dissenting: The testimony, as arrayed in the opinion of the Chief Justice, presents a case in which the enormity of the crime and the manifest guilt of the prisoner are well calculated to cause a Judge to hesitate to dissent from the judgment which brings merited punishment to the criminal. It is due to the learned and impartial Judge who tried the case, and I do not hesitate to say that he wisely exercised his discretion in declining to permit the witness *686Riggsbee to be sworn, provided it was a matter of discretion and not of absolute right.
I am impressed with the conviction that the conclusion to which the Court has arrived establishes a precedent in our criminal jurisprudence, violative of an essential and a most-valuable constitutional right secured to every person charged with crime. I am not inadvertent to the fact that notwithstanding the truth that a frequent recurrence to fundamental principles is essential to the preservation of liberty, we weary and become impatient of constitutional restraints upon government when invoked to secure to guilty persons trial according to “the law of the land.” Notwithstanding all of this, I am compelled to dissent from several propositions announced in the opinion of the Court.
The Bill of Rights clearly and unmistakably declares that, “In all criminal prosecutions, every man has* the right to be informed of the accusation against him and to confront the accusers and witnesses with other testimony,” etc. Without this guaranty to the citizen, when charged with crime, the right of trial by jury would be of no value, but rather a cunningly devised scheme for keeping the promise to the ear and breaking it to the sense.
I cannot think that this right to confront his accusers with testimony is ever dependent upon the discretion of a Judge. The Court should seek to remove the decision of all questions involving the right of the citizen from the realm of discretion and place it upon the foundation of law — fixed, certain, and of universal application. One of the purposes which the people had in making Avritten constitutions was that there should be a government of laAvs and not of men.
In regard to the question presented by the exception of the prisoner, we have a direct, and, I think, controlling authority in this Court. In State v. Sparrow, 7 N. C., 487, the prisoner was upon trial for murder. After the jury was charged, the witnesses for the State and the prisoner “were SAVorn and *687sent out.” After tbe evidence bad been closed on tbe part of tbe State and tbe defendant, tbe Solicitor-General moved for leave to swear another witness, wbo bad been present in court during tbe whole trial, to prove that tbe prisoner bad fled from persons who went to arrest him, after tbe deceased died. This motion was objected to on tbe part of tbe State; but tbe objection was overruled by tbe Oourt and tbe witness was sworn and examined. Prisoner excepted and, upon conviction, appealed.
Taylor, Q. J., was of the opinion that tbe exception was good, and that there was error in tbe action of the Oourt, entitling the prisoner to a new trial. Judges Hall and Herir derson thought otherwise. Tbe former said: “Tbe Constitution of tbe State declares that every man has a right to be informed of tbe accusation against him and to confront tbe accusers and witnesses with other testimony; and if tbe prisoner, when tbe proper time comes, has a right to introduce bis witnesses, as the Constitution authorizes him to do, be would not forfeit that right if, either through inadvertence or design, be or tbe State omitted to call their witnesses when directed to do so, in order that they might be separated.”
Henderson, J., said: “Whatever may be tbe consequence of an omission or refusal to obey tbe order of tbe Court to name or send out the witnesses, I think tbe .Court is not authorized to reject a witness offered at tbe proper time, because be was not sent out. This would add another objection on tbe score of incompetency, unknown in our law, as far as I can discover. Eor I have never yet beard of a witness being rejected on that account, and it must be admitted that this motion is predicated on tbe supposed existence of such a rule. Were a prisoner to refuse to name bis witnesses in order that they might be sent out, a Judge would, hesitate much before be would direct a jury to retire without bearing such witnesses, if offered by the prisoner when called upon to make his defense and offer bis proofs. Tbe law, and the Con*688stitution which gives him a right to confront his accusers with witnesses and other testimony, would be a dead letter.”
This case has been cited but once by this Court. Then a witness who was not sent out was examined and the Court held that it was not error. Worth v. Cox, 89 N. C., 44.
Judge Elliott, in his work on Evidence, sec. 802, says that while there is some conflict among the authorities whether a witness remaining in the court-room should be permitted to give testimony, it is held in some jurisdictions that “where a party is without fault, and a witness disobeys an order for exclusion, the party ought not to be deprived of the testimony of his witness. This latter view would seem to be the better; that is, if the party calling the witness has been guilty of no misconduct, a Judge ought not to reject him. So then, in case of refusal by, or failure of, a witness to leave the .room, the proper remedy would seem to be for the Court to admit his testimony and punish the witness for contempt of Court.” Among many other authorities cited to sustain this proposition is State v. Sparrow, supra.
In this connection it may be well to note that the case cited in the opinion of Jackson v. State, 14 Ind., 327, came under review by the same Court in State v. Thomas, 111 Ind., 516, Judge Elliott saying: “Where a party is without fault, and a witness disobeys an order directing a separation of witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may go to the jury upon the question of his credibility.” Citing Taylor on Evidence. “But it seems to be now settled that the Judge has no right to reject the Avitness on this ground, however much his wilful disobedience of the order may lessen the value of his evidence.” Also citing 2 Phil. Ev., 744, saying: “But it may now be considered as settled that the circumstance of a witness having remained in court in disobedience to an order of withdrawal, is not a ground for rejecting his *689evidence, and that it merely affords matter of observation.” Thomas’s case was reaffirmed in Taylor v. State, 130 Ind., 66.
