The judgment was affirmed while I was absent, at the present term of the court. Appellant filed a motion for rehearing and asked a reconsideration of the questions decided in the opinion of affirmance upon the theory that there was serious error committed on the trial of the case in the court below as well by this court in its opinion affirming the judgment. This motion for rehearing is overruled without written opinion and the affirmance made final. I dissent and adopt as the reasoning for my dissent the ably written brief of appellant's counsel, Messrs. A.S. Fisher, Marsene Johnson, Elmo Johnson and Roy Johnson, which is as follows:
"At a former day of the present term, this case was affirmed. Appellant filed his motion for rehearing within the statutory time.
"Questions not passed on. On the trial of the case in the court below, in appellant's motion for new trial, in his assignments of error and in his original brief, appellant strenuously protested and objected not only to the reproduction by the State of the testimony of the dead and absent witnesses named in the record, but to the manner in which said testimony was reproduced. We submit that a careful inspection of the opinion affirming this case will sustain the contention of our motion for rehearing that these questions, especially as to the manner of reproducing the testimony, were not carefully considered.
"Your Honors will remember that the record discloses the fact that the district attorney was permitted to read from the agreed statement *Page 243 of facts of the first trial and appeal, (reported in 54 Tex. Crim. 21 [54 Tex. Crim. 21]) all the testimony contained in said statement given by the defendant at the first trial; and not only that, but to read the testimony of police officers who testified at the former trial, and who were present at the second trial, but not put on the stand at the last trial. This very testimony was by this court on the former appeal held inadmissible because coerced from defendant while under arrest. (See former appeal, 54 Texas Cr. Rep., p. 21.)
"These matters will forcefully show to your Honors the necessity for the rule laid down by this court in its very last expression as to the correct way in which testimony must be reproduced (if at all) and that is, `that this character of testimony could not be reproduced by merely reading from an agreed statement of facts of a former trial. Under such circumstances, when reproduction of testimony is permissible a witness who heard the former evidence, if it is oral testimony, should be introduced to show what the witness' evidence was on the former trial." (See Hardin's case, 57 Texas Cr. Rep., at page 40.)
We earnestly insist, that whether this court reaffirms the doctrine that testimony of dead and absent witnesses can be reproduced on subsequent trials, or again declares as in the Cline and Kemper cases that reproduction of testimony is not warranted nor permissible under the Constitution and laws of Texas, this case must be reversed because the record shows that the State was permitted by the lower court, over the objections and protests of defendant, to reproduce the testimony given at a former trial by present living witntsses who were not put upon the stand by the State or defendant at the last trial.
Surely, this court will carefully reconsider this case on this question alone, even though our following propositions may not meet the approval of this court.
We come now to the matter with which almost alone the opinion of affirmance deals; and that is, generally, as to reproduction of testimony. The vice of the opinion rendered in the case as to reproduction of testimony, is in holding:
First. "That section 13, article 4, of the Constitution of the Republic of Texas is, as a constitutional provision, still in force in this State, independent of subsequent statutory provision relating to the common law."
Second. "That when Texas adopted the common law it also adopted the English statutes, up to a certain period, as the American common law."
Our contra propositions are:
First. That the Constitution of 1836 of the Republic was completely abrogated by the adoption of the Constitution of 1845 of the State of Texas and that none of its provisions, except those enacted into statute or readopted by the subsequent Constitution of 1845, remained the law of this State. *Page 244
Second. That neither the Republic, nor State of Texas, by any Act, constitutional or statutory, ever adopted an English statute by its adoption of the common law.
The first proposition answers itself. The Constitution of 1836 was not that of a State only, as we of the different States of the Union understand the term, but that of a State in its broadest meaning, viz.: An independent sovereignty. A nation within itself. Under that Constitution, Texas had the power to regulate commerce, coin money, regulate the value thereof and foreign coin, to establish postoffices and post roads, grant patents and copyrights, to declare war, grant letters of marque and reprisal and to regulate captures, to provide and maintain an army and navy and to make all laws and regulations necessary for their government, etc. Does this court propose to hold that such powers were carried over to the State of Texas? To hold that any one provision of this Constitution, not carried forward into the Constitution of 1845, remained in force, this court would be compelled also to hold that provisions of the Constitution of 1845, 1866 and 1869, though not carried forward into the different succeeding Constitutions, are still the law, though we are now supposed to be administering this State government under the Constitution of 1876.
The Constitution of 1869, section 10, article 1, says: "The privilege of the writ of habeas corpus shall not be suspended, except by Act of the Legislature," etc.
