I fully concur in the views of the majority of the court reversing this case on account of the court below permitting the introduction of the testimony of the two witnesses Peter and Walling, and I fully agree that the case should be reversed for the errors discussed in the opinion except with regard to the ruling of the court on the admission of the written testimony of the witness Ellis taken in writing on thehabeas corpus trial. I do not concur in the views expressed as to this testimony and its admissibility, and regret *Page 199 that the limited time of the present term precludes me from giving as full and thorough an investigation and discussion of the subject as its merits require. I believe that this testimony was admissible under article 774, Code of Criminal Procedure, which provides that a 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 evidence as provided in the two preceding articles for the reading in evidence of depositions. The word "deposition" as used in this article is manifestly a mistake for the word "testimony" or "evidence." Kerry v. The State, 17 Texas Ct. App., 178.
Article 772, one of the articles referred to, prescribes the circumstances under which such testimony may be read, and where either one of these circumstances is established as a predicate the testimony is permitted to be used.
In the case in hand the objection to the admissibility of Ellis' testimony was not to its competency and admissibility as such, but was based upon the fact that a sufficient and proper predicate had not been laid under the provisions of article 772. When one of the predicates in article 772 has been established the evidence taken before an "examining court" is made admissible by the provisions of article 774.
It is objected that the evidence was not taken before such court as is contemplated in said article, to-wit, an "examining court," and the question is whether or not a habeas corpus proceeding is "an examining trial" and whether or not the court in which it occurs is such an "examining court" coming within the meaning of said article. It will be observed that the article in question, so far as the question here raised is concerned, only requires the evidence to have been taken before "an examining court" and reduced to writing. Now what is an "examining court?" Our statute defines it to be a proceeding before a magistrate for the purpose of inquiring into a criminal accusation against any person. The Code of Criminal Procedure, article 63, and article 42, Code of Criminal Procedure, declares that magistrates within the meaning of the code are justices of the Supreme Court and Court of Appeals, district and county judges, county commissioners, and justices of the peace.
A criminal accusation is defined by articles 25 and 26 of the Penal Code to be the whole or any part of the procedure which the law provides for bringing offenders to justice.
It is a familiar rule that in construing a statute, in order to arrive at its true meaning or the effect and scope of any term used therein, all statutes bearing upon the same subject and having relation thereto must be taken and considered together and construed in connection *Page 200 with the particular one under consideration. Applying this rule, we find the article in question simply employs the words "examining court" in their broad and comprehensive sense. There is nothing in the article to indicate that the term as there used was intended to be restricted to a court over which a justice of the peace presides; and when, as in this case, we have a statute defining "examining court" and the officers who are qualified to preside over the same, it would be doing violence to both the language and the spirit of the article under consideration, when it simply uses the words "examining court," to say that these words are to be limited and restricted to an "examining court" presided over by a particular one of the several officers qualified in law to preside over the same. That a habeas corpus trial is a proceeding in an "examining court" can not be successfully controverted and ought not to admit of doubt. The statute says that an "examining court" is where amagistrate sits to inquire into an accusation against any person.
The sole inquiry in a habeas corpus proceeding where a person is restrained and held on a charge of crime is, does the evidence show that the accused has committed any offense which requires him to be restrained of his liberty?
The very gist of the inquiry is the existence and sufficiency of theaccusation of crime against the accused. Therefore if upon the hearing it is developed that the defendant has committed no offense, he is released and discharged; if the contrary be developed he is bound over as required by law to await the trial upon the merits. In this respect the proceedings are not at all dissimilar from those had before an examining court presided over by a justice of the peace. In an examining trial on habeas corpus, like an examining trial before a justice of the peace, the proceedings, including all the testimony, are reduced to writing, certified to, and filed in the proper court. Code Crim. Proc., arts. 181, 182, 267.
By article 170, Code of Criminal Procedure, the court is required to examine the writs and papers attached to it, and if no legal cause for the imprisonment or restraint appears it is required that the appellant shall be discharged. By article 171, it is expressly provided that if the party stands indicted for a capital offense the judge or court shall nevertheless hear such testimony as may be offered on the part both of the applicant or the State, and may either remand the defendant or admit him to bail as the law and the facts of the case may justify. Article 174 provides for the action of the court upon examination, and declares that the judge or court after having examined the return and the documents attached and heard the testimony offered on both sides, shall, according to the facts and circumstances of the case, proceed either to remand the party into custody, admit him to bail, or discharge him, provided that defendant shall not be discharged after indictment without bail. *Page 201
Article 176 declares that where upon an examination under habeascorpus it shall appear to the court or judge that there is cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or admitted to bail according to the facts and circumstances of the case.
