was more than doubtful even in regard to the deceased witness at the time of the formation of the organic law of the Republic of Texas as well as of the State of Texas. The rule was not known in Texas jurisprudence until after the war between the States that the testimony of a deceased witness could be reproduced. Greenwood v. State, 35 Tex. 587. The intimation in that opinion is that it was necessary to so hold in order that the defendant might have the benefit of reproducing such testimony. Of course, this holding would not be correct inasmuch as the constitutional inhibition only applies to *Page 89 witnesses against the accused; not to those in his favor. It is, however, correct that the almost unbroken line of authorities in Texas since the Greenwood case sustains the rule authorizing the reproduction of such evidence.
From Montgomery v. Com., supra, I make this quotation: "Referring to the opinion in the Finn case, 5 Rand., 701, he says, after stating that in civil cases where the witness is since dead, what he swore on a former trial may be given in evidence, the judge proceeds, `But we cannot find that the rule has ever been allowed in a criminal case. Indeed, it is said to be expressly decided otherwise, and all the judges concurred in the opinion that the evidence was inadmissible. This decision has never been controverted in Virginia since. The whole criminal code has since undergone a revision, but the rule as laid down in the Finn case has been acquiesced in by both the court and Legislature. I do not think it necessary, therefore, to go into an inquiry whether the rule was originally founded on proper principles or not. The rule has been established and recognized and I think should be adhered to, and whether a foundation had been laid for its introduction or not, the evidence was properly excluded.'" In Motes v. U.S., supra, the Supreme Court of the United States, through Justice Harlan in regard to absent witnesses, said: "We are of opinion that the admission in evidence of Taylor's statement or deposition taken at the examining trial, was in violation of the constitutional right of the defendants to be confronted with the witnesses against them. It did not appear that Taylor was absent from the trial by the suggestion, procurement or act of the accused. * * * In Reynolds v. U.S., 98 U.S. 145, which was an indictment for bigamy, committed in Utah * * * the trial court admitted proof of what a witness had stated on a former trial of the accused for the same offense but under a different indictment. This court said the Constitution gives an accused the right to a trial at which he should be confronted with the witnesses against him, but if the witness is absent by his own wrongful procurement he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him, but if he voluntarily keeps witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated." In that case reference was made to several authorities, American and English, and the court further said, "The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong, and consequently if there has not been in legal contemplation a wrong committed, the way has not been opened for the introduction of the testimony. * * * In Reg. v. Scaife, 2 Den. C.C., 281, it was held by all the judges that the depositions were not admissible against the defendant who had not caused the absence of the *Page 90 witness. Lord Campbell, C.J., said, `I am of opinion that the rule for a new trial must be made absolute; after having been given, the defendant Smith has resorted to a contrivance to keep the witnesses out of the way, the deposition was admissible against him, but it was not admissible against the other defendants, there being no evidence to connect them with the contrivance. The learned Judge Cresswell, J., in summing up the jury seems to have made no distinction as to the duty of the jury to consider the deposition of the absent witness as evidence against the defendant Smith alone and not as against the others. The question then is, whether such deposition is admissible against a prisoner without proof that the witness has been kept away by his contrivance or without proof of the death of the witness. No case has yet gone so far and I should be afraid to lay down a rule which would deprive a prisoner of the advantage of having the witnesses for the prosecution against him examined and cross-examined before the jury upon every matter that may be material to his defense. I, therefore, think that the deposition was improperly admitted against Scaife and Rooke, and that there should be a new trial." This opinion was delivered on May 21, 1900, by the Supreme Court of the United States through Justice Harlan, one of our greatest jurists.
I have seen proper to say this much, realizing that for the present it may be useless, but I am so firmly convinced that neither the courts nor the Legislature nor both combined are at liberty, or entrusted with authority, to either overturn the plain language of the Constitution or engraft upon its plain reading rules of necessity to meet untoward contingencies or inconveniences. If the rule of necessity is to be the criterion by which the Constitution is to be modified or changed either by legislative enactment, decisions of courts or both, then this rule can be at the will of the dispensing or construing power enlarged without limit. I wish to reiterate that there is no power under our form of government invested with authority to change constitutional provisions, except those who ordained the Constitution, and no emergency can become sufficiently urgent to authorize either or all departments of government combined to engraft any rule of necessity upon the plain reading of that instrument, which is in the least a subversion of its provisions.
In closing I desire to incorporate in this opinion the following language found in the 10 Am. Crim. App. at page 249, which is well worthy of careful perusal, thoughtful consideration and perpetuation, and so well accords with the views of the writer that he takes the liberty of reproducing it verbatim:
"In all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him. What was the aim and object of this declaration found in the sixth amendment of the Federal Constitution, a counterpart of which is embodied in the Bill of Rights, in the Constitution of every State in the Union? Does it mean that if the accused be confronted with the witnesses against him at a preliminary hearing, or coroner's inquest, that the statements given in *Page 91 evidence on such a rehearing or investigation may be given in evidence at the trial should it appear that the witnesses were dead or had gone beyond the seas? Not at all. Such a holding would virtually eliminate all of the declaration from the Bill of Rights.
