State v. McO'Blenis

Leoward, Judge,

delivered the opinion of the court.

The main question that has been discussed before us in this case is the competency of Nievergelder’s deposition, which was regularly taken before the committing magistrate upon the preliminary examination in the presence of the accused, and read on the trial upon proof of the deponent’s death. Before we dispose of it, however, we will remark that on a careful examination of the record and consideration of other points presented, we have not found any ground for reversing the judgment, in the empanelling of the jury, in the admission or exclusion of evidence, in the instructions under which the cause was tried, or in the verdict, either as to form or substance, and, dismissing with these remarks the minor points, we proceed at once to the question that was mainly relied upon in argument before us.

The proud answer of the Roman governor to the Jews, when they demanded of him the condemnation of Paul, was, “ It is not the manner of the Romans to deliver any man to die before that he which is accused have the accusers face to face, and have license to answer for himself concerning the crime laid against him.” And De Lolme, a foreigner, born in Switzerland, and'educated under the civil law, impressed by the strong contrast in this respect between the mode of administering criminal justice in England and throughout the continent of Europe, (2 De Lolme, by Stephens, book 1, chap. 12 & 13,) says: “ When at length the jury is formed, and they have taken their oath, the indictment is opened, and the prosecutor produces the proofs of his accusation ; bat, unti/ce the rules of the civil law, the witnesses deliver their evidence in the presence of the prisoner.” And again : “ It is an invariable rule that the trial be public ; the prisoner neither makes his appearance nor pleads but in places where every body may have free entrance ; and the witnesses, when they give their evidence — the judge, when he delivers his opinion — the jury, when they give their verdict, are all under the public eye.” In a note, we are informed of the secrecy with which the proceedings in the administration of criminal justice are carried on according to the rules of the civil law, which, in that respect are adopted all over Europe. “ As soon as the prisoner is committed, he is debarred of the sight of every body till he has gone through his several examinations. One or two judges are appointed to examine him, with a clerk to take his answers in writing, and he stands alone before them in some private room in the prison. The witnesses are to be examined apart, and he is not admitted to see them till their evidence is closed ; they are then confronted together before all the judges, to the end that the witnesses may see if the prisoner is really the man they meant in delivering their respective evidences, and that the prisoner may object to such of them as he shall think proper. This done, the depositions of those witnesses who are adjudged upon the trial to be exceptionable are set aside. The depositions of the others are to be laid before the judges, as well as the answers of the prisoner, who has been previously called upon to confirm or deny them in their presence: and a copy of the whole is delivered to him that he may prepare for his justification. The judges are to decide both upon the matter of law and the matter of fact, as well as upon all incidents that may arise during the course of the trial, such as admitting witnesses to be heard in behalf of the prisoner,” &c.

