Will Blackwell and Robert Blackwell, brothers, were jointly indicted in Okaloosa County, Florida, in two separate indictments for the murder of M. M. Davis and his wife, Nancy Davis, and on May 7th, 1917, were put upon trial under the indictment charging them with the murder of Nancy Davis. During the course of the trial the defendant, Will Blackwell, escaped from custody, thereby necessitating an order of mistrial. After a'lapse of about three weeks he was recaptured, and on July'2, 1917, the defendants' were placed on trial for the murder of M. M. Davis, were convicted of murder in the first degree, and .sentenced to death, the case then went to the Supreme Court on a writ of error and was reversed (See 76 Fla. 124, 79 South Rep. 731) and a new trial awarded.
*712After the reversal of the case it was transferred to the Circuit Court of Bay County, Florida, where the defendants were again placed upon trial in the Circuit Court of Bay County, Florida, for the murder of M. M. Davis on the 17th day of December, A. D. 1918, and were again convicted of murder in the first degree and sentenced to death, and from this judgment defendants sue out writ of error.
Plaintiff in error contends' in the second assignment of error that the court erred in permitting R. A. Rice to act as bailiff for the jury sworn to try the case without requiring him to take a special oath. The record discloses the fact that the said Rice was a regular appointed deputy sheriff and that when designated to act as bailiff to the jury was called up by the jud'ge in the presence of the defendants and their counsel and admonished by the judge as to his duties while in charge of the jury. The record fails to show any improper conduct on the part of said Rice while in charge of said jury, nor is there any intimation by the defendants that there was, and even if it had been proper that he should have taken an additional oath to the one as deputy sheriff the failure to take such oath, would be harmless error and no grounds for reversal.
But we do not concede that where a sheriff or deputy sheriff acts as bailiff that any additional oath is necessary. This court in the case of Cato, a Slave, v. State, 9 Fla. 163, said: “It is not indispensable that the jury, In a capital case, should be committed to the charge of a bailiff specially sworn for the occasion. It is sufficient if they be put in charge of the Sheriff, or his deputy, who has taken the oath of office.”
*713Counsel in their brief cites the case of Nicholson v. State, 38 Fla. 99. Upon a careful reading of this case we find nothing in conflict with the authority above cited.
Another ground contained in the motion for new trial was that they (defendants) were not properly represented because tlieir attorneys became intoxicated during the trial. The only evidence relied' upon to maintain this ground is the affidavit of the two defendants, and there was a counter affidavit of eight or nine persons who were present in the court room throughout the trial denying the fact that the attorneys of the defendants were drunk during the trial, or under the influence of liquor. The judge who presided at the trial, and who had continual observation of said attorneys, after considering the affidavit presented' at the time of the motion for new trial, overruled the motion for a new trial, Avhieb he certainly would have granted had he believed that the defendants had not had a fair and impartial trial by reason of the intoxication of their lawyers. There is certainly no evidence in the voluminous record brought here oí any intoxication or lack of mental activities on the part of defendants’ counsel during the trial.
The third assignment of error as given in the .motion for new trial is as follows: “If you find that the defendants at or about the time the charge contained in the indictment was preferred against them fled to another place and that such flight was induced by the charge you may consider such flight in determining the guilt or innocence of the defendants. The flight is a circumstance to be considered by the jury as tending to increase the probability of the defendants being the guilty persons.”
Counsel contend that such charge as complained of the natural assumption of the jury would be that it was *714prima facie evidence of the guilt of the accused, and it might possibly be open to this- criticism if that were the entire charge. The charge complained of as erroneous must not be determined on as to its correctness by segregated parts, but as a whole. The charge complained of in its entirety meets the contention of counsel against it. The charge, in words, was as follows:
“If you find that the defendants, at or about the time the charge contained in the. indictment was preferred against them, fled to another place and that such flight was induced by the charge, you may consider such flight in determining the guilt or innocence of the defendants. The fact of flight as a circumstance to be considered by the jury as tending to increase the probability of the defendant being the guilty person. It does not give rise to a legal presumption may rebut any inference which may be drawn from such flight by proper testixnony which may tend to explain the same.”
The flight of a person accused of crixne raises no presumption of guilt, but is a circumstance that goes' to the jury to be Considered by them with all the other testimony and circumstances and! given such weight as the jux*y may determine it entitled to. The rule is that when a suspected persoxx in anj manner endeavors to escape or evade a threatened prosecution, by flight, concealment, resistance to a lawful arrest or other ex post facto indication of a desire to evade prosecution, such fact may be showix in evidence as one of a series of • circumstances from which guilt xnay be inferred. Whart. Grim. Ev. (9th ed.), Section 750, and citations. Carr v. State, 45 Fla. 11, text 16.
'The fourth and fifth' assignment's-'complain of the refusal of the judge to give ■ charges upon circumstantial *715evidence. From our view of this' case the State relied not only upon circumstances, but upon alleged confessions, and it would not have been error for the judge to have failed- or refused to have given any charge upon circumstantial evidence; but the judge did in the charge given upon his own motion fully and correctly give in charge law of circumstantial evidence and-it was not error to refuse to give additional charges when the substance of such requested charges had already been given.
“It Is not error to refuse to give instructions that have already been given substantially, though couched in different language.” Higginbotham v. State, 42 Fla. 573.