I do not think that the cases cited in the opinion sustain the conclusion reached by the Court. In Holder v. United States, 150 U. S., 91, the Court directed the witnesses, except the one under examination, “to be excluded from the courtroom.” Bickford, who had remained in the court-room, was examined without objection; other evidence intervened, and he was recalled, objection then being made for that he had not left the room. The objection was overruled, and defendant excepted. Fuller, C. J., said: “If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is open to comment to the jury, by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he can not be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the Court. Certainly the action of the Court in admitting the testimony will not, ordinarily, be open to revision.” This falls far short of sustaining the right of the Court to exclude a defendant’s witness.
In State v. Gesell, 124 Mo., 531, an order for separation and withdrawal was made, when the jury was impaneled. The record states: “Furber, who had been a co-defendant and had been severed from him, remained seated by the defendant Gesell in the court-room during the whole trial.” The Court says that the authorities are in hopeless conflict as to whether the Court can reject the testimony of a contumacious witness. “The point has been decided both ways in this State,” citing cases. The conclusion is reached, on the authority of O’Bryan v. Allen, 95 Mo., 68, that “If the party who desired the testimony of the disobedient witness has ‘participated in his disobedience or has been guilty of connivance at the fault of the witness, he should not be *690allowed to testify.” When we turn to O’Bryan’s case, we find that it was held to be reversible error to exclude a witness who was not sent out “unless the party or his attorney calling the witness has been party or privy to the violation of the order,” “because,” says the Court, “any other rule would put it in the power of a hostile witness to deprive a party of his evidence.”
I respectfully submit that the authorities cited in the opinion in that case should have led the Court to hold that “a witness who disobeys such order is guilty of contempt; hut the Judge cannot refuse to hear his evidence, although the circumstance is a matter of remark to the jury.” 2 Best Ev., 636. The learned Justice says that this “may now be regarded as settled.” In Commonwealth v. Crowley, 168 Mass., 121, the circumstances under which the witness was excluded were peculiar. I concede that the ruling in that case sustains the opinion in this.
It is worthy of note, however, that the question was not discussed by the Court, and Holder’s case, supra, was relied upon. The value of that case as an authority for the purpose of sustaining the right to exclude the witness has been pointed out. Wharton Cr. Ev., sec. 446 (9 Ed.), is relied upon. The original text so states the law, but the note after citing many cases concludes: “But it may now be considered as settled that the circumstance of a witness remaining iaa court, in disobedience of an order of withdrawal, is not ground for rejecting his evidence.” The old rule was always to exclude the testimony.
I have thus reviewed the authorities relied upon to sustain the ruling in this case. It is impracticable for me to comment upon the large number of cases cited in the excellent brief of prisoner’s counsel, showing that, by the overwhelming weight of authority, the Court has no right to exclude the witness. The latest work on criminal procedure so states the law. Clark Grim. Proc., 548. The last deliverance of *691this Court is to the same effect. In State v. Hare, 74 N. C., 591, it is held error to refuse “to allow the defendant to examine a witness who was not present when the other witnesses were sworn and sent out, and who came in during the trial, but had not heard the examination of the other witnesses.” No authorities are cited; the question is treated as settled. Grimes v. Martin, 10 Iowa, 347; Dixon v. State, 39 Ohio St., 73.
I cannot better elose the discussion of this question than by quoting the wise and noble words of one who drew inspiration and acquired knowledge by heredity, example and education, of the principles of constitutional liberty from an ancestry illustrating the highest virtues of citizenship and judicial service in our own State. In Parker v. State, 67 Md., 329, Mr. Justice William Sheppard Bryan, lately departed, after a long and honorable service on the Bench in his adopted State, said: “It was in the discretion of the Court to order the witnesses to leave the court-room; but it is not reasonable to take away from a prisoner on trial the benefit of testimony on which his life may depend, because of the misconduct of another person. The humanity of the law is shocked at the punishment of the innocent. It provides with the greatest solicitude that persons accused of crimes shall have fair and impartial trials. The object is considered of sufficient importance to be guaranteed by the solemn and impressive declarations of our organic law. The scheme and theory of our legal system seek to provide that no man shall be adjudged guilty, unless the truth of the matter charged upon him has been established after a fair and full investigation. The ascertainment of the truth is the great end and object of all the proceedings in a judicial trial. But this object is pursued by general rules which experience has shown to be useful in guarding against erroneous conclusions. By the operation of these general rules, certain well-defined classes of persons are forbidden to testify. Subject to these *692well-known and distinctly marked exceptions, a person on trial bas tbe right to prove the truth relating to the accusation against him by the evidence of all witnesses who have any knowledge of it. And they are compelled to attend and deliver their testimony in his behalf. Since such great care has been taken to secure the right of an accused person to prove the truth relating to the accusation against him, it would be very strange if he should forfeit this most precious privilege by the misbehavior of a witness. Authorities were cited at the bar for the purpose of showing that in some jurisdictions it was within the discretion of .the Judge to refuse to permit a witness to testify under the circumstances stated in the second exception. If the evidence of such witness would show the innocence of a prisoner on trial for his life, then the discretion of the Judge to admit or reject the testimony amounts to a discretion to take the prisoner’s life, or to spare it. The wise, just and merciful provisions of our criminal law do not place human life on such an uncertain tenure. A man’s life and liberty are protected by fixed rules prescribed by the law of the land, and are not enjoyed at the discretionary forbearance of any tribunal. All suggestions of this kind are alien to the spirit and genius of our jurisprudence.” This language was used with the approval of Justices Alvey, Stone, and Miller, and leaves nothing more to be said.
