Ex parte Marmaduke

Black, J.,

Concurring. — On the application of David S. Eotheringham, who stands indicted for a felony in the St. Louis criminal court, a writ of habeas cor2ms ad testificandum was-issued by that court, directed to the warden of the state penitentiary, commanding him to produce the bodies of Whitrock and Haight, two convicts, to the end that they might testify in behalf of Fotheringham. The warden declined to comply with the command of the writ, and being attached therefor he is now before this court on a writ of habeas corpus, asking to be released from the attachment. It seems to me there are but two questions to be considered; and that they should be determined aside from any question of inconvenience, or supposed or real detriment to the good government of the convicts in the penitentiary, for such questions address themselves to the legislature and not to the courts. The questions to be determined are: (1) Can these convicts, under the terms of existing laws, be taken from the penitentiary to the courts of original jurisdictions throughout the state for the purpose of giving their testimony? (2) If they cannot, then are those laws forbidding it to be done constitutional 2

*246With, respect to tlie first of these questions, it may be observed that, prior to the revision of 1879, persons convicted of certain felonies were thereby rendered incompetent to be sworn as witnesses, or to serve as jurors, and were disqualified from voting at any election, etc. In the revision of 1879, so much of the several sections as rendered these persons incompetent to be sworn as witnesses was dropped out. It is, thence, argued that the other sections of the statute, which were continued in force by the revision of 1879, should be so construed as to allow the convicts, not only to be sworn as witnesses during their time of imprisonment, but to be subject to writs like that issued by the criminal court in this case. An examination of the statutes will show that this subject was before the legislative mind at the revision of 1879. Section 8, of chapter 212, of the code of criminal procedure, General Statutes of 1865, provided: “Every person indicted or prosecuted for a criminal offence shall be entitled to-subpoenas and compulsory process for witnesses, in like manner, and under like circumstances, as parties in civil cases.” By the Nevised Statutes of 1879, section 1848, the above section was amended so as to read: “Every person indicted or prosecuted for a criminal offence shall be entitled to subpoenas and compulsory process for witnesses in his behalf; ’ ’ and when any convict confined in the penitentiary shall be deemed an important witness for the state upon a criminal prosecution against any other convict, then the court, or judge thereof, may issue a writ of habeas eorpics for the purpose of bringing such person before the court to testify, and the section concludes as follows: “ Such convict may be examined, and shall be considered a competent witness against any fellow-convict for any offence-actually committed whilst in prison, and whilst the-witness shall have been- confined in the penitentiary.” This amendment of the old section shows clearly that *247the matter of using these convicts as witnesses was before the legislature and considered by that body, and it is for this purpose reference is made to the amend-' ment at this time.

Again, section 4031, Revised Statutes, 1879, which is applicable to both civil and criminal cases, is as follows : “Courts of record, and any judge or justice thereof, shall have power, upon the application of any party to a suit or proceeding, civil or criminal, pending-in any court of record, or public body authorized to examine witnesses, to issue a writ of habeas corpus, for the purpose of bringing before such court or public body any person who may be detained in jail or prison, within the state, for any cause, except a sentence for felony, to be examined as a witness in such suit or proceeding, on behalf of the applicant.” It is true this section comes down through the revisions of 1855 and 1865, but there is nothing in the revision of 1879 which undertakes to repeal it, and we have seen that the legislation then had is perfectly consistent with the continued existence of the section last cited. There is, therefore, not only no statutory authority for removing a convict from the penitentiary while undergoing a sentence for a felony, for the purpose of testifying in any case other than where a fellow-convict is charged with a crime, but the right of such removal for any such purpose is clearly denied. That Whitrock and Haight are each undergoing a sentence for a felony is conceded.

But the next contention is, that the section of the statute last quoted is in conflict with section 22, of the Bill of Rights, which provides, among other things, that in criminal prosecutions the accused shall have the right to have process to compel the attendance of witnesses in his behalf. The same provision, though stated in different words, was a part of the former constitutions of this state, is found in the seventh amendment to the constitution of the United States, and in the constitu*248tions of many of tlie states. Stinson Am. Stat. Law, 29. This, and the other provision that the accused shall have the assistance of counsel, are retained as safeguards against a return to such practices as formerly existed in England. Under the practice which then prevailed the accused was not only denied, in capital cases, the assistance of counsel, but, at one time, was not allowed to call witnesses in his own behalf, and still later, when permitted to call witnesses, they were not put under oath, and hence their statements had but little weight. 2 Story Const., sec. 1792. These provisions of the organic law are not to be disregarded upon any pretext. But they are to be applied within reasonable bounds, and there are other considerations which are not to be overlooked. The state does not engage to produce, or furnish a process which will produce, in court every person who may be a witness for the defendant. The witness, when competent, may be beyond the jurisdiction of the state, or he may be within the jurisdiction of the state and still be infirm, and in either case cannot be brought before the court- The state may, but is not, by reason of the constitutional provision under consideration, bound to assume or pay the costs and expenses of the defendant’s witnesses. State v. Waters, 39 Me. 54.

The legislature may, also, determine who shall be competent witnesses, and determine the form of the process by which they shall be brought into court, .and make reasonable regulations with respect to the use and method of serving the same. It has the undoubted right to declare that a person convicted for a felony shall be forever incompetent to be sworn as a witness, and this as a part of the penalty for the infraction of the law, provided, only, that such laws are not ex post facto^ or retrospective; and, if it may do this, it may make the convict an incompetent witness, while undergoing imprisonment ; and so the legislature may prohibit his *249removal from the place of confinement, for the purpose of being used as a witness. The right to have process to compel the attendance of witnesses must be limited to such persons as, by the laws of the land, are allowed to be produced. The statute before quoted applies to all cases and to all litigants, and there is no discrimination against any person charged' with a crime. When the legislature removed the permanent disability to be sworn as witnesses, it had the right to, and did, prohibit them from being taken out of the place of confinement for the purpose of being us.ed as witnesses. I, therefore, concur in the judgment discharging the warden.