The sixth assignment of error is that the court erred in refusing to give the following charge requested by the defendants:
“Gentlemen of the jury, this has been and is a very notorious case and there has been more or less' excitement over It, and that feeling may possibly have crept into the trial to some extent, I am not saying that it has, but for fear that it has, and in an abundance of caution that nothing but justice may be done, I deem it my duty to instruct you and caution you against convicting the defendants or either of them through prejudice of witnesses who may have testified in this case; or upon insufficient evidence; to caution you that in your deliberations you should not be influenced one whit by what is commonly called public sentiment; nor should you be influenced by any act or actions of any officer or officers, if there be such act or acts, that .appear to be hostile to the defendants or either of them. In' other words, you must consider the evidence that has been given you on the witness stand, and that alone, in arriving at your verdict.”
*716The Court of its own motion had given the following charge: “A fair and impartial trial is absolutely essentisal to the due and proper administration of justice, and it is of prime importance that' this truth be constantly borne in mind, both by courts and juries. If the courts are to retain the respect and the confidence of the people and properly perform the important duties and exercise the great powers invested in them by the Constitution in accordance with its spirit and purpose and carry out and- perform the objects of their creation, they must obey the constitutional command respecting fair and impartial trials and give to every case submitted to them for decision due, careful and conscientious consideration, basing their judgment upon sworn, legal and credible evidence, uninfluenced by other extraneous considerations. In the administration of justice juries are entrusted with functions of supreme importance. They consider and weigh the evidence submitted, determine the credibility of witnesses, and find from the evidence the facts upon Avhich the court passes its judgment. In deliberating upon and endeavoring to reach a correct and conscientious verdict, the jurors are required by the law to be guidedl by the sworn evidence in the case to calmly and dispassionately weigh and consider it, uninfluenced by any impression or opinions respecting the guilt or innocence of the accused, and based entirely and exclusively upon such evidence.”
This charge covers substantially the requested charge and there was no error in the refusal to give the same.
The seventh assignment of error is based, upon the refusal of the judge to give the following charge: “I charge you that, an accomplice is one who participates in the commission of a crime as aider or abettor; any person *717who is connected with the commission of the crime charged, whether they directly committed the act constituting the offense or aided and abetted, counseled or assisted in planning its commission, and the law of this State is that the testimony of an accomplice should be received with great caution.” -
The judge of his own motion had given the following charge: “The State relies in part for a conviction upon the testimony of Will Boyd, an accomplice, and in part upon circumstantial evidence. You are instructed that an accomplice in crime is a competent witness against a co-perpetrator of the crime, and his evidence should be weighed by the jury, even though uncorroborated, and given such weight as the jury believes it entitled. If the testimony of an accomplice is corroborated by other testimony it should be entitled to greater weight than if uncorroborated. While the testimony of an accomplice should be received with caution, especially if uncorroborated, still it should not be rejected if not corroborated in every material statement, if the jury believe that it is entitled to any weight. The evidence of an accomplice should be received with caution, but you are the judges of the credibility of the evidence of the accomplice and you should give it such weight as you believe that it should have when taken and considered together with the whole evidence in the case.” This charge covers in substance the requested charge, hence there was no error in refusal to give the charge asked.
Assignments numbers eight, nine, ten, eleven, twelve, not having been argued, under the established rules of this court, may be considered á® abandoned.
An assignment of error not argued and. where a motion for new trial contains several grounds, only those argued will be considered.
*718“In order to merit consideration by this court assignments of error must be argued, unless the error complained of is so glaring or patent that no argument is needed to demonstrate it.
. “Where one of the assignments of error is based upon the overruling of the motion for a new trial, an appellate court will consid'er only such grounds of the motion as are argued.” Lindsey v. State, 67 Fla. 111. See also Smith, v. State, 65 Fla. 56; Revels v. State, 62 Fla. 83; Johnson v. State, 55 Fla. 41; Colson v. State, 51 Fla. 19.
This case involving human life we will depart from the usual custom and consider the eighth assignment of error based on the refusal of the court to give the requested charge on the defense of an alibi, which was as follows: “The defense of an alibi has been offered, which means that the defendant were not there when the crime charged was committed, and consequently did not do it. If from the evidence in this case you have a reasonable doubt as to the alibi, that is to say, whether the defendants were there or not, then you should give them the benefit of such reasonable doubt and' find them not guilty.”
The requested charge correctly stated the law of this case upon the question of the defense of an alibi; but if the requested charge was covered by other charges given, it would not' be error to refuse it. The court of its own motion had instructed the jury as follows: “The defendants under their plea of not guilty set up as a defense what is known in law as an alibi. An alibi simply means that the accused were not present at the time and place of the commission of the crime, but were at another place and, therefore, it was impossible for them to have committed! the crime. A defendant has the right to prove by *719competent evidence that he was not present and" could not have committed the crime, and if you believe from the evidence, or if you have a reasonable doubt from the evidence, that the defendants were not present at the time and place when M. M. Davis was killed, if you believe he was killed, then you must acquit them. The evidence of an alibi must cover the whole time when the presence of the accused were required. You must determine from the evidence whether the defendants proved that they were not there, or whether the evidence produced in your minds a reasonable doubt as to whether or not they were there. If, upon taking into consideration the evidence offered by the defendants to prove an alibi, with all the other testimony, you have a reasonable doubt as to whether or not they were there, you should find them not guilty. (The defense of an alibi is, of all other testimony, the most decisive when duly substantiated; but the evidence adduced in support of it requires to be minutely considered, and must be such as to rend'er it impossible that the crime could have been committed by the party who claims that he was not present and could not be guilty as charged).”