Article 181 requires the proceedings to be entered of record.
Article 182, if the proceedings are had in vacation, requires that the proceedings shall be written. The judge shall require the proceedings to be written and certify to the same and file with the clerk of the court having jurisdiction of the offense.
Article 188 provides that if the accusation against the defendant for a capital offense has been heard on habeas corpus before indictment found, and he shall have been committed after such examination, he shall not be entitled to the writ, unless, etc.
I have cited the above provisions from our statute to show that a judge or court when hearing a habeas corpus proceeding sits as anexamining court or examining magistrate. The proceedings on the trial are denominated and characterized throughout as "an examination." In his work on Habeas Corpus Mr. Church says: "In ordinary criminal proceedings commitments are seldom made comparatively speaking by courts of general jurisdiction. By statute, however, in some of the States the judges of the courts of general jurisdiction are made magistrates and are vested with the authority to hold accused persons to answer. Commitments made by these magistrates are undoubtedly entitled to more consideration than a commitment made by an ordinary justice of the peace." P. 304, sec. 238.
My views as to this matter are fully sustained by the opinion of Judge Willson, a late and most distinguished and honored member of this court, in the case of Evans v. The State, 12 Texas Court of Appeals, 370. In that case the State was permitted to produce orally the testimony of a witness as it had been given in a previous examination of the case onhabeas corpus. The objection to the introduction of the testimony was that a proper predicate for its admission was not laid as provided by our statute, Article 772, Code Criminal Procedure.
No question was raised to the admissibility or competency of such testimony had the predicate been properly laid, and the inevitable conclusion from Judge Willson's opinion is, that had the predicate been properly and sufficiently laid such testimony would have been competent and admissible. He nowhere expresses the slightest doubt as to the competency of such evidence if the proper predicate for its introduction had been laid.
So far as I have been able to ascertain, the practice in the courts of this State has always been uniform in the admission of such testimony where the proper predicate for its introduction has been laid, and so far *Page 202 as I know the question of its competency and admissibility is raised for the first time in this case, not indeed by the attorneys who objected to the admission of the testimony in the court below, but by the opinion of the majority of the court, which goes beyond and outside of the objections which were presented.
If the opinion of the majority of this court in this case be correct, then we have no statute providing a rule for the reproduction of testimony which has been given on a habeas corpus trial, and unless such testimony can be availed of by some other legitimate means already provided for in the code, it would be well for our Legislature to supply this defect in the laws of our State, for we can readily imagine innumerable instances in which if such be the rule justice will be frustrated and the vindication of the law rendered impossible. If, however, the rule laid down by a majority of the court be correct, then it may be well to consider whether or not such evidence is not legitimate and admissible under other provisions of our Code of Criminal Procedure. If we have no express statute regulating the matter, then our code provides, that "whenever it is found that this code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern." Code Crim. Proc., art. 27. And again, "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 where they are in conflict with the provisions of this code or some statute of this State." Code Crim. Proc., art. 725. "The English practice under 2 and 3 Philip and Mary, chapter 10, always was to read the depositions of witnesses taken upon oath in the presence of the prisoner and the magistrate before whom he had been brought on a charge of felony, and to give them in evidence on the trial of an indictment for the same felony if it were proved on oath to the satisfaction of the court that the witness was dead. * * * So it has been said if due diligence has been used and it is made manifest that the witness has been sought for and can not be found, or if he be found and fell sick by the wayside, his deposition may be read, for that in such case he is in the same circumstances as to the party that is to use him as if be were dead." 1 Archbold's Crim. Prac. and Pleading, Pomeroy's Notes, S ed., pp. 454, 455, note 1, citing B. N. 239; Hawkins P. C., b. 2, chap. 46, sec. 18.
If it be true that we have no rule of procedure with regard to the testimony had on habeas corpus proceedings as to its admissibility on the future trial of the case, then under the foregoing authorities such evidence could be admitted under the rules and procedure of the common law and would be legitimate evidence, because it can not be said there is any express provision of our code which would be in conflict with such procedure. But as stated above, in my opinion the evidence *Page 203 was admissible under the provisions of the Code of Criminal Procedure, articles 772, 774, and so believing I am constrained to dissent from the opinion of the majority of the court holding otherwise.
*Page 1