When the constitutional right to confront his accusers is placed upon positive law, there is certainty and safety to the citizen. When made to depend upon variable and varying .circumstances and conditions, ultimately vesting in the un-reviewable discretion of a Judge, there is confusion, uncertainty, resulting in conflicting decisions, dependent upon the peculiar views of the Court, respecting the guilt or innocence of the defendant, which it is the province of the jury alone to decide.
*693We axe not called upon to decide in this case whether, if the prisoner were in fault, in not swearing and sending his witness out of the court-room, he would forfeit his constitutional right. There is nothing in the record indicating that he knew that Riggsbee was under subpoena, or would be called. The prisoner had been in jail and was of course in custody during the trial. Whatever may be said of the effect of his personal conduct upon his right, I find no authority holding that by the failure of his counsel to comply with the order of the Court his rights axe forfeited. There are rights secured to a person on trial for a felony which he cannot waive, while there are others which may be waived by him, but not by his counsel. I do not find any decision holding that the right to examine his witness is lost by any act of omission or commission of counsel. I am sure that, upon principle, no such decision could be sustained. Here there is no suggestion that the learned and honorable counsel connived at or, for any improper reason, permitted the witness to remain in the Court after he ascertained that his testimony would be of value to his client and had him subpoenaed. It is entirely consistent with our observation and experience that he overlooked the fact that the witness should retire. His uniform honorable and frank conduct in his relations to the Courts exclude any other explanation. Boot it is said that the prisoner has suffered no harm by the refusal of the Court to permit his witness to testify. If I were permitted to express my personal opinion in this respect, I should not dissent from the proposition. When, as a Judge, I am called upon to deal with a constitutional right of a citizen, I am not permitted to make the Constitution of “none effect” because of such reasons. I do not find that the Judges have heretofore done so. I find no case, and none is cited, to show that a Court may for such reason deal with their rights.
Our own reports, and many others, contain numerous cases in which new trials have been given because of the failure to *694accord constitutional rights to defendants, and in none of them is it suggested that unless prejudice was shown it was not reversible error.
It is further said that the exception cannot be siistained, because it does not appear what the prisoner proposed to show by the witness. I concede that where the exception is based upon the exclusion of evidence such is the rule. The distinction is well stated in •Thomas’’s case, supra, where it is said: “The relatrix was not bound to state what she expected to prove by Johnson, because the question is not as to the competency of his testimony, but as to his right to testify at all. Where the matter complained of is the action of the Court, in refusing to permit a witness to testify at all, the grounds of the objection to the witness must be shown by a bill of exceptions, and this is all that need be shown in order to present the matter for our consideration. We cannot say that the relatrix was not prejudiced by the refusal of the Court to permit Johnson to testify, and the judgment cannot be sustained.” This opinion is sustained by authority. 1 do not find in any of the cases which I have examined that the right of defendant to have his exception considered is dependent upon showing what he expected to prove.
I have with some labor and care considered and investigated the question presented because, with all possible deference to the opinion of the Court, both in respect to the laAV and the desire to see that guilty men are punished, I cannot resist the conclusion that a dangerous innovation, of course unintentional, is being made upon a fundamental' right of the citizen. If, perchance, the right is invoked by a guilty man, it is no reason that it should be denied or its value and certainty weakened. We cannot tell how soon it will become a shield for the protection of an innocent -man charged with crime. I concede, what I do not find anywhere doubted, “that the sole object of a trial for murder is not the acquittal of'the prisoner. It is to determine whether he be guilty or not after *695giving him the advantage of requiring the unanimous verdict of a jury of twelve men, each of whom must be satisfied beyond a reasonable doubt of his guilt.” I only insist that unless he be permitted to confront his accusei’s with his witnesses, the right of trial by jury is of little value, and to refuse it to him is, as is said by Chief Jusbice Henderson, to make this provision of the Constitution “a dead letter.”
Note by Reporter. — In this case an application for a writ of error was refused, by the Justices of the Supreme Court of the United States on the ground that no* Federal question was involved. A similar application was also made and refused by the Court on the same ground, in State v. Daniels, 134 N. C., 641. Walker, L, concurs in the dissenting opinion.