Section 12, article 1, of the Constitution of the State of Texas of 1876, says: "The writ of habeas corpus is a writ of right, and shall never be suspended."
If both Constitutions are in effect, which one of these provisions control? If they are both in effect, you must so construe the law, if possible, as to make both stand and reconcile the conflict. This you would not attempt to do. And why? Because this court would not place itself in a position, so absurd, as to call forth the criticism of every lawyer and court in the land. The elementary rule is that when a new Constitution is adopted, the former is abrogated. True, portions of the former Constitution may be expressly adopted and carried forward into the new, but the old Constitution is a thing of the past. "When the people, in the exercise of their sovereignty, deliberately put an end to the existing Constitution, and adopt an entirely new one instead, all powers of government under the old Constitution necessarily cease, except in so far as they are maintained in existence in the new Constitution." Seger v. Crenshaw, 8 La. Ann., 401.
Judge Harper in his former opinion has evidently been misled by an awkward expression of Justice Lipscomb in the Grinder case,2 Tex. 340. The language used is this: "The common law in criminal cases, not provided for by legislative enactment, was introduced by the Constitution of the Republic and is still thelaw." (The italics are ours.) This opinion was written in 1847, nearly two years after the adoption of the Constitution of 1845 and about seven years after the *Page 245 Act of January 20, 1840, adopting the common law as the "rule of decision" in this State.
It was not the purpose of Judge Lipscomb, by that language, to hold that the Constitution of 1836, or any of its provisions, not carried over into the Constitution of 1845, was in force after the adoption of the Constitution of 1845. He did not so hold in the Grinder case. The Act of 1840, at the time of the rendering of said opinion had been passed, adopting the common law as "the rule of decisions" in obedience to sec. 13, art. 4, of the Constitution of 1836.
Our conclusion is strengthened by reference to the case of Republic of Texas v. Smith, Dallam's Reports, p. 410, which not only reviews the constitutional provision referred to, but several statutes "provided by legislative enactment." The court says: "We frankly admit that we search in vain in the common law for an instance of an appellate court retrying the cause upon the facts; and we know that the only mode known to the common law of removing a cause from an inferior to a superior tribunal was by writ of error. But we can not admit that in adopting the common law the convention intended thereby to adopt irrevocably the practice of the common law in criminal proceedings, and tie down the legislature of the country to the common law course of proceedings. For we see that the very framers of the Constitution itself after adopting the "common law as the rule of decision in criminal proceedings," have gone on and made considerable innovations in the practice of that very code which they had just adopted. At common law, in criminal cases, the defendant had not the right to have compulsory process to compel the attendance of witnesses, etc. He had not the right to be heard by counsel, except upon collateral or incidental questions; he had not the right of the writ of habeas corpus; nor did he, indeed, have the right of the benefit of testimony in his favor under the sanction of an oath; all of which is secured to the citizen by our constitution and are innovations in the practice of the common law. It is our opinion, then that the convention intended only to adopt the common law, to use their own language, "as the rule of decision" in criminal proceedings; and no more of the forms and peculiar writs of that code than might be found necessary to carry out the objects contemplated by that adoption." It is hardly to be presumed that one of Justice Lipscomb's learning and ability would state, in the face of the opinion in Republic v. Smith, and the fact that he was thoroughly familiar with the statutory laws of the Republic, that the common law had not been provided by legislative Act of 20th January, 1840; and it would be still more improbable that he, knowing that the Constitution of 1836 had been abrogated and superseded by the Constitution of 1845, and that sec. 13, art. 4, of the Constitution of 1836 had not been carried over into the Constitution of 1845, would have said that said section of the Constitution of 1836 was still in force. He was only holding that *Page 246 where there was no legislative enactment on the subject, the rule at common law should be the rule of decision in criminal law.
Now, as to the second proposition, viz.: "That neither the Republic nor State of Texas, by an Act, constitutional or statutory, ever adopted an English statute by its adoption of the common law."
To properly appreciate and understand this question, it is necessary to briefly review the legislative history of the States now forming the United States.
1st. The thirteen original colonies and the States formed from territory ceded by those different colonies and from which territory other States were subsequently formed. 2nd. That afterwards acquired and known as the Louisiana purchase. 3rd. That purchased of Spain and known as the Florida purchase, and 4th. Texas, and that acquired of Mexico by the treaty of Guadalupe Hidalgo and under the Gadsden purchase.