The requested charge was fully covered by the charge given by the court in that part of the charge not included within the brackets, and that part of the charge was correct on the defense of an alibi, and the only criticism of the charge that' could be made was by the addenda within the brackets. Was this sufficient to destroy the former part of the charge or mislead or confuse the jury . We quote from Words and Phrases. . Vol. 1, p. 298: .
“The defense known in law as an ‘alibi’ is that, at the time of the commission of the crime charged in the indictment, the defendant was at a different place, «o that *720he could,not have committed it. State v. McGarry, 83 N. W. 718, 710, 111 Iowa 709; State v. McGinnis, 59 S. W. 83, 88, 158 Mo. 105; State v. Hale, 56 S. W. 881, 882, 156 Mo. 102; State v. Taylor, 21 S. W. 119, 151, 118 Mo. 153; Commonwealth v. Webster, 59. Mass. (5 Cush.) 295, 319, 52 Am. Dec. 711; Savage v. State, 18 Fla. 970, 971; People v. Levine, 21 Pac. 631, 632, 85 Cal. 39; Wisdom v. People, 1 Colo. 170, 171, 17 Pac. 519, 522; Dunn v. State. 91 N. W. 646, 648, 118, Wis. 82.”
“An ‘alibi’ in law simply means that the defendant was not there; or, to state it more definitely, a defendant who sets up au alibi shows such a state of facts surrounding his whereabouts at that particular time as would make it practically improbable or impossible for him to have committed the offense charged. State v. Child, 20 Pac. 275, 276, 10 Kan. 182.”
We cannot commend as a model for clearness on the defense of an alibi the charge as given and think it would have been better to- have omitted the part enclosed in brackets. The judge after correctly charging upon the defense of an alibi by the words enclosed in brackets charged an abstract proposition of law — the definition of an alibi — and we cannot say that it wás so misleading or confusing to the jury as to constitute reversible error on the judge refusing the requested charge.
The thirteenth and fourteenth assignments of error are based upon the admission in evidence of the testimony in bill of exceptions of Harrison Davis and Saphronia Holmes as given at the former trial of this case upon the grounds that no sufficient predicate was laid for the introduction of such testimony. Dr. Porter Webb, a practicing physician, testified that Harrison Davis was prostrate in bed, due to inflammatory rheumatism, and that *721it might last indefinitely and make him an invalid; that Saplironia Holmes was sick and “.not able to come to court, and that if she had good luck it might be two weeks at least before she could get there.” The Doctor upon being asked by the court, “Do you think either of them will be able to get here in the next two weeks,” answered, “Oh, no; I don’t think so, Judge.”
From the testimony of these absent witnesses as contained in t'he bill of exceptions these witnesses had been at the former trial cross-examined at great length, and as further shown by the record in this case there were a great number of witnesses, both for the State and the defense, present at the time the case was called for trial and the defendant not showing or offering to show any further cross-examination of such witnesses. Under these circumstancnies ive can not say that there was any abuse of judicial discretion in permitting the admission of such testimony, and an appellate court will not reverse the discretion of the trial judge unless there is a manifest abuse of such discretion.
There is some diversity of opinion among the courts as to whether temporary absence by reason of illness of a witness will permit the use of his testimony given at a former trial, but we think that the weight of authority and the better rule is that it is a matter resting in the sound judicial discretion of the trial judge.
“Any physical incapacity preventing attendance in court, except at the risk of serious pain or danger to the witness, should be a sufficient cause of unavailability; and this has been almost universally recognized; by courts. Certain distinctions, however, have from time to time received special notice, (a) The duration of the illness need only be in probability such that, with regard to the *722importance of the testimony, the trial cannot be. postponed, (b) as to the degree of the illness, the traditional phrase, 'so ill as not to be able to travel,’ sufficiently indicates the requirements of common sense; and the ‘ability’ is to be considered with reference to the risk of pain or danger to the witness. That the illness should be such as to make it impracticable to take the witness’ deposition at his home has been said by one court to be the correct limitation; but this is certainly incorrect, for a deposition obtained from a person during illness could not be any better than his former cross-examined testimony or deposition, and would probably be much less trust-worthy. There is no reason why the application of the general principle in a given instance should ever come before a Court of Appeals; to the trial court should be left the determination of the existence of the necessity in a particular case.” 2 Wigmore on Ev. p. 1760 §1406, and notes.
‘‘MITCHELL, J., in Thornton v. Britton, 144 Pa. 130, 22 Atl. 1048: ‘The determination of this question in each case as it arises rests largely in the discretion of the court. On a trial for murder, for instance, the judge presiding would feel it his duty to enforce the attendance of a witness having knowledge of the crucial facts, even at some risk to the witness’ health or life; while in a civil action he might feel free to hold that a much smaller risk to the witness would be sufficient to excuse him from personal attendance.” 2 Wigmore on Evidence, § 1406, and note.
“It is obvious that the purpose of this Act is to permit the introduction in evidence of a bill of exceptions containing evidence adduced at a former trial, upon the reversal of a judgment rendered thereat, when certain evi*723dence given at such former trial cannot he had. In other words, provision was made for the -admission of the bill of exceptions when the testimony of a witness who had testified at a former trial could' not be had by reason of the death, sickness or insanity of such witness or by reason of the fact that he is 'out of the jurisdiction or cannot be found after diligent search. See the discussion in Putnal v. State, 56 Fla. 86, 47 South. Rep. 864.” Bennett v. State, 68 Fla. 494, text 498, 67 South. Rep. 125.
