dissenting, Hoee, J., concurring, in dissent: The following is the prisoner’s first exception as it appears in the statement of case on appeal:
“After the State had rested and the prisoner was offering testimony, and before the prisoner’s testimony was closed, and whilst the prisoner was examining one of his witnesses, Dr. Bisch, the State requested the *614court to allow it to examine three witnesses out of the usual order, stating that the same was done in good faith and from necessity, and thereupon the State offered H. 0. Caldwell and J. E. Stoffel, of Bristol, Tennessee, who were 'examined and cross-examined without objection. The State then called Dr. W. D. Hilliard, a witness for the State, who testified as follows:
“Examination by Mr. Brown:
“Q. Dr. Hilliard, what conditions have arisen whereby it is necessary for you to leave Asheville?
“By Judge Carter (one of defendant’s counsel) : We wish your Honor to know that we do not think we could do justice to this defendant in the examination of Dr. Hilliard until we have examined one or two other witnesses. We do not think our hypothetical question would have the weight put to the doctor now that it would have after we have examined one or two other witnesses, and we are obliged under the peculiar circumstances under which we would have to examine this witness to object to his testimony at this time.
“By the Court: Wait until we hear something.
“Mr. Brown resuming:
. “Q. Dr. Hilliard, state to his Honor what conditions have arisen that make it necessary for you to leave. A. Why, I have been having telegrams for the last two or three days from my wife, who is now in New Hampshire. Her mother is very ill, dying, and she wired me to come. Once she told me not to come, then that her mother is lying in almost a dying condition, and I have been promising day after day that I could go. I ought to have left three days ago. The last telegram I had last night was, ‘For heaven’s sake leave on the 6 o’clock train this morning.’ It is a long journey away up in New Hampshire. I have had half a dozen telegrams.
“By the Court: Is your wife now there? A. There now; yes, sir.
“By the Court: And it is your wife’s mother who is so ill? A. Yes.
“By the Court: What point in New Hampshire? A. Littleton, New Hampshire.
“By the Court: Well, don’t you see the situation the witness is in? Of course you understand the situation of the case better than I do. Of course I don’t understand what the evidence is until it comes out here, but I am put in this position when a witness asks to be allowed to go to the bedside of his wife’s mother (interrupted by prisoner’s counsel).
“By Judge Carter: I do not believe that appeals to your Honor more than to the counsel, but we feel that until Dr. Bisch and Dr. Knoefel and Dr. Cotton are sworn, especially as to Dr. Bisch, and the result of the personal examination of the prisoner by him, we do not think if we cannot submit their evidence to Dr. Hilliard, particularly the personal *615examination of tbe defendant, we do not think we can submit that to Dr. Hilliard at all satisfactorily until Dr. Bisch has been examined, and do justice to the case. It is exceedingly painful to us to take this attitude and we would not do it if we could avoid it. The State undoubtedly relies upon Dr. Hilliard for testimony of an expert character that they expect to elicit from him, and we feel that not to be able to present the counter hypothesis with any degree of satisfaction to ourselves, we feel that it would be an injustice to our client. We do not feel that we can submit to it.
“By the Court to the counsel for the prisoner: How many expert witnesses have you to be examined?
“By Judge Carter: Two, and they have four besides Dr. Hilliard.
“By the Court: You say you have two? • -
“By Judge Carter: We have two. We understand they have four.
“By the Court: Now, I will ask them about that. The counsel for the prosecution can state how many they have.
“By Mr. Swain, solicitor appointed by the court in lieu of Solicitor Pritchard, released at his request: We will have three.
“By the Court to the witness on the stand, Dr. Hilliard: What train do you want to take? A. Four-fifty, the only train I can get. My tickets are bought and my reservations are bought.
“By the Court: Tickets and reservations for 4:50 ? A. In my pocket.
“By the Court: It is now 3:30. A. Yes, sir.
“By Judge Jones (one of prisoner’s counsel) : I will state to your Honor frankly that I do not think we could possibly get through with him before his train leaves.
“Answer by Dr. Hilliard: I am going to appeal to the court to excuse me and let me off and let me go.
“The court started to remark, 'I don’t like to be,’ meaning to say that it didn’t like to be embarrassed, and further added: ‘But there is something' the court cannot control, that is the visitation of God. If the woman is dying, and her son-in-law says he is a physician, and has waited as long as he has, I will let him be examined.’ The court causes to be put upon the record the following: ‘It appearing to the court that the facts set forth by Dr. Hilliard above are true, the court now allows him to be examined, but at the same time announces to the counsel of the prisoner that as, under the law; the prisoner can take depositions of witnesses to be heard in this case, they can take such steps as they see proper to have the deposition of this witness taken later as to any other questions they desire to ask him as a witness in this case, provided it is done in time to be read to the jury during this trial, and the court will require the law officers of the State to waive notice that, such deposition may be taken.’