Now as to the first, the thirteen original colonies and the territory subsequently ceded to the United States, — such, for instance, as the Northwest territory, etc. — the common law, as well as English statutes of a general nature prevailed up to the 4th day of July, 1776, the date of the final separation from England. Up to that time all of such territory was a part of the British Kingdom over which the laws of England, both common and statutory, obtained. No legislation by any of the thirteen original colonies was necessary to put such law in force. It was in force by their relation to the Crown of England and so remained until repealed, modified or amended after their separation July 4th, 1776. This in effect is the opinion in Patterson v. Winnie, 5 Peters, 232, which was an appeal from Georgia, one of the thirteen original colonies. The court, through Justice Storey, was then speaking as to the effect of the common law and the English statutes applicable to Georgia and the other original colonies. Also the cases of Tayloe v. Thompson, 5 Peters, 358, and Cathcart v. Robinson, 30 U.S. (5 Peters), 264, both of which originated in the District of Columbia, which had formerly been a part of two of the original colonies. No question whatever is made as to the correctness of those opinions, nor to the correctness of the many opinions copied by this court into its opinion and cited from the Am. Eng. Ency. of Law to sustain the text of such encyclopedia as follows: "It may be stated as a general rule that English statutes passed before the emigration of our ancestors, in aid or amendment of the common law, applicable to our condition and not repugnant to our institutions and form of government, constitute a part of our common law." But we do most emphatically deny that either English common law or English statutes ever had any effect in either French, Spanish or Mexican territory which was never under the jurisdiction of English rule or within English territory, except by some Act of adopton; this regardless of any question of emigration by our ancestors or any one else. It is true that the particular character of emigration may have caused the adoption of the common *Page 247 law, but the mere fact of such emigration alone, without such adoption, most certainly did not put into effect either the English common law or the English statutes. Adoption andemigration are not synonymous.
As to the territory acquired from France, Spain and Mexico, neither the common law nor English statutes were in force, but over all such the civil law prevailed, while under the sovereignty of France, Spain or Mexico. The same as to Texas; and not until the common law was adopted by the different States formed from such territory did it have any force or effect in any of such teritory. However, with the exception of Louisiana, all of the different States formed from such territory have in some form or other adopted the common law. Some of these States, in adopting the common law, have adopted as a part of such the English statutes up to certain periods. So have also a number of the States formerly composing the thirteen original colonies and States formed from the territory ceded by them or part of them to the United States and over which, as before said, the common law and English statutes up to a certain period prevailed.
Arkansas adopted the common law and English statutes up to the fourth year of James the First. So did Colorado, Illinois, Indiana, Missouri, Wyoming and Virginia; Florida up to July 4th, 1776, so did Connecticut and Rhode Island; Georgia up to the 14th of May, 1776, and this also applies to Alabama and Mississippi, both being formerly a part of Georgia. Kentucky, by its first Constitution adopted "all laws now in force (19th of April, 1792) in the State of Virginia," which fixed the fourth year of James the First as the period to which English statutes are adopted; Pennsylvania up to May 14th, 1776, while most of the other States have adopted the common law, some as to rule of decision, some qualifying and others not. Texas adopted the common law pure and simple on the 20th day of January, 1840, as follows:
"The common law of England (so far as it is not inconsistent with the Constitution and laws of this State) shall, together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature. Revised Civil Statutes, art. 3258." It will be observed nothing is there said about adopting any English statute, but only the common law of England; and then only so much of it as is not inconsistent with the statute or constitutional law of this State.
The opinion rendered in this case by Judge Harper is the first ever rendered holding that, by the adoption of the common law of England, Texas also adopted the English statute, and refers to a great many cases outside of Texas to show what is the "American common law." Our reply to that is, Texas has never adopted the "American common law" and in the very nature of things, can not, without fixing, by statute, some period when the English common law ends and the "American common law" begins. What date will this court fix as the *Page 248 beginning of the "American common law" spoken of in Judge Harper's opinion? Will it be the fourth year of James the First, or the 4th day of July, 1776, or the 14th day of May, 1776, or will it adopt all of the English statutes up to 1836, the date of Declaration of Independence by Texas? The correct rule is that announced by our "higher courts" in an unbroken line of decisions, viz.: that "in adopting the common law, Texas did not adopt any English statutes."
In Paul v. Ball, 32 Tex. 10, it is said: "It is a singular fact, that, although this State has adopted the common law by express legislative enactment, yet, unlike most, if not all of the States which have adopted the common law, we have not, as they have, also adopted all English statutes of a general nature, up to a particular period, not repugnant to or inconsistent with the Constitution and laws of the State. Hence our rules of construction and interpretation must be predicated upon the common law, upon our statutes, and upon the general policy embodied in our varied form of government. It would be dangerous, as we think, to submit too implicitly to rules of construction founded entirely upon English jurisprudence."
