Mattox v. United States (156 U.S. 237)/Opinion of the Court
Error is assigned to the action of the court below (1) in assuming jurisdiction of the case; (2) in not remitting the indictment to the circuit court for trial; (3) in admitting to the jury the reporter's notes of the testimony of two witnesses at the former trial, who had since died; (4) in refusing to permit the defendant to introduce the testimony of two witnesses, to impeach the testimony of one of the deceased witnesses, upon the ground that the proper foundation had not been laid. We proceed to the consideration of these assignments in their order:

1. The offense was alleged in the indictment to have been committed 'within that part of the Indian Territory lying north of the Canadian river and east of Texas and the 100th meridian, not set apart and occupied by the Cherokees, Creeks, and Seminole Indian tribes.' By section 2 of the act of January 6, 1883 (22 Stat. 400), this territory was expressly 'annexed to' and declared 'to constitute a part of the United States judicial district of Kansas.' It is true that, by the act of May 2, 1890, creating the territory of Oklahoma (26 Stat. 81, § 9), jurisdiction over the territory in question was vested in the district courts of that territory, but with a reservation that 'all actions commenced in such courts [viz. courts held beyond and outside the limits of the territory] and crimes committed in said territory and in the Cherokee Outlet, prior to the passage of this act, shall be tried and prosecuted, and proceeded with until finally disposed of, in the courts now having jurisdiction thereof, as if this act had not been passed.' As the homicide in question was committed in December, 1889, there can be no question but that it was properly cognizable in the judicial district of Kansas. Indeed, this point is disposed of by the decision of this court in Caha v. U.S., 152 U.S. 211, 14 Sup. Ct. 513.

2. We are also of opinion that there was no error in not remitting the indictment to the circuit court for trial, and in assuming jurisdiction of the entire case. Rev. St. § 1039, requiring indictments in capital cases presented to a district court to be remitted to the next session of the circuit court for the same district, and there to be tried, has no application to this case, since the subsequent act of January 6, 1883 (22 Stat. 400), to which we have already called attention, vests in the United States district courts at Wichita and Ft. Scott in the district of Kansas 'exclusive original jurisdiction of all offenses committed within the limits of the territory hereby annexed to said district of Kansas, against any of the laws of the United States.' This act should be read as a qualification of section 1039, or a repeal pro tanto of the requirement that indictments shall be remitted to the circuit court for trial. A district court could not be said to have 'exclusive original jurisdiction' of a case which it was obliged to remit to another court for trial.

3. Upon the trial it was shown by the government that two of its witnesses on the former trial, namely, Thomas Whitman and George Thornton, had since died, whereupon a transcribed copy of the reporter's stenographic notes of their testimony upon such trial, supported by his testimony that it was correct, was admitted to be read in evidence, and constituted the strongest proof against the accused. Both these witnesses were present and were fully examined and cross-examined on the former trial. It is claimed, however, that the constitutional provision that the accused shall 'be confronted with the witnesses against him' was infringed by permitting the testimony of witnesses sworn upon the former trial to be read against him. No question is made that this may not be done in a civil case, but it is insisted that the reasons of convenience and necessity which excuse a departure from the ordinary course of procedure in civil cases cannot override the constitutional provision in question.

The idea that this cannot be done seems to have arisen from a misinterpretation of a ruling in the Case of Sir John Fenwick (13 How. St. Tr. 579 et seq.), which was a proceeding in parliament in 1696 by bill of attainder upon a charge of high treason. It appeared that Lady Fenwick had spirited awsy a material witness, who had sworn against one Cook on his trial for the same treason. His testimony having been ruled out, obviously because it was not the case of a deceased witness, nor one where there had been an opportunity for cross-examination on a former trial between the same parties, the case is nevertheless cited by Peake in his work on Evidence (page 90) as authority for the proposition that the testimony of a deceased witness cannot be used in a criminal prosecution. The rule in England, however, is clearly the other way. Bull. N. P. 242; King v. Jolliffe, 4 Term R. 285, 290; King v. Radbourne, 1 Leach, Cr. Cas. 457; Rex v. Smith, 2 Starkie, 208; Buckworth's Case, T. Raym. 170. As to the practice in this country, we know of none of the states in which such testimony is now held to be inadmissible. In the cases of Finn v. Com., 5 Rand. (Va.) 701, Mendum v. Com., 6 Rand. (Va.) 704, and Brogy v. Com., 10 Grat. 722, the witnesses who had testified on the former trial were not dead, but were out of the state, and the testimony was held by the court of appeals of Virginia to be inadmissible, though the argument of the court indicated that the result would have been the same if they had been dead. In the case of State v. Atkins, 1 Overt. 229, the former testimony of a witness since deceased was rejected by the supreme court of Tennessee, but this case was subsequently overruled in Kendrick v. State, 10 Humph. 479, and testimony of a deceased witness, taken before a committing magistrate, was held to be admissible. See, also, Johnston v. State, 2 Yerg. 58; Bostick v. State, 3 Humph. 344. The rule in California was formerly against the admission of such testimony (People v. Chue, 57 Cal. 567; People v. Qurise, 59 Cal. 343), but it is now admitted under a special provision of the Code applicable to absent and deceased witnesses, which is held to be constitutional (People v. Oiler, 66 Cal. 101, 4 Pac. 1066). In the case of State v. Campbell, 1 Rich. Law, 124, the testimony of a deceased witness had been taken before a coroner, but in the absence of the accused, and of course it was held to be inadmissible.

