dissenting. I respectfully dissent from the opinion and judgment of the Court in this case.
I do not think the paper signed by Fred Wright, and witnessed by “S. Spillman,” was properly admissible in evidence against the defendant upon the trial. It is dated the 28th oi December, 1882, some months before the trial. It has no jurat nor authentication by any certificate or endorsement. The State had proved that Wright was present and had testified on the examination for commitment, and that the defendant was present and had the opportunity to cross-examine. It had further proved by A. Spillman, that he had taken down for the Justice the testimony of the witnesses in said examining court, and that the paper was the testimony of Wright, as he gave it, and as it was reduced to writing by the witness Spillman. It was further proved that defendant, in the examining court, was represented by attorneys, and that Wright resided in Texas and could not be found.
There is no provision in the law for depositions of witnesses to be used against a prisoner “on his trial” upon indictment, and upon the issue of guilt or innocence. In no other sense is the word trial used in the Constitution, with reference to criminal matters. It is there that he has the constitutional right “to be confronted with the witnesses against him.” I have never been satisfied with the decisions of this Court, or any other, under similar constitutional provisions, which have held it sufficient that the prisoner may, at some other time or place, have had an opportunity to cross-examine the witness, when it was not his duty to answer at all. He is never required to answer unless presented or indicted. Constitution 1874, Art. 2, Sec’s. 8 and 10. His right goes beyond the mere opportunity of cross-examination afforded out of court. He has tfie right to have the witness stand before him, face to face, upon his trial, in the presence of his peers, and to have them observe the moral effect of this confronting. If a paper, taken down by what, after all, is a mere by-stander, and which is, in effect, mere notes of evidence, attested by no jurat,, and authenticated by no officer — a paper not required by law to be made by any one — if that be admissible in evidenee, upon the testimony oí the one who made it, that it is a correct report, then we are drifting far away from all constitutional protection. It would be better and safer to' disregard the eonstitional guarantees altogether, and allow the State to take depositions in criminal cases. The proceedings would be attended with more formality and caution, and an accused person might have time to prepare a well-considered cross examination. I do not think the paper in question had a single evidentiary feature, as a document. If Spillman had undertaken to testify from his own recollection what Wright had formerly testified, the case would be more in accord with the case of Shackelford v. The State, but I am free to say that I am and have been always dissatisfied with the doctrine of that case, and hope to see our rulings brought more into harmony with the true spirit of the Constitution. I do not think “certainty of conviction” the proper aim of criminal practice. I think it is a much more important, objeet to give every citizen assurance that he will not and cannot be convicted unless upon clear proof, beyond a reasonable doubt, upon proper indictment, and with the due protection of all the guarantees of the Constitution. That is simple freedom and nothing else is.
In the next place the proof is beyond question that during the whole trial the jury were indulging in the free and unlimited use of intoxicating liquors. Laying “Red’s” testimony altogether aside, although I think it has some confirmation, there is more than enough to be shocking to one who appreciates the importance and solemnity of the duty which this jury was called upon to perform. Concede that they are good men and citizens, and that they were in-corrupt, and that they were wholly uninfluenced by any interference of others — all of which is shown, in exculpation, yet the fact remains that they were drinking, and that heavily, as most men would suppose, from the number of times the drinks were repeated. I would lay no great stress upon the fact, if it stood alone, that they took their meals at a restaurant where liquors were furnished at the table, and finding them there, partook moderately during meals. Even that would, in their responsible position, have been imprudent, but it is not incompatible with a thoughtful and earnest consideration of the law and evidence in a case affecting life or liberty. But there was much beyond that. Liquors were ordered from an adjoining bar. The jury visited bars in a body, and drank repeatedly, as much, one witness says, as five times in one night. They visited the theatre also, and one of them kept a brandy flask in the jury room, from which it is said others were allowed to partake. And all this without the permission, or, as we must presume, knowledge of the Court.
The Court below refused the new trial because the bailiffs in charge and the jurors themselves testified that none of them seemed under wy, undue influence of drink. The facts as to the drinking are nowhere denied. The Hon. Circuit Judge was authorized to exercise his judgment, based upon the ordinary course of things in nature as shown by observation, and I think was mistaken in taking the exculpatory statements of the bailiffs and jurors as establishing conclusively that they were not affected by liquor. Doubtless they all supposed they were not, as they had not been drunk. But it is well known that ardent spirits at a point much short of external demonstrations of intoxication, cloud the judgment or render it hasty and impulsive, destoying the capacity for patient thought; excite the emotional parts of our nature, and unfit the mind for that cool weighing of evidence and clear apprehension of instructions, which áre so important to those who hold the scales in which are balanced the chances of life or death, or long inearcetation with labor, shame and disfranchisement.
This Court, and we believe all other Courts, have been in the habit of disapproving such practices. But that amounts to nothing practical. “ Brutem fulmen.” It is a mere tribute to virtue. It is time that should stop, and the disapprobation take shape and bear fruit in the severe punishment of the bailiffs who permit it and jurors who practice it, and in setting aside verdicts thus rendered. It is a contempt of Court in the highest degree, and tends to the destruction of all confidence in judicial proceedings. Eor myself I cannot appreciate the importance of certainty of conviction, unless it be on satisfactory proof, to be weighed by cool heads, and hearts .beating with calm, normal emotions. Bailiffs and others who are not pschycological experts, might be mistaken in their judgment as to the effect of limited quantities of whiskey upon the reasoning faculties. It is unsafe. Liquors should not be permissible to jurors at all, except in individual cases of sickness, and should then be furnished only under the directions of the Court, with safeguards against abuse. It is not prudent to allow a juror, subject to colic, to send for brandy at his pleasure, as one of these jurors did, and to treat his fellow-jurors, as is charged and not denied.
I am very clearly and earnestly impressed with the conviction that there should be a new trial in this cause.