And in Courand v. Vollmer, 31 Tex. 397, 400, it is said: "The common law of England (so far as it is not inconsistent with the Constitution or the acts of Congress now in force) shall be the rule of decision in this Republic, and shall continue in force until altered or repealed by Congress.' (Paschal's Dig., Art. 978, note 418.)
"It is perfectly apparent that the whole system of the common law of England was not adopted by this act, but simply that portion of it which related to `the rule of decision.' The substratum of the law of the parent country was the civil law. This, together with the statutes in force in Mexico and in Coahuila and Texas on the 2nd of March, 1836, were the laws in force when Texas became a separate government, and remained such until repealed. The Constitution of 1836 and the acts of three different Congresses had already furnished a collection of laws sufficient for a superstructure, but the basis or foundation of the judicial system was the civil law, and it was this which formed the rule of decision up to January, 1840.
"This act, therefore, substituted the common law of England in place of the civil law as "the rule of decisions," and for this only. It did not adopt the common law of England as a rule of practice, or to be used except when something was to be decided. This, of course contemplated judicial decisions, and was intended for the direction of the judiciary to resort to the unwritten law of England in those cases where the statutes are silent. Unlike most of the other States of the United States, the State of Texas, or the territory of which it is composed, never was under the jurisdiction of England, and therefore none of the English statutes ever were in force in this State except as they have been specially enacted. The Congress of the Republic of Texas and the Legislature of the State of Texas have adopted as laws a *Page 249 portion of an Act of 13 and 27 Elizabeth, and one section of an Act of 29 Charles II, and the whole unwritten or ante-statute law of England, so far as it forms or can form, in the absence of statute law, "a rule of decision." And it would be just as improper to say that, because the Legislature enacted the 4th section of the statute of frauds, the whole act was adopted, as to say that the common law of England was adopted for any and all purposes, because it was adopted as a "rule of decision."
"We have thus far proceeded as if the act introduced the common law as a rule of decision without exception. But the act itself expressly excepts even this when it is inconsistent with the Constitution or laws in force. When, therefore, such a state of things exists by the laws in force as would cause an inconsistency, or a want of necessity to resort to the common law, it is not in force."
Then again in the Indorsement Case, 31 Tex. 697, it is said:
"What is meant by `the rule of decision,' we do not pretend to say, and we have cited the act (Arts. 804, 978) for the purpose of calling attention to the fact, that in the adjudication of causes the ante-statute law of England forms the substratum, and the Constitution and laws of the United States, together with the Constitution and laws of this State, the superstructure of our system of jurisprudence. The laws, statutes, and customs of any country, State or nation, with the above exception, can have no force or validity as such. The laws, rules, or regulations relative to bills of exchange, promissory notes, etc., in force in this State, are our own statutes on this subject, inasmuch as by the common law of England a chose in action was not assignable. (Storey on Bills, sec. 17.) What is known as the mercantile law, and which accompanied the emigrants of Europe to this continent as a part of their inheritance, and which is now acted upon and received with the same binding force as a statute in most of the United States, has no validity or force in this State, except so far as it has become statute law, because it was so declared by the thorough sweeping act above recited. (Art. 804)."
In the case of Leeper v. State, 29 Texas Crim. App., 63, Judge Willson, one of the ablest judges who ever graced the higher courts of this State, in condemning the practice of judges referring to decisions of other States and in their endeavor to engraft upon the laws of Texas, by judicial construction, the laws of other countries and States, says: "We shall not enter upon an investigation and review of authorities, for whatever may be the common law rules, or the rule established by the decision of other States, we consider that in the decision of this question, we must be controlled by our statutes.
"In this State for more than thirty years we have had a Penal Code and a Code of Criminal Procedure, which having been carefully prepared by distinguished, experienced, and able jurists, were adopted by the Legislature. These codes have been pronounced by the bench and bar of our State to be the most perfect system of criminal laws ever *Page 250 devised. It is declared to be the design of the Penal Code "to define in plain language every offense against the laws of this State and affix to each offense its proper punishment." Penal Code, art. 1. It is declared that the Code of Criminal Procedure "is intended to embrace the rules applicable to the prevention and prosecution of offenses against the laws of this State, and to make rules of proceeding in respect to the prevention and punishment of offenses intelligible to the officers who are to act under them, and to all persons whose rights are to be affected by them." Code Crim. Proc., art. 1.