In the case of Putnal v. State, 56 Fla. 86, in the body of the opinion page 96 SHACKLEFORD, C. J., said: “Obviously, it is for the trial court to pass upon and determine whether or not a sufficient and proper predicate has been laid for the introduction of such former testimony. In the case at bar the trial court was of the opinion that such predicate had been laid, and, upon the showing made to us, we do not feel called upon to disturb the ruling. We fully appreciate the necessity of requiring a compliance with the rule in such cases and have no disposition or inclination for a relaxation of any of the safeguards that have been thrown around it.”
In the earlier days the testimony of a witness given at a former trial was confined to cases where the witness was dead or had become insane, or beyond the seas or the jurisdiction of the court, but the tendency of the modern decisions has been to enlarge the rule of evidence as to the admission of such testimony. Prior to 1893, Chapter 4135 Laws of Florida, the testimony contained in the bill of exceptions was not admissible in evidence but such testimony had to be proved by some one who was present at the trial and heard the witness testify; but by Section 1 of Chapter 5897, Laws of 1909. *724is as follows: “In case any judgment at law rendered by any court of the State of Florida shall be reversed and a new trial awarded, and it be made to appear to the' satisfaction of the court that any evidence used at the former trial, whether oral or written, and incorporated in the bill of exceptions, cannot be had, then the bill of exceptions taken at the previous trial may be used as evidence upon any subsequent trial of the case, as to any matter in issue at the former trial; Provided, that no evidence given upon a former trial of any case pending in any of the courts of the State of Florida shall be used in evidence upon the trial of any cause in any of the courts in the State of Florida, except as herein provided.”
Other States have adopted statutes upon this subject, but those that we have had access to have defined under what conditions such as absence from the State, permanent illness, death or insanity, and we have been unable to find any statute similar to ours which permits the introduction of such evidence used at the former trial when it is “made to appear that it cannot be had.” It seems from the broad language used that the legislative intent was to vest in the trial judge, a discretion under the circumstances of each particular case as to the admission or rejection of such former testimony contained in the bill of exceptions.
Ordinarily the court will not pass on the constitutionality of a statute unless the statute is expressly attacked as unconstitutional, but as there has been some discussion whether or not the objection to the admission of so much of the bill of exceptions as contained the testimony of the absent witnesses given at a former trial did not necessitate the passing upon the constitutionality iof *725Chapter 5897, Laws of Florida, 1909, which is as follows: '“In case any judgment at law rendered by any court of the State of Florida shall be reversed and a new trial awarded, and it be made to apepar to the satisfaction of the court that any evidence used at the former trial, whether oral or written, and incorporated in the bill of exceptions, cannot be had, then the bill of exceptions taken at the previous trial may be used as evidence upon any subsequent trial of the case, as to any matter in issue at the former trial; Provided, That no evidence given upon a former trial of any case pending in any of the courts of the State of Florida shall be used in evidence upon a trial of any cause in any of the courts in the State of Florida, except as herein provided.”
The writer of this opinion prior to the enactment of the amendment to this statute as a Trial Judge admitted over objection of the defendant testimony of a deceased witness, the chief witness for the State, taken upon a habeas corpus proceeding where the defendants charged with murder were represented by counsel and cross-examined this State witness. There was a conviction of manslaughter and upon appeal to this court the admission of such testimony was assigned as error, but not passed upon as the record of the case (not in the opinion) shows that it was not argued and was considered as abandoned. Bexley v. State, 59 Fla. 6, 51 South. Rep. 278.
“Because of the universal constitutional right of the accused to be confronted by the witnesses, it is absolutely necessary, in order that the testimony of a deceased or absent witness may be admissible at a subsequent trial against the accused, that the party against whom it is *726offered' should have had an opportunity of cross-examining him at the earlier trial.
“If the accused has once enjoyed his right to confront witnesses his constitutional right to meet the witnesses against him face to face is not violated by the admission of the testimony of such a witness, who is absent, at a subsequent trial. Hence, if the defendant was represented by counsel at the preliminary examination and has had an opportunity of cross-examining the witnesses, he has enjoyed his right to meet his accusers face to face, and no objection exists to receiving the testimony of deceased or insane witnesses.” Underhill on Criminal Evidence (2nd ed.) §265.
“In the United States, most of the Constitutions have given a permanent sanction to the principle of confrontation, by provisions requiring that in criminal cases the accused shall be ‘confronted with the witness against him’ or ‘brought face to face’ with-them. The question thus arises whether these constitutional provisions affect the common-law requirement of confrontation, otherwise than by putting it beyond the possibility of abolition by an ordinary legislative body. The only opening for argument lies in the circumstance that these brief provisions are unconditional and absolute in form i. e. they do not say that the accused shall be confronted ‘except when the witnes's is deceased, ill, out of the jurisdiction, or otherwise unavailable,’ but imperatively prescribe that he ‘shall be confronted.’ Upon this feature the argument has many times been founded that, although the accused has had the fullest benefit of cross-examining a witness now deceased or otherwise unavailable, nevertheless, the witness’ presence before the tribunal being constitutional*727lv indispensable, his decease or the like is no excuse for dispensing with his presence.