*616“Judge Jones: If it pleases your Honor, if Dr. Hilliard leaves on the 4:50 train to go to New Hampshire he will be out of the State and we could hot quit the case to go up there, and if the mother of his wife is in such a critical condition, we could not take it if we went there. It is now 3 :35. I do not think in justice to our client we could get through with the cross-examination that we wish to put to this witness in time for him to get his train.
“By the Court: So far as the court is concerned his deposition can be taken on the train moving from the depot at 4:50.
“The prisoner’s counsel objects and excepts, and except to allowing the witness to testify under these circumstances.
“After this delay in proceeding with the examination the witness was examined by the State and then turned over for cross-examination by the prisoner’s counsel. At the close of Dr. Hilliard’s testimony the following happened: The witness, Dr. Hilliard, stated to the court: If it please your Honor, my train is about due.
“Question by prisoner’s counsel: You have got to go now? A. Well, it is about twenty minutes of my time and I have to get my grip.
“Question by prisoner’s counsel: I won’t keep you. There are more questions I want to ask you, but I won’t keep you. A. I really would' be very much disappointed if I didn’t get the train, and I know it would be a bitter disappointment to my wife.
“By prisoner’s counsel: Well, stand aside. I am not through with you but—
“The witness then left the stand at about 4:20.”
(At the time of settling case on appeal his Honor here inserted a statement and explanation which is set out in the opinion of the court.)
The foregoing is a bare statement of the record and no more. It speaks for itself. The prisoner contends that such procedure is not in keeping with the rules of approved practice or the law of the land. He says that a fair examination of the witness, who was offered as a medical expert and for the purpose of answering hypothetical, questions, could not possibly be had under the circumstances; that all the evidence bearing upon his plea of insanity at the time of the homicide had not yet been introduced; that counsel were at a great disadvantage in submitting fair hypotheses and important interrogatories; that the jury were in no position to appreciate fully the meaning of questions based upon evidence which they had not then heard; and finally, that he was compelled to examine the witness in an unequal and unsuccessful race against time. It would seem that the prisoner’s contentions are abundantly supported by the record.
“A fair and full cross-examination of a witness upon the subject of his examination in chief is the absolute right, and not the mere privi*617lege, of tbe party against wbom be is called, and a denial of tbis right is a prejudicial and fatal error. It is only after tbe right has been substantially and fairly exercised that tbe allowance of cross-examination becomes discretionary with tbe trial court.” Resurrection Gold Min. Co. v. Fortune Gold Min. Co., 129 Fed., 668; Florence v. Calmet, 43 Colo., 510; Gilmer v. Higley, 110 U. S., 47; Chandler v. Allison, 10 Mich., 460; Reeve v. Dennett, 141 Mass., 207; S. v. Behrman, 114 N. C., 804.
Tbe offer to supply tbe defect by allowing tbe defendant an opportunity to take tbe deposition of tbe witness was wholly inadequate and amounted to a denial of bis rights. Even if tbe cross-examination could have been secured by deposition, tbe offer within itself was error. Section 1812 of tbe Consolidated Statutes provides that tbe defendant, in all criminal actions, may take tbe depositions of witnesses to be used as evidence in his behalf. But this applies to bis own witnesses and not to those who testify against him. It would be strange, indeed, to say that a statute, intended to grant, as it does, a privilege to the defendant, could be used to deprive him of bis constitutional guarantees. As to tbe witnesses offered by tbe State, be has tbe right to demand their presence i.n tbe courtroom, and to confront them with other witnesses, and to subject them to tbe test of a cross-examination. S. v. Mitchell, 119 N. C., 784. Tbe prisoner may not be required to examine tbe State’s witnesses in tbe absence of tbe jury; and tbe contrary suggestion of bis Honor, though unintentional, was prejudicial to tbe defendant.
“In all criminal prosecutions every man has tbe right to be informed of tbe accusation against him and to confront tbe accusers and witnesses with other testimony.” Const., Art. I, sec. 11. “We take it that tbe word confront does not simply secure to tbe accused tbe privilege, of examining witnesses in bis behalf, but is an affirmance of tbe rule of tbe common law that in trials by jury tbe witness must be present before tbe jury and accused, so that be may be confronted; that is, put face to face.” Pearson, C. J., in S. v. Thomas, 64 N. C., 74.