"We regard it as the imperative duty of this court, and of all other courts of this State, in the trial and determination of causes, to be guided and controlled by the statutes of the State, whenever there is a statute applicable to the question presented. Our observation is that many errors have crept into the decisions of the courts of this State, especially in criminal cases, by following common law rules and decisions of other States, overlooking our own statutes. These errors should be corrected whenever detected, and a strict adherence to statutes should be the rule governing courts in their decisions."
This court will search in vain for any rules of common law which will sanction the reproduction of the testimony of witnesses who have, since testifying, died, or departed the jurisdiction of the court. True the common law as understood and practiced in a great many of the States of this Union does sanction, because in most of them they have not only adopted the common law per se, but English statutes, which, by legislative enactment, they have virtually made a part of the common law. But Texas certainly can not be controlled in its policies of government by the enactment of other States nor by these decisions in construing the effect of those statutes so foreign to our system.
It is not denied that Parliament, untrammeled as we are by a written Constitution, had the power to enact the 10th and 13th chapters of the 1st and 2nd and 3rd Philip and Mary, nor that of Henry (we do not remember year or chapter) to aid which the statute of Philip and Mary was enacted. Parliament is generally said to be omnipotent as to the enactment of laws, but where is the judge in this land who will claim such power in behalf of State Legislatures? Here powers of government are conferred and each department of government is limited in its power. This is a government of delegated powers. Here the people are the source of all power. They speak their will through Constitutions and the same power that frames and adopts a Constitution can abrogate it in whole or in part. Does this court deny this proposition? When the people of Texas in 1836, wrote sec. 13, art. 4, into their Constitution, there was an implied reserved right and power in them to change, alter, amend or reject not only sec. 13, art. 4, but every other section of that Constitution by adopting another Constitution and by changing its form of government. This they did and descended from an independent sovereignty, which had been recognized by some of the great powers of the world as such, to that of a State *Page 251 of the United States. Does this court deny that it had such power? Yet Judge Harper seems to convey the idea, if we have read his opinion correctly, that Texas once, by its Constitution, having adopted the common law, was forever thereafter powerless to abrogate it, or to in any way modify it. We are led to the above remarks because the Act of the 20th of January, 1840, is very different in language from the 13th sec., art. 4 of the Constitution of 1836. This section is as follows: "The Congress shall as early as practicable, introduce by statute the common law of England, with such modification as our circumstances in their judgment, may require; and in all criminal cases the common law shall be the rule of decision." (Italics ours.)
The Act of January 20, 1840, says nothing about "as ourcircumstances may require." The Congress of the Republic of Texas was not willing to have this question open to construction and to allow the question of necessity to creep in. It therefore enacted that "the common law of England (so far as it is not inconsistentwith the Constitution and laws of this State) shall, together with such Constitution and laws, be the rule of decision and shall continue in force until altered or repealed by the Legislature." (Italics ours).
What laws? The statutory laws of England up to the 4th of July, 1776, or to any other period? No; the laws of this State. There is nowhere to be found in any of our legislative acts from 1836 to the present, where any English statute has been adopted. True, a great many of our statutes have to a certain extent, been assimilated to some of the English statutes, but no English statute as such has ever been adopted as in most of the States of the Union. It is unnecessary for us to refer to English or American cases, to show, that in England and a great many of the American States, since the statutes of Philip and Mary, the testimony of a dead or absent witness who had formerly testified, may or may not testify against an accused. That law is in force in England; and the courts of the different States have the power, by construction under the different acts of adoption of the English statutes to say whether such acts are, or are not in force in such States.
It is a matter with which we have nothing to do. Those statutes are not and never were in force in this State.
Texas in 1856 adopted a Penal Code and Code of Criminal Procedure — one of the best ever framed. In that Code of Criminal Procedure, provision is fully made for the reproduction of testimony of witnesses who have testified and since died or gone beyond the jurisdiction of the courts of this State.
Art. 4, Penal Code, reads: "The principle of the common law shall be the rule of construction, when not in conflict with the Penal Code or Code of Criminal Procedure, or with some other written statute of the State." Again, art. 3: "In order that the system of penal law in force in this State may be complete within itself and that no system of foreign laws, written or unwritten, may be appealed to, it is declared, *Page 252 etc." The two statutes construed together means that the common law construction in a modified way is adopted and that all other laws except those of the State of Texas are excluded. Art. 24, Code Criminal Procedure, reads: "The defendant, upon trial shall be confronted with the witnesses, except in certain cases provided for in this Code, when depositions have been taken."