"Under such conditions how could the traverse jury discern the demeanor of the witness when on the stand? The paper testimony would not reproduce before the jury, the facial expressions, the halting and changing of voice, the forced self-assertion and abandon, which so markedly reveal the character of the witness when testifying, and constitute almost unerring indications of the truth or falsehood of his testimony. History, reason and the philosophy of the law, verify the force and correctness of the conclusion that the aim and object of this declaration is to secure to the accused the right to be brought face to face with the witness testifying against him, before that jury which is the arbiter of his right to life or liberty.
"Before reviewing some of the historic incidents which the framers of the Constitution most likely had in mind when they penned this declaration of right, let me here solemnly admonish judges, especially of courts of review, to cling closely, with jealous care, to the landmarks of the Constitution, and to hold it their bounden duty to see to it that no person, however humble, shall be denied any right or privilege guaranteed him by that instrument. My own experience and observation, at the bar and on the bench, in the trial of criminal causes, emphasize the truth of the assertion that notwithstanding the intellectual and moral advance of to-day over all the ages which have gone before, the danger of innocent persons being convicted to appease popular sentiments is just as great now as it was when every official held his commission from the king.
"How many times within the memory of us all have innocent men been indicted by a star-chamber grand jury, tried and convicted at the bar of public opinion through the powerful influence of the press, and who would have been sent to the penitentiary, perchance to the gallows, but for the timely interposition of friends or neighbors, through whose aid the victims were enabled to employ counsel to prepare their defense and establish their innocence.
"It is safe to assume that the fathers of the Constitution could not have been unmindful of the teachings of history, touching the star chamber and the inquisition, those tribunals of infamy and terror, before whom men were condemned to death upon the depositions and statements in writing from witnesses unknown to the accused, or by spurious confessions and admissions wrung from the prisoner by torture and terror.
"The inestimable value of the right to the accused of being confronted with one whose testimony is against him is most strongly illustrated in the sacred writings, as well as in the history of criminal jurisprudence. We are told that when Adam broke the Divine command he hid himself from the face of the Lord. After Peter denied the Christ, when the Lord turned and looked upon him he remembered the word of the Lord *Page 92 and Peter went out and wept bitterly (Luke, chap. 22, par. 61 and 62). Again in Acts of the Apostles, chap. 25, when Paul was a prisoner at Cesarea, King Agrippa visited Festus, the governor, and when the king had been there many days Festus declared Paul's case unto the king. `There is a certain man left in bonds by Felix, about whom, when I was at Jerusalem, the chief priests and the elders of the Jews informed me, desiring to have judgment against him. To whom I answered, "It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have license to answer for himself concerning the crime laid against him."'
"When affidavits were read to Mary, Queen of Scots, in prison, imputing to her great crimes, the unfortunate queen answered: `Who are the witnesses (for they were not even named to her); bring them before me and they will forswear their falsehoods when they meet me face to face.'
"In 1589 Philip Howard, Earl of Arundel, was tried for high treason, Gerard and Shelby being witnesses against him. These witnesses accused him of having offered up his prayers for the success of the Spanish expedition against England; Arundel declared that his prayers were only for the preservation of himself and fellow Catholics from the general massacre to which report had said they were doomed in the event of the Spaniards effecting the landing; then fixing his eyes upon Gerard and adjuring him to `speak nothing but the truth, as he must one day stand before the tribunal of the living God to answer for what he should then say,' he so daunted and disconcerted the witness that he lost his utterance and was unable to repeat his first assertion.
"Sir Walter Raleigh was convicted of high treason, chiefly upon the written statement of one Cobham, which he denied in a letter to Raleigh, but after reaffirmed in part in a letter to the lords, the evening before the trial. Upon the trial, Sir Walter Raleigh demanded that Cobham should be confronted by him; he appealed to the statute law and to the law of God, which required two witnesses; he even offered to abandon his defense if his accuser would dare to assert, in his presence, that he had ever advised any dealing whatever with the Spanish monarch. He demanded again that his accuser stand forth, and if Cobham dared to reaffirm a single charge before his face, he would submit in silence to his fate.
"It is unnecessary to multiply cases, for the whole record of each State trial is but the recital of judicial murders, planned by conscienceless and envious officials, and perpetrated through that inhuman system of jurisprudence which permitted affidavits, letters and depositions to be read in evidence against the accused.
"Judges, let me again admonish you to make the Constitution the touchstone of your official action." *Page 93