That this argument is unfounded cannot be doubted; and the answer to it may be in several forms: (1) There never was at common law any recognized right to an indispensable tiling- called confrontation as distinguished from cross-examination. There was a right to cross-examination as indispensable, and that right was involved in and secured by confrontation; it was the same right under different names. This much is clear enough from the history of the Hearsay rule (ante, § 13(54), and from the continuous understanding and exposition of the idea of confrontation (ante § 1395). It follows that, if the accused has had the benefit of cross-examination, he has had the very privilege secured to him by the Constitution.”
“In dealing with depositions and former testimony, our Courts have almost unanimously received them in criminal prosecutions, as not being obnoxious to the constitutional provision. The leading opinions were rendered chiefly between 1840 and 1860. Up to 1886, apparently the only contrary precedent not overruled ivas an early Virginia case, afterwards often cited, which professed to decide the question merely.on English precedents, and not on constitutional grounds, and proceeded on the authority of an earlier English treatise, which in turn went upon the authority of Fenwick’s Trial, — a parliamentary decision precisely to the opposite effect, and misunderstood by the writer of the treatise. This early Virginia ruling, of so little weight in itself, served, however, to keep a doubt alive; and in the last generation a few ill-considered rulings in other jurisdictions have followed it. Apart from these rulings, it is well and. *728properly settled that such evidence — assuming always that there has been a due cross-examination — is admissible for the State in a criminal prosecution, without infringing the constitution.”
“The question, then, whether there is a right to be confronted with opposing witnesses is essentially a question whether there is a right of cross-examination. If there has been a cross-examination, there has been a confrontation. The satisfaction of the right of cross-examination (under the rules examined ante, §§ 1371-1393) disposes of any objections based on the so-called right of confrontation.
“Nevertheless, the secondary advantage, incidentally obtained for the' tribunal by the Avitness’ presence before it — the demeanor — evidence—is an advantage to be insisted upon Av;herever it can be had. No one has doubted that it is highly desirable if only it is available. But it is merely desirable. Where it cannot be obtained, it need not be required. It is no essential part of the notion of confrontation; it stands on no better footing than other evidence to Avhich special value is attached; and' just as the original of a document {ante, § 1192) or a preferred Avilness {ant,e § 1308), may be dispensed with in case of unavailability, so demeanor-evidence may be dispensed Avith in a similar necessity.” Secs. 1397, 1398, 1396, Yol. 2, Wigmore on Evidence.
“It has long been a settled rule of evidence, as one of the exceptions to the general rule excluding hearsay, that the testimony of a witness given in a former action, or at a former stage of the same action, is competent in a subsequent action, or in a subsequent proceeding of the same action, where it is shown that such witness is dead, has *729become insane or disqualified, is beyond the jurisdiction of the court (that is, out of the State), cannot conveniently be found, or has been kept away by the opposite party, where it is also shown that the former giving* of such testimony was under oath, and that opposing party cross-examined, or was afforded an opportunity to cross-examine,- such witness. This rule has been generally applied in criminal causes, and has been held not to be in conflict with Article 6 of the United States Constitutional Amendments, providing that ‘in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him,’ nor in conflict with the State Constitution, such as ours (Article 6, § 7), which provides that ‘in all criminal prosecutions the accused shall have the right to meet the witnesses against him face to face;’ it being held that, where the defendant has once, at some proper stage of the proceeding, been confronted with and met such witness face to face, had cross-examined him, or been given the privilege to do so, the provisions of these Constitutions have been satisfied, and' that such evidence is not objectionable on that account. Elliott, Ev. § 503; Jones, Ev. § 339; Wigmore, Ev. §§ 1365-1395; 12 Cyc. Law & Proc. p. 543; 16 Cyc. Law & Proc. p. 1091; Mattox v. United States, 156 U. S. 237, 39 L. Ed. 409, 15 Sup. Ct. Rep. 337; Bishop, Crim. Proc. 1194; State v. Manion, 19 Utah 505, 45 L. R. A. 638, 75 Am. St. Rep. 753, 57 Pac. 542.” State v. Heffernan, 22 S. D. 513, 118 N. W. Rep. 1027, 25 L. R. A. (N. S.) 868
The case note in the above case is as follows:
“The objection generally raised to the admission at a tidal of testimony given at the preliminary examination, by a witness who cannot be produced at the trial, is that the accused person would thereby be denied the right *730guaranteed by the Constitution of the United States, and by the constitutional or statutory provisions in most of the statutes, of being confronted with the witnesses against him, which includes the right of cross-examination, it being contended that this right is denied unless the accused is actually confronted with the witness against him at the trial which is to determine his guilt or innocence. On the other hand, it is contended that the accused person is afforded this right if he has had the opportunity to .confront the witnesses against him, and subject them to cross-examination in the proceeding in which the testimony was taken, provided he was present as the party charged Avith the offense which was being investigated', and the offense there charged and the one being tried are substantially the same.
“This latter vieAV is taken by an ovenvlielming majority of the courts, but the real basis for the admission of such testimony seems to be the necessity for its admission to present the miscarriage of justice, and the instances in which it is admitted are in reality exceptions to (sometimes recognized as such by the court), rather than compliance Avith, the rule that the accused is entitled to be confronted with the witness against him.
“As to the effect of the admission of such testimony upon the rights guaranteed to an accused person by the Federal Constitution it was held in West v. Louisiana, 194 U. S. 258, 48 L. Ed. 965, 24 Sup. Ct. Rep. 654, affirming 109 La. 603, 33 South. Rep. 618, that the constitutional provision giving the accused the right ‘to be confronted Avith the Avitnesses against him’ does not apply in prosecutions in State courts and that the reading, according to the State statute, of depositions taken at the examination of a witness Avho has permanently removed from the *731State, does not deprive the accused of liberty without due process of law, pr violate any provision of the Federal Constitution.”