Now eliminate this statute and chapter 8, title 8, of the Code of Criminal Procedure and there is no law in this State which permits the reproduction of testimony in criminal cases. We have not adopted the statutes of England, nor the American common law (so called). There is nothing in the common law, as adopted by Texas, which permits the reproduction of testimony by witnesses who have testified but have since died or gone beyond the jurisdiction of the court. Then upon what ground will you admit such testimony? Will it be upon the ground of necessity alone? We will speak of necessity later on. Texas has never yet framed its laws that necessity can take the place of a positive legislative enactment or constitutional guarantee. Art. 763, Code Crim. Procedure, says: "The rules of evidence known to the common law of England both in civil and criminal cases shall govern in the trial of criminal actions in this State, except when they are in conflict with the provisions of this Code or some statute of the State." Nothing is said therein about the English statutes, the American common law, or the law of necessity.
There is nothing in chapter 8, title 8, Code Criminal Procedure, which authorizes the State to take the deposition of a witness in a criminal case. The State is permitted to use such deposition under certain restrictions when they have been taken.
Art. 812, Code Criminal Procedure, reads: "Depositions taken in criminal actions shall not be read, unless oath be made that the witness resides out of the State; or that since his deposition was taken the witness has died; or that he has removed beyond the limits of the State; or that he has been prevented from attending the court through the act or agency of the defendant; or by the act or agency of any person whose object was to deprive the defendant of the benefit of the testimony; or that by reason of age or bodily infirmity such witness can not attend." (O.C., 779).
Art. 813, Code of Criminal Procedure, reads: "When the deposition is sought to be used by the State, the oath prescribed in the preceding article may be made by the district or county attorney, or any other credible person, and when sought to be used by the defendant the oath shall be made by him in person." (O.C. 780).
Art. 814, Code of Criminal Procedure, reads: "The deposition of a witness taken before an examining court or a jury of inquest and reduced to writing, and certified according to law, in cases where the defendant was present when such testimony was taken, and had the privilege afforded him of cross-examining the witness, may be read in *Page 253 evidence as is provided in the two preceding articles for the reading in evidence of deposition."
What is the condition upon which such depositions may be read by the State? It is found in Art. 797, Code Criminal Procedure, and the above articles. Article 797 reads: "When an examination takes place in a criminal action before a magistrate, the defendant may have the deposition of any witness taken by any officer or officers hereafter named in this chapter; but the State or person prosecuting shall have the right to cross-examine the witnesses, and the defendant shall not use the deposition forany purpose unless he first consent that the entire evidence orstatement of the witness may be used against him by the State onthe trial of the case." (O.C. 764). (Italics ours).
Depositions were unknown to the common law. The manner and form of taking and using is purely statutory. Therefore the common law can not in any way be looked to upon that subject. The courts of this State have always held that unless the deposition is taken and returned in conformity with the statutes of this State, they cannot be used.
In Johnson v. The State, 27 Tex. 765, Justice Moore says: "There was manifestly no error in the refusal of the court to admit the deposition of the witness, Henderson, in evidence to the jury. Depositions in criminal cases were unknown to the common law. They can only be received in our courts now, upon the conditions and with the restrictions prescribed by the Code of Criminal Procedure. Tested by it, the deposition was wholly and totally inadmissible. The consent of the district attorney, that it should be taken as was done, to be used upon the final trial, as stated in the bill of exceptions, could not abrogate or supply the requirements of the Code, or give it effect as an instrument of evidence where it can not be so held by the law, without the aid of such agreement. (C.C.P., arts. 764, 780)."
There are two preliminary conditions to the use of depositions prescribed by art. 797, 812 and 813, Code Criminal Proc., viz.: 1st. The defendant shall not use the deposition for any purpose unless he first consent that the entire evidence or statement of the witness may be used against him by the State on the trial of the case.
2d. That deposition shall not be used unless oath be made, etc., and if sought to be used by the State, the oath must be made by the district or county attorney or any other credible person and if sought to be used by the defendant then the oath must be made by him in person.
True depositions can not be read at all (except by consent) where the witness is present at the time of the trial. Art. 814, Code Crim. Proc. We do not have to look to the common law or the statutes of England or the "American common law" (so called) to determine the reproduction of testimony. Why? Because the above articles of the Code referred to have prescribed fully how and when and when not, such testimony can be used. Why all of the statutory restrictions? *Page 254 Why require the consent of the defendant to the use by the State of such testimony? Why did not the Legislature of Texas adopt the English statutes and English decisions construing such statutes upon the reproduction of testimony?