This contrast between the common law and civil law mode of administering criminal justice, which prevailed over the whole continent ever since the latter age of the Roman law, impressed itself strongly upon the mind of the intelligent foreigner, and is forcibly presented in his book ; and these great principles of the common law to which he has referred — the accusation by a grand jury — the public trial by a petit jury of the neighborhood, instead of by a permanent body of men — the production of the witnesses before the court, and their public examination there in the presence of the accused — the right of the accused to compel the attendance of his own witnesses to be heard in his own defence — and his exemption from torture, or being otherwise required to testify against himself — have been deemed of so much importance on this side of the Atlantic, that they have been generally, in some shape or other, incorporated into most of the American constitutions, and in this way secured against legislative control. Our own bill of rights secures to the accused, among other things, the right “to be heard by himself and his counsel;” “ to demand the nature and cause of accusation “ to have compulsory process to compel the attendance of witnesses in his favor ;” ‘ ‘ to meet the witnesses against him face to face ;” and “ to a speedy trial by an impartial jury of the vicinage,” and to an exemption from “ being compelled to give evidence against himself;” and the admission upon the present trial of Nievergelder’s deposition is supposed to have violated the clause which secures to the accused “ in all criminal prosecutions the right to meet witnesses against him face to face.” The great security of the accused however, after all, is in the fundamental principle of the common law, that legal evidence consists in facts testified to by some person who has personal knowledge of them; thus excluding all suspicions, public rumors, second-hand statements, and generally all mere hearsay testimony ; idhether oral or written, from the consideration of the jury — the usual test of this hearsay evidence being that it does not derive its value solely from the credit to be given to the witness who is before them, but partly from the veracity of some other individual. This great principle however, like all others, has its exceptions and limitations, which are as well settled as the rule itself, and among these exceptions, in its application to the administration of criminal justice, are, dying declarations in reference to the same homicide, and the deposition of a witness regularly taken in a judicial proceeding against tbe accused in respect to tbe same transaction and in Ms presence, when the subsequent death of the witness has rendered his production in court impossible; and the question now to be passed upon comes to this : whether the provision in our constitution is to be construed so as to abolish both or either of these exceptions, so that hereafter this species of evidence, which has heretofore, it is believed, always been received both in England and all over the United'States, must be excluded. The constitution, it is to» be observed, has not undertaken to define, by any direct pro-1 vision, what constitutes competent evidence in criminal cases, ’ except in the single case of treason, but requires it to come ’ from witnesses standing in the presence of the accused, and it may be in the tribunal where his guilt or innocence is to be finally passed upon. If the clause be understood literally, it provides for the production of the witness, but does not prescribe what he may communicate as evidence. It compels his presence in court, but leaves the evidence he may give to be regulated by law. The dying statement of the slain, and the deposition of the deceased witness, are both mere hearsay in the-legal sense of the term. The truth of the facts they relate do not depend upon the veracity of the witness who heard the oral statement in one case, or of the officer who heard the tes--timony of the deponent and .wrote it down and read it over to him in the other, but mainly upon the credit due to statements made under such circumstances. Even in the civil law mode, of procedure the witnesses, it seems, are ultimately confronted with the accused, and therefore it may be said literally even there that they “ meet the accused face to face.” But all such constructions would be quite too narrow, and altogether unworthy both of the instrument and of this tribunal. The people have incorporated into their frame of government a great living principle of the common law under which they and their ancestors have lived, and it is the duty of the court so to construe it as to make it effectual to answer the great purpose they had in view. And this principle, we think, is no other than the principle of the common law in reference to criminal evidence, that it consists in facts within the personal knowledge of the witness, to be testified to in open court in the presence of the accused. This principle, however, was nowhere written down on parchment. It is not to be found in magna charta, or in the English bill of rights, but it existed in the living memory of men, and was always a part of the common law, although in bad times it was trodden under foot by bad men in high places. It is not, however, a stiff, unbending rule, extending to every case, without exception, falling within its letter, but is limited and controlled by subordinate rules, which render jfc safe and useful in the administration of public justice, and are as well established as the great principle itself, which, with all its exceptions and limitations, was taken from the existing law 'of the land and incorporated into the constitution. The purpose of the people was not, we think, to introduce any new principle into the law of criminal procedure, but to secure those 'that already existed as part of the law of the land from future 'change by elevating them into constitutional law. It may as well be the boast of an Englishman living under the common law, as of a citizen of this state living under our constitution, 'that in a criminal prosecution he has a right to meet the witnesses against him face to face ; and yet it was never supposed ■in England, at any time, that this privilege was violated by the admission of a dying declaration, or of the deposition of a de<ceased witness, under proper circumstances ; nor, indeed, by the reception of any other hearsay evidence established and re•cognized by law as an exception to the general rule. It is said by Lord Aukland, in reference to the conduct of the British courts in the sixteenth and part of the seventeenth centuries— •“ Depositions of witnesses forthcoming, if called, but not permitted to be confronted with the prisoner — written examinations >of accomplices living and amenable — confessions of convicts lately hanged for the same offence — hearsay of these convicts repeated at second-hand from others — all formed so many 'classes of competent evidence, and were received as such in the most solemn trials by learned judges.” ■ (Principles of Penal Law, 2d ed. 197) Rut no complaint of the character of the one now made was ever heard. This was not an evil to be provided for by any law, much less by a constitutional provision ; these exceptions to the general rule were never considered violations of the rule itself; they grew out of the necessity of the case, and are founded in practical wisdom. The facts thus communicated go to the jury, not as entitled to the full faith of the facts sworn to by a witness from his own personal knowledge, but yet as competent to be considered by the jury in forming their verdict. But whether these exceptions be wise or unwise, is not submitted to our judgment. They were well established at the time, and, we think, went into the constitution as part of the great principle of criminal evidence adopted by the clause now under consideration.

We refer, in conclusion, in confirmation of our views upon the subject, to the decisions of the other states ; but as they are cited in the briefs, we shall do so in a general manner, without calling attention to the particular cases. The privilege now under consideration exists in every state where the common law prevails, either as part of that law, or by a constitutional provision similar to our own, and yet evidence of this character, it appears, has never been excluded but in a single case, decided in early times in Tennessee, and which has since been expressly overruled. In some of the states it has been expressly recognized as competent by direct decisions to that effect, and in all of them the uniform current of judicial dicta, whenever the question has been a subject of discussion, is in favor of its competency. We are constrained, therefore, both on the score of reason and authority, to pronounce in favor of the legality of the evidence. The judgment must therefore be affirmed ;

Judge Scott concurring.