Section 11 of the Declaration of Rights of this State is as follows:
“In all criminal prosecutions the accused shall have the right to a speedy and' public trial by an impartial j ury, in the county where the crime was committed, and shall be heard by himself, or counsel, or both, to demand the nature and cause of the accusation against him, to meet the witnesses against him face to face, and have compulsory process for the attendance of witnesses in his favor, and shall be furnished with a copy of the indictment against him.”
Section 11 of the Declaration of Rights was not intended by the framers of the Constitution either to enlarge ór abridge the privileges or rights of persons accused' of crime, but to prevent the impairment of such rights or privileges by legislation as existed at common law.
“An important canon of construction is that constitutions must be construed with reference to common law, and although there is no common law of the United States in the sense of a national customary law, as distinguished from the common law of England, adopted by the several States, in interpreting the Federal Constitution recourse may still be had to the aid of the common law of England. It has been said that without reference to this common law the.language of the Federal Constitution could' not be understood. This is due to the fact that this instrument and the plan of government of the United States were founded on the common law as established in Eng*732land at the time of the Revolution. Phrases in the Bill of Rights taken from the common law, therefore, must be construed in reference to the latter.” 6 R. C. L. 53.
Having this rule of construction. before us we must determine what the common law was upon this subject of the right of the accused to meet the witnesses against him “face to face.”
“Our Common Law on the subject comes from two ancient English statutes, which were accepted as of common-law force in Pennsylvania, in Maryland, and' probably in the other States generally. They are 1 and 2 Phil. & M. c. 13, § 4, 5; and 2 and 3 Phil. & M. c. 10. By them, justices of the peace, committing or bailing one on a charge of felony, were to Take the examination of the said prisoner, and information of them that bring him, of the fact and circumstances thereof/ and reduce the writing The same or as much thereof as shall be material thereof to prove the felony/ and certify it to the court before which the further proceedings were to occur.” 1 Bishop’s New Crim. Proc. § 1198, p. 733.
Again the same author sums up the common law: “Epitomized is the common-law doctrine as to depositions before committing magistrates, taken under statutes like the former English ones, in the later 11 and’ 12 Viet. c. 42, § 17, thus: 'If, upon the trial/ it appears That any person whose deposition shall have been taken as aforesaid is dead, or is so ill as not to be able to travel, and if also it be proved that such deposition was taken in the presence of the person so accused, and that he or his counsel or attorney had a full opportunity of cross-examining the witness, then, if such deposition purport to be signed by the justice by or before whom the same pur*733ports to have been taken, it shall be lawful to read sueh deposition as evidence in such prosecution, without further proof thereof, unless it shall be proved’ that such deposition was not in fact signed by the justice purporting to sign the same.’ ” Sec. 1201.
“§1204. Constitutional — 'Face to Face.’ — The law, as expounded in the foregoing sections, is not in conflict with the constitutional guaranty, to an indicted person, of the right 'to meet the witness against him face to face.’ At his already explained opportunity to cross-examine them, he does or may thus meet them.”
It may be inquired did the legislature have the power by statute to prescribe that the testimony as set out in the bill of exceptions should be the exclusive manner of proving the evidence of a witness given at a former trial who is dead, insane or unable to be had. We answer this in the affirmative, there being no constitutional prohibition as we hold to the introduction of such testimony upon the ground that the witness did not meet the accused face to face, it is clearly within the power of the legislature to provide the only manner or mode in which the testimony of such absent witness could be shown.'
In the case of Sanford v. State, 143 Ala. 78, the court held that where the testimony had been taken- down in writing of a witness at a preliminary trial that it was error to allow the justice who had taken such testimony to testify as to what the witness had said. The law requiring the testimony of witnesses on a preliminary trial to be taken by a justice of the peace that the writing was the best evidence and in the head note to the above cited case stated the law to be “Where a magistrate, on the preliminary trial of a defendant charged with a felony, *734takes down in writing the testimony given therein by a witness he cannot, on the trial by a jury testify as to what such witness said on examination in the preliminary trial, as the written notes of his testimony is the best evidence thereof.”
We cite from the case of Jackson v. State, 81 Wis. 127, text 132, as follows: “In speaking of criminal cases, Mr. Cooley says: ‘If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party.’ Cooley, Const. Lim. (6th ed.) 387, citing numerous cases. The Attorney General cites numerous cases under similar constitutional provisions to the same effect.
“Of course, to be admissible, such former testimony should be established or identified with reasonable certainty. Here the stenographer testified,, in effect, that while he did not recollect the fact, yet he thinks he took down all the questions put to the witness, and his answers, and that he believed they were substantially correct. Counsel contend that this was not sufficient to authorize such admission, within the rule of Zitske v. Goldberg, 38 Wis. 216, and Elberfeldt v. Waite, 79 Wis. 284. In neither of those cases had such testimony been taken down by the official court reporter. In each it was taken down by a justice of the peace. In the former it was said by the present chief justice that ‘the minutes of testimony taken by a justice of the peace on a trial before, him are subjected to no such scrutiny (as in a bill of ex-*735eeptions), and possess none of these important and essential elements of verity. On the contrary, they are made in the haste and confusion of trials, generally by men who are quite unusued' to the business; and no power to make corrections after the trial is vested in any one. Hence the reasons for admitting such testimony when it is found in a settled case or bill of exceptions, entirely fail when the offered testimony is contained in the justice’s minutes.”