The answer is plain. First, when Texas adopted the common law, it expressly provided by the Act of 1840, that no part of the common law inconsistent with the Constitution and laws of this State should prevail. And by art. 763, Code Crim. Proc., that the rules of the common law should not prevail when in conflict with the provisions of this Code or some statute of the State. It must be kept in view that both of these are legislative acts and that the same power of the Legislature to enact the statute existed in the Legislature to limit or qualify the effect or operation of the common law, and therefore our law expressly provides that both the Constitution and statutes are paramount to the common law. This statute and art. 24, Code Criminal Procedure, were so enacted as to harmonize and not conflict with sec. 10, art. 1 (Bill of Rights), of the State Constitution, every word of which is a guaranty of individual right and a limitation of the power of all departments of government. In fact it is excepted out of the general powers of government. It reads as follows:
"In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof. He shall not be compelled to give evidence against himself. He shall have the right of being heard by himself or counsel or both; shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor. And no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of inpeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger."
The legislative department of government therefore, when adopting the common law was careful not to adopt anything, either of the common law or of any of the English statutes or any other law, which would in any way, by construction or otherwise conflict with this section of the bill of rights. Hence when it provided for depositions to be taken, knowing that the defendant had been guaranteed the right to be confronted with the witness against him, it was careful to place in the law, authorizing the taking of depositions, that such depositions should never be used by the State without the consent of the defendant, and that the defendant himself, should not use such depositions, unless he first consented to let them be used also by the State. If the defendant consented or in other words waived his right to be confronted by the witness against him, there would be no violation of his constitutional right. Now, so far, we have treated of testimony taken by deposition *Page 255 preliminary to the trial of the defendant. It was never contemplated by the legislative department of the Texas government that upon trial of a defendant the second time, that the testimony of a witness who had testified on the former trial, but since died or departed the jurisdiction of the court, could be reproduced upon the second trial of such defendant, without his consent.
"The defendant upon a trial shall be confronted with the witness against him." Art. 24, Code Crim. Proc. There is but one exception to this provision by the Legislature, viz.: "except incertain cases provided for in this Code, when depositions havebeen taken." Art. 24, Code. Crim. Proc. (Italics ours.)
The rule of construction of statutes is this, that when a statute contains an exception, such exception limits the statute thereto and it can not be so enlarged or extended as to embrace any other exception not contained therein. Will this court deny this rule of construction?
It is not said that in art. 24, by way of an exception, that testimony may be reproduced under the rules of the common law for the reproduction of testimony, nor under the statutes of England or the "American common law." The only exception provided for is "except in certain cases provided for in this Code." The Legislature did not stop here; it was unwilling to leave the words "provided for in this Code" to construction, but went further and limited "certain cases provided for in this Code" to"depositions when taken." The Legislature knew when it enacted art. 24 that there were English statutes providing for the reproduction of testimony and that testimony could not be reproduced under the common law of England (not the "American common law").
If it was therefore the intention of the Legislature to permit the reproduction of testimony under the English statutes, why the exception confining the reproduction of testimony to "depositions provided for in this Code?" The doctrine of expressio uniusexclusio est alterius applies.
The learned men, — and they were great lawyers — who prepared the Code of 1856 and the Legislature who adopted it, certainly did not intend that testimony should be reproduced under any common law rule. For two reasons, — 1st. They did not intend that a constitutional right guaranteed by the Constitution to a defendant should be treated as a shuttlecock to be knocked about by any rule of construction. 2d. They knew there was no "Englishcommon law" rule for the reproduction of testimony in a criminal case. They knew the only rule was to be found in English statutes.
How could there be a common law rule for the reproduction of testimony? At common law, in criminal cases, the defendant had not the right to have compulsory process to compel the attendance of witnesses. He had not the right to be heard by counsel, except upon collateral or incidental questions. He had not the right to cross-examine *Page 256 witnesses upon material matters; this was exercised for him, if at all, by the prosecution, nor did he have the benefit of testimony in his favor under the sanction of an oath. The office of justice of the peace, whose duty it was to examine, was created by statute; and under the statute, not common law, it required in felony cases, more than one justice. How, then can it be said that testimony could be reproduced at common law? The courts of England and the American courts when permitting the reproduction of testimony under English statutes, does so upon the ground that the defendant has once been confronted by the witnesses against him and had the opportunity to cross-examine. If so, what becomes of any pretended common law rule as to reproduction? With all respect to this court we submit that it will not find any well authenticated case of respectable authority which holds that the right to reproduce testimony was a common law rule; upon the contrary so strict was the common law that testimony could not be reproduced in civil cases.
You may find loose expression in some of the books about the common law rule, but if so, it is used without discriminating between the "common law" proper and the English statutes.