But tbe defendant’s second exception is equally as prejudicial, if not more hurtful than tbe first.
Paul Harris, son of tbe prisoner, was introduced as a witness on behalf of tbe defendant:
“Cross-examination by Mr. Brown: Q. Mr. Harris, tbe question just propounded to you (by prisoner’s counsel) about tbe declarations to your mother; have you bad your mother subpoenaed as a witness? A. No, sir.
“Objection by defendant.
“Q. I want to ask if you have not bad your mother subpoenaed as a witness and discharged her ?
*618“By tbe Court: When tbe questions above were asked tbe objection was made thereto, tbe counsel for tbe defendant interposed tbe objection, and a conversation ensued between tbe counsel, followed by statements, of counsel, and before tbe court bad any time to give or render a decision upon tbe objection. As soon as tbe court could do so, it .ruled out tbe questions above, and in connection witb its ruling tbe court read to tbe jury sec. 1634 of tbe Revisal, p. 917, to wit: ‘Tbe wife of tbe defendant in all criminal actions or proceedings shall be a competent witness for' tbe defendant; but tbe failure of such witness to be examined shall not be used to tbe prejudice of tbe defense. But every such person examined as a witness shall be subject to cross-examination as are other witnesses.’
“Mr. Brown, after examining tbe said Paul Harris for a period of time, then asked this question:
“Q. Do you know of any other witness who has been released besides” your sister ?
“Objection by defendant.
“By tbe Court: Tbe court, ruling upon tbe objection, states that if tbe witness himself knows that witnesses have been released by tbe defendant himself, or by bis authority, or through bis counsel or himself, he may answer; otherwise, if be has information from other persons than tbe defendant himself or bis counsel now present, and in tbe presence of tbe witness himself, be shall not answer. Of course this ruling of tbe court has no relation of tbe ruling heretofore made by tbe court in regard to tbe prisoner’s wife.
“Judge Jones: I don’t believe that your Honor bad got the question.
“By tbe Court: Of course this ruling of tbe court has no relation to-the ruling heretofore made by tbe court in regard to tbe prisoner’s wife.
“By Judge Jones: Please, your Honor, I now ask your Honor, at this stage, to charge tbe jury that this line of question by tbe counsel is improper, and ought not to be considered. ,
“By the Court: I have made a ruling. You may have an exception if you want it. Now be must go to something else.
“Mr. Brown then asked tbe witness: Q. Has anybody else been released besides your sister and your mother?
“Objection by defendant.
“By tbe Court: As this implies that tbe mother has been subpoenaed and released, tbe objection is sustained. Tbe court has heretofore made a ruling in regard to the defendant’s wife, as set out in tbe record above.
“Question by Mr. Brown: What I am trying to ask you — have you released any other witnesses other than those whose names have been mentioned here this morning ?
“Objection by defendant.
“By tbe Court: Sustained, as this refers to the prisoner’s wife.”
*619“Tbe prisoner assigns as error tbe ruling of bis Honor in refusing tbe request of counsel for tbe prisoner to charge tbe jury tbat tbe repeated questioning of tbe witness, Paul Harris, as to tbe discharge or release of tbe wife of tbe prisoner as a witness on behalf of tbe prisoner, was improper and ought not to be considered by tbe jury, and for tbat instead of so charging tbe jury, either at tbe time said request was preferred, or in bis general charge, bis Honor permitted counsel for tbe State and for tbe private prosecution, in their arguments to tbe jury, to direct tbe attention of tbe jury sharply to tbe fact tbat tbe wife of tbe prisoner bad not been called as a witness, and for tbat instead of charging tbe jury as requested by tbe prisoner, tbe court permitted tbe acting solicitor, in tbe course of tbe closing arguments to tbe jury, to declare that 'this prisoner has already been tried by bis wife and daughter and they have found him guilty and condemned him to death.’ ”
At tbe time of settling ease on appeal, bis Honor added tbe following statement with respect to this assignment of error:
“The court allows the prisoner’s counsel to put this exception as all others in their own words, but tbe court states as a fact tbat tbe prisoner’s counsel never prayed instruction for tbe charge above referred to, nor did they object or except to anything said in tbe argument of either of *the counsel in their speeches made to tbe jury at any time during their arguments, either orally or in writing; and it will further appear tbat as to tbe rulings made by tbe court with regard to what happened when Paul Harris was on tbe stand and tbe release- or discharge of tbe prisoner’s wife as a witness, tbe court sustained tbe objection of tbe prisoner, as will appear in tbe record as set out above.”