It is an elementary rule of evidence that the best evidence that the nature of the case permits should be resorted to, to prove a fact, and how any higher or better evidence of what a deceased or absent witness swore at a former trial can be produced than that contained in the bill of exceptions prepared by the defendant or his counsel and receiving the sanction and approval of the trial judge as being correct we cannot imagine.
We know of no better way of expressing our conclusion on the admissibility of such testimony in the manner prescribed by the statute than by quoting from the opinion in the case of United States v. Greene et al., 146 Fed. Rep. 787, text pages 799, 800 and 801, as follows:
“It is, hoAvever, urged that it is not competent in any criminal case to admit the testimony of a witness given on a previous trial unless the witness himself can be brought before the court. As tersely stated by the District Attorney, Mr. Akerman:
“ ‘The contention of the learned counsel would perhaps be better founded if the Supreme Court of the United States had not decided the precise question against him.’
“This decision is found in the Mattox Case, 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917. There two witnesses on *736a former trial, Thomas Whitman and George Thornton, had since died. A transcribed' copy of the reporter’s stenographic notes was admitted by the court and constituted the strongest proof against the accused. The accused were charged with the capital crime of murder. There it was insisted as here, that the constitutional provision, that the accused shall be confronted with the witnesses against him, was infringed by permitting the testimony of witnesses sworn upon the former trial to be read'. Said the Supreme Court, Mr. Justice Brown rendering the opinion:
“ ‘The idea that this cannot be done seems to have arisen from a misinterpretation of a ruling in the case of Sir John Fenwick.’
“This case was a parliamentary proceeding by bill of attainder. It was the last trial by bill of attainder among the English-speaking people. The charge was high treason. We gather from the luminous and brilliant pages of Macauley’s History of England that, though his offense merely comprised a plot for the assassination of that Monarch, but the King could not forgive a gross and public insult which Fenwick had offered the Queen, the beloved and amiable Mary. There, however, the witness had not died. The wife of the accused had spirited him away, and, notwithstanding the bitterness of the Parliament, with that high regard for law which has char-, acterized the English-speaking race, the testimony was excluded. But in that case there had been no opportunity for cross-examination on a former trial between the same parties. Nevertheless, the case misled' a writer on evidence to state that it was authority for the proposition that the testimony of a deceased witness cannot be used in a criminal prosecution, and it possibly had the *737same effect upon the learned counsel for the defendants in this case.
"The Supreme Court, however, had declared the rule in England to be clearly the other way, citing a number of notable precedents and an eminent text author. 2 Starkie on Evidence, p 20S. And, said the learned justice delivering the opinion as to the practice in this country, ‘we know of none of the States in which such testimony is boav held to be inadmissible.’ 'Certainly this, is true in our oaaui State. In that Code of our State which has made copious draughts, not only upon the English but the Roman Iuav, Avliose first and perhaps most illustrious codifier, that noble Georgia, T. R. R. Cobb, has left the people Avliom he loved a jurid'icial monument in its inestimable pages not less valuable to them than the Code Napoleon to the people of France, Ave find in Section 1001 the provision following, Avhich should satisfy the jurists and the people of this State:
‘The testimony of a witness, since deceased, or disqualified, or inaccessible for any cause, given under oath on a former trial, upon substantially the same issue and betAveen substantially the same parties, may be proved by any one who heard it and Avho professes to remember the substance of the entire testimony, as to the particular matter about which he testifies.’
"In some cases, recited by the Supreme Court in the Mattox Case Avhere Avitnesses who had testified on a former trial were not dead, but Avere out of the State, and for similar reasons the testimony has been excluded; but said the Supreme Court:
‘Upon the other hand, the authority in favor of the admissibility of such testimony, Avhere the defendant was *738present either at the examination of the deceased witness before a committing magistrate, or upon a former trial of the same case, is overwhelming.’
“There are, of course, grave reasons wherever it is possible that the witness who testifies against the accused should be present. These are recapitulated by the Supreme Court in the case just cited. But said that great tribunal:
‘But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying this 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 tbe preserved to the accused.’
“And in the same case it is further declared that:
'The substance of the constitutional protection is preserved' to the prisoner in the advantage he has once had of seeing the witness face to face and of subjecting him to the ordeal of a cross-examination.” ' -
“It adds that:
'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.’
*739See, also, U. S. v. Macomb, Fed. Case No. 15,702, vol. 26; Rice on Evidence, p. 345, et seq.; Starkie on Evidence, 409; Greenleaf on Evidence, 163; Roscoe’s Criminal Evidence, p. 66; Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244.
“There is a learned! discussion of the entire topic in Wigmore on Evidence, vol. 2, Sec. 3905 et seq., and many authorities cited, leading the learned writer toi the conclusion, as stated in section 1397, that such an argument as that presented by the counsel for the defendants is wiholly unfounded. The contention is utterly inconsistent with the exigencies of society, and reduced to its last analysis, might even exclude on the trial the dying declarations of the innocent victim of unprovoked and secret murder or unnamable outrage.”
For an interesting discussion of. the subject see 24 Mo. 402. See also 8 R. C. L., p. 88; 132 Wis. 509; 122 Am St. Rep. 989; 13 A. & E. Ann Cas, 969; 25 L. R. A. (N. S.) 868, 873; 125 N. W. (Mich.) 87; 16 Cyc. 1101; 68 Kan. 566; 1 Ann Cas. 468 Notes.