Does this court propose, in the face of sec. 10, of the bill of rights and art. 24 of the Code of Criminal Procedure to place the right of the State to reproduce testimony upon the ground ofnecessity? If so, where is your legal warrant for such holding? The very purpose of the bill of rights is to prevent such a usurpation of power. The bill of rights was not made for the protection of the State and to enlarge its governmental powers in any of its departments. It was made as a limitation of such power and excepted out of the general powers of government, Constitution 1876, art. 1, sec. 29. The bill of rights are individual guarantees of the citizen and are put into our Constitution to prevent courts and all other departments of government from doing, under the plea of necessity, — that specious plea of tyranny and despotism, — that which the Constitution and their oaths of office say they shall not do. Madam Roland, while upon the scaffold, in the anguish of her soul, said: "Oh! Liberty, what crimes are committed in thy name." And we, like she, can say: "Oh! Necessity, what crimes are committed in thy name." It is the most monstrous, dangerous doctrine that ever found lodgment in the head of a judge holding a constitutional office under the Constitution and laws of a free people. It is the recourse of depotism and tyranny and is never used except in an effort to violate some law when no other reason can be given. It is but a pretext for the exercise of legislative power resorted to by a judicial officer, and is but a shadowy effort to blend those powers by one of the coordinate departments of government, which the Constitution says shall not be united. It was necessity that prompted Pontius Pilate to appease the cry of the howling Jewish mob to murder the innocent Christ and send Him to His death upon the cross, and it was necessity that made the same Pilate play the craven before the Roman *Page 257 Senate when called to account for his cowardly conduct. It was necessity that caused Jefferies, puppet of an infamous King, to disgrace the laws of his country and blacken English jurisprudence by the horrible butcheries perpetrated at the behest of a royal master. It may be well to remember that the only monument erected to his memory is the infamy of his judicial career.
It was "necessity" that murdered the great Raleigh by the reproduction of the testimony of living witnesses. The courts of England, whose judges, with one or two exceptions, have rarely bowed to despotism and loaned themselves as tools to accomplish a political end, would not tolerate such testimony. And "necessity," therefore, without sanction of law organized its commission and destroyed Sir Walter Raleigh. It was "necessity" that broke the neck of Sir John Fenwick. He could not be convicted before the courts of England because testimony could not be reproduced, and Parliament, to please the Crown, by a bill of attainder, which enabled it to violate every rule of evidence, convicted him. This was the last conviction had in England by such a procedure. The English, though believing Fenwick guilty, have never been willing to again thus prostitute their laws. It was "necessity" that inaugurated the Lettres de Cachet of France which were one of the causes that produced the reign of terror and established a rule of anarchy. It was "necessity" that arrested, without warrant of law from 1861 to 1865, hundreds of the citizens of the United States and placed them behind iron bars without knowing the "nature of the accusation against them" and whose only warrant for arrest was the tinkle of a little bell in the hands of a United States Secretary.
It was "necessity" that created military commissions at a time when the courts of the country were open, and without form of law murdered an old woman (Mrs. Surratt) on suspicion and hung her without due process of law. It was "necessity" that passed the reconstruction laws, made the order of a military officer the law in States, superseded State Constitutions, destroyed the right to the writ of habeas corpus, denied the right of trial by jury and arrested and imprisoned the citizen without informing him as to the "nature of the accusation against him" and placed over sovereign States a destroying blight, in the shape of negro rule, for years more terrible in its effect than the sword of the destroying angel to Egypt's first born. You may say that these times are different, but bear in mind that your action will become a precedent, which may be some day used as the means of destroying, not only a part of the bill of rights, but the whole of it. Today the whole people of this country are alarmed over the action of a certain court, who, under the plea of "necessity" have written by judicial construction one word into a congressional statute, which the lawmaking power for years refused to write therein.
All that we ask of this court is to construe the law as it is written *Page 258 and to safeguard those guarantees to the citizen that have been placed hi the Constitution of this State by the people of Texas.
There is no necessity of this court confusing the rule as to dying declarations with that of the reproduction of testimony. Dying declarations are admitted by the common law and expressly by the statutes of Texas (art. 788, Code Crim. Proc.), as original testimony and no such rule applies to the reproduction of testimony. In passing, we call the court's attention to the fact, that some of the cases referred to by Judge Harper, in support of his opinion, have been directly overruled by the courts of the State delivering them, notably Missouri. We respectfully refer this court to the cases of Cline and Kemper as the most able opinions ever written upon the subject of reproduction of testimony.