A similar question was presented in the case of S. v. Cox, 150 N. C., 846, where tbe present Chief Justice, speaking for a .unanimous Court, said: “The State called tbe wife of tbe defendant, who was present under subpoena, and tendered her to tbe defendant. Tbe court ruled tbat tbe State could not examine her as a witness—tbat she was a competent witness only for tbe defendant. Tbe solicitor, in bis argument to tbe jury, commented on tbe failure of tbe defendant to corroborate bis own testimony by bis wife. On objection made, bis Honor stated that 'the wife was not competent and would not be allowed to bear witness against tbe husband; tbat her testimony would be competent only in behalf of her husband, and tbat as tbe wife was not permitted to testify against her husband, and bad not done so, tbe jury could not consider what she knew or did not know.’ And in bis charge tbe court told tbe jury, ‘It was not for tbe State to examine tbe wife of tbe defendant as a witness -against her husband, but it was competent for tbe defendant to use her as a witness.’
*620“Tbe tender of tbe wife by tbe State and tbe remarks of tbe solicitor sharply called attention to tbe failure of tbe defense to examine tbe defendant’s wife. Objection was made, but tbe court, instead of telling tbe jury tbat tbey should not let tbat fact prejudice tbe defendant, on botb occasions rather accentuated tbe matter by telling tbe jury tbat tbe State could not use tbe wife of tbe defendant as a witness, but tbat be could. Tbe effect, tbougb unintentional on tbe part of bis Honor, was to throw tbe fault of tbe wife not being a witness upon tbe defendant, since be could have put her on and tbe State could not. There was no caution tbat such failure to use tbe wife as a witness should not be considered by tbe jury. Yet tbe tender, and tbe remarks of counsel being called to tbe judge’s attention, called for such caution, and bis failing to give it was prejudicial.”
And again in S. v. Spivey, 151 N. C., 678, speaking of tbe imperative duty to observe tbe provisions of this statute, it was stated: “At tbe close of tbe testimony of tbe last witness examined by tbe State, and before tbe evidence was closed, tbe solicitor tendered to tbe prisoner several witnesses, among them tbe prisoner’s wife, for examination. Tbe prisoner objected to tbe tender of his wife; thereupon, tbe solicitor withdrew tbe tender, stating tbat be found tbe name of defendant’s wife among tbe witnesses for tbe State, and thought it was bis duty to tender her to defendant, stating, also, tbat be would not tender this witness to defendant if defendant did not wish to examine her. Tbe defendant objected. Tbe court then instructed tbe jury tbat this incident could not be construed by them, in making up their verdict, as prejudicial to tbe defendant, or in any way influencing their verdict against him. His Honor, near tbe close of bis charge, again said to tbe jury: ‘At tbe close of tbe evidence tbe solicitor called certain witnesses, whom be tendered to tbe prisoner for examination. Among these was tbe wife of tbe prisoner. Tbe solicitor stated tbat as be found tbe name of tbe prisoner’s wife upon tbe list of witnesses for tbe State, be deemed it bis duty to tender her to tbe prisoner for examination. Tbe court charges you tbat tbe wife of tbe prisoner is not a competent witness against tbe prisoner and tbat her testimony could not be used against him on this trial. Tbe court charges you further, tbat it is your duty to disregard tbe circumstances of tbe tender of tbe prisoner’s wife by tbe solicitor, and tbat such tender cannot be used as a circumstance against tbe prisoner. Tbe circumstance of her having been tendered, therefore, must be entirely disregarded and ignored by tbe jury in arriving at their verdict.’ We have set out in full the matters pertaining to this incident to illustrate bow careful bis Honor was, not only in the conduct of tbe trial, but in bis charge, to see to it tbat tbe prisoner bad a fair and impartial trial. There was a similar incident in S. v. Cox, 150 N. C., 846, but bis *621Honor, in tbe present ease, observed the caution pointed out in that case, which the learned judge who tried God’s case had unintentionally failed to observe. While it was improper for the solicitor to tender the prisoner’s wife, with the remark made by him, yet his Honor corrected the error fully; and we, therefore, overrule this assignment of error.”
Can it be said, in the case at bar, that the failure of the prisoner’s wife to testify in his behalf has not been used to his prejudice? The forbidden circumstance was brought to the attention of the jury again and again in many ways and on different occasions. The provisions of the statute surely have been set at naught inadvertently of course, but nevertheless to the prejudice of the defendant. This is not due process of law; and it is fundamental with us and expressly vouchsafed in the bill of rights that no man shall be “deprived of his life, liberty, or property but by the law of the land.”
Hpon the record, we think the prisoner is entitled to a new trial.
Hoicb, J".,, concurring.