The constitutionality of Section 1, Chapter 5897, Acts of 1909, Section 1523, Compiled' Laws, 1914, is not argued by counsel for plaintiff in error, and its validity was expressly recognized in Johnson v. State, 68 Fla. 528, 67 South. Rep. 100; Coley v. State, 67 Fla. 178, 64 South. Rep. 751. The statute is as follows: “In case any judgment at law rendered by any court of the State of Florida slhall be reversed and a new trial awarded, and it be made to appear to the satisfaction of the court that any evidence used at the former trial, whether oral or written, and incorporated in the bill of exceptions, can not be had, then the bill of exceptions taken at the previous trial may be used as evidence upon any subsequent trial *740of the case, as to any mailer in issue at the former trial; provided, that no evidence given upon a former trial of any case pending in any of the courts of the State of Florida shall he used in evidence upon the trial of any cause in any of the courts in the State of Florida, except as herein provided.”
The Constilution in Section 11 of the Declaraiion of Rights provides that “In all criminal prosecutions the .accused shall have the right * to meet the witnesses against him face to face.”
“The object of this provision manifestly is to exclude testimony by «depositions, by requiring it to be given orally, in the presence of the accused, on the trial. The admission of testimony by depositions against the accused in a criminal cause would often afford the prosecutor great advantages over him, as Avell as furnish, at times, opportunities for abuses beyond the reach of detection by the defendant. Deprived of this right, the accused would often he without opportunity of cross-examination, without the means of seeing, hearing, or knowing the persons who testify against him, and without the advantage of an oral examination of the witnesses before the jury which is to decide upon his case. But important as this right is, as established .at common law, and secured by the Constitution, it has application to the matter of the personal presence of the witness on the trial, and not to the subject-matter or competency of the testimony to be given. The requirement that the accused shall be confronted, on bis trial, by the witnesses against him, has sole reference to the personal presence of the witnesses, and it in. nowise affects the question of the competency of the testimony to which he may depose. When the accused has been allowed to confront, or meei *741face to face, all the witnesses called to testify against him on the trial, the constitutional requirement has been complied with.” Summons v. State, 5 Ohio St. 325, text 340.
Where a defendant has been confronted with the witnesses against him in a former trial of the same cause, and an opportunity was afforded to the defendant to fully cross-examine the witnesses, the testimony given b.v witnesses on 'such former trial may be proved in the manner provided by law at a subseqnent trial a:s secondary evidence, if it is satisfactorily shown that the witnesses have since died, become insane, left the jurisdiction of the court, or is sick and unable to attend or to testify; and the admission of such evidence under the circumstances does not violate the organic right of an accused to meet the witnesses against him face to face. Hawkins v. United States, 3 Okl. Cr. 651, 108 Pac. Rep. 561; 2 Wigmore on Evidence, §§ 1397, 1406, pp. 1754, 1766.
As the constitutional right of the accused to meet the witnesses against (him face to face was under the authorities satisfied when he met the witnesses and was accorded full opportunity to cross-examine them on the former trial, the circumstances under which and the means by which evidence of the testimony of the absent witness given at the former trial may be adduced at the subsequent trial as secondary evidence, is regulated by the statute; and the circumstances of this case bring it within the statute, both as to the conditions under which and the means by which the secondary eaidence was adduced.
Even were we to concede that the testimony of a witness at a former trial could only be given under the conditions imposed by the common law and these conditions were continued; by the Constitution, such conditions arise *742when the witness is- dead, or insane, ór beyond the jurisdiction of the court or unable to travel, we think the evidence showed that the absent witnesses came under the last mentioned class of cases as shown by the testimony before the court as to their condition and- that this class is among those included in the rules of the common law on the subject.
Tlhe constitutional right to meet witnesses face to face is thus explained in 1 Greenieaf on Evidence, Sec. 163f: “The constitutional clause purported merely to adopt the general principle of the Hearsay Rule, that there must be confrontation, i. e. the power of cross-examination,, for infra-judicial witnesses; but it did not purport to enumerate all the exceptions and limitations to that principle. There were then a number of well-established exceptions, and there might be others in the future; the Constitution indorsed the general principle, subject to these exceptions; merely naming and describing it sufficiently to indicate the principle intended — just as the brief constitutional sanction for trial by jury did not attempt to enumerate the classes of cases to which that form of trial was appropriate nor the precise procedure involved in it, and) has always been construed as not absolute and universal in effect, but as subject to the limitations and unessential variations understood to accompany that institution. Thirdly (perhaps only as another aspect of the preceding reason), the constitutional requirement is limited to the mode of taking testimony at the trial; it does not prescribe what kinds of testimony shall be given infra-judicially, but only what mode of procedure — <t. e. not a secret or éx parte examination — ■ shall be followed for such testimony as by the ordinary and existing law of evidence is required to be given infra-judicially. Such is the better reasoning accepted by most *743Courts as here applicable. It follows that the constitutional requirement of confrontation is not violated by dispensing with the actual presence of the witness at the trial, if he has already been subject to cross-examination, or if his assertions are reecived under some recognized exception to the Hearsay rule.”
See 2 Wigmore Ev. Sec. 1397 and Notes.
The verdict is fully sustained by the evidence. Affirmed.
Whitfield and Ellis, J. J., concur. Browne, C. J., and Taylor, J., dissent.