Upon the other hand, the authority in favor of the admissibility of such testimony, where the defendant was present either at the examination of the deceased witness before a committing magistrate, or upon a former trial of the same case, is overwhelming. The question was carefully considered in its constitutional aspect by the supreme judicial court of Massachusetts in Com. v. Richards, 18 Pick. 434, in which it was said that 'that provision was made to exclude any evidence by deposition, which could be given orally in the presence of the accused, but was not intended to affect the question as to what was or was not competent evidence to be given face to face according to the settled rules of the common law.' The subject was also treated at great length by Judge Drummond in United States v. Macomb, 5 McLean, 286, Fed. Cas. No. 15,702, and the substance of a deceased witness' testimony given at a preliminary examination held to be admissible. All the cases up to that time were cited in the opinion, and the decision put upon the ground that, the right of cross-examination having once been exercised, it was no hardship upon the defendant to allow the testimony of the deceased witness to be read. From the following list of cases it will be seen that the same doctrine prevails in more than a dozen states: Summons v. State, 5 Ohio St. 325; Brown v. Com., 73 Pa. St. 321 (in both of which cases the question was elaborately considered); State v. McO'Blenis, 24 Mo. 402; State v. Baker, Id. 437; State v. Houser, 26 Mo. 431 (a most learned discussion of the subject); State v. Able, 65 Mo. 357; Owens v. State, 63 Miss. 450; Barnett v. People, 54 Ill. 325; U.S. v. White, 5 Cranch, C. C. 457, Fed. Cas. No. 16,679; Robinson v. State, 68 Ga. 833; State v. Wilson, 24 Kan. 189; State v. Johnson, 12 Nev. 121; Roberts v. State, 68 Ala. 515; State v. Cook, 23 La. Ann. 347; Dunlap v. State, 9 Tex. App. 179; O'Brian v. Com., 6 Bush, 564; State v. Hooker, 17 Vt. 658; Crary v. Sprague, 12 Wend. 41; U.S. v. Wood, 3 Wash. C. C. 440, Fed. Cas. No. 16,756; State v. Valentine, 7 Ired. 225. While the precise question has never arisen in this court, we held in Reynolds v. U.S., 98 U.S. 145, that, if the witness is absent by the procurement or connivance of the defendant himself, he is in no condition to assert his constitutional immunity.

The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law, in its wisdom, declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.

We are bound to interpret the constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject,-such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a bill of rights are subject to exceptions, recognized long before the adoption of the constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried further than is necessary to the just protection of the accused, and further than the safety of the public will warrant. For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination, nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility. They are admitted, not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice. As was said by the chief justice when this case was here upon the first writ of error (146 U.S. 140, 152, 13 Sup. Ct. 50), the sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath. If such declarations are admitted, because made by a person then dead, under circumstances which give his statements the same weight as if made under oath, there is equal, if not greater, reason for admitting testimony of his statements which were made under oath.

The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of, and many of the very cases which hold testimony such as this to be admissible also hold that not the substance of his testimony only, but the very words of the witness, shall be proven. We do not wish to be understood as expressing an opinion upon this point, but all the authorities hold that a copy of the stenographic report of his entire former testimony, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of the deceased witness,-such as was produced in this case,-is competent evidence of what he said.

4. Error is also assigned to the action of the court in refusing to permit the defendant to introduce the testimony of two witnesses-James and Violet-to impeach the testimony of Whitman, one of the deceased witnesses, by showing statements made by him contradicting his evidence upon the stand, upon the ground that the proper foundation had not been laid by interrogating Whitman himself as to his having made such contradictory statements.

In this connection the defendant proposed to prove by the witness James that Whitman told him in November, 1892, that he did not see Mattox on the night he did the shooting, because it was too dark; that he could not tell who did the shooting. That on the next day he told him that all that he had testified to on the former trial was false, and that he wanted to leave the country; and that, if he (witness) would go to see his (Mattox's) friends, and get him fifty dollars, he would give him (witness) twenty-five and himself take twenty-five, and leave the country; that he did not want to appear against Mattox, because what he had sworn to was not true. He also sought to prove by the witness Violet that in January, 1892, Whitman said emphatically and specifically that his testimony against Mattox was given under threats made to him in the corridors of the courthouse in Wichita; that just prior to his being called to the witness stand he was approached by one Stiles, who shook his finger in his face, and told him that if he dared to utter one word on the witness stand in favor of defendant, Mattox, he (Stiles) would see that he was sent over the road; further declaring that, if it had not been for such threats, his testimony would not have been given as it was.

Objection was made by the district attorney to the introduction of this testimony, upon the ground that Whitman had been examined and cross-examined upon the former trial; that the questions could not be propounded to the witnesses James and Violet for the purpose of impeachment, as the government had lost the opportunity, by the death of the witness Whitman, of putting him upon the stand, and contradicting them. The facts were that the statements of Whitman which the defendant proposed to prove by the witnesses James and Violet were made after the former trial, so that the proper foundation could not have been laid by asking Whitman whether he had made such statements.

The authorities, except in some of the New England states, are almost unanimous to the effect that, before a witness can be impeached by proof that he has made statements contradicting or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements. Justice to the witness himself requires not only that he should be asked whether he had ever made such statements, but his attention should be called to the particular statement proposed to be proven, and he should be asked whether, at such a time and place, he had made that statement to the witness whose testimony is about to be introduced. This method of impeachment was approved by this court in Conrad v. Griffey, 16 How. 38, wherein the rule is stated to be 'founded upon common sense, and is essential to protect the character of the witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred to, and show that they were made under a mistake, or that there was no discrepancy between them and his testimony.' In this case the deposition of a witness taken in the cause was sought to be impeached by a letter of the witness written before his deposition, and addressed to the plaintiff, with an affidavit annexed by him of the same date. The general rule is also approved in The Charles Morgan, 115 U.S. 69, 77, 5 Sup. Ct. 1172, although in that particular case it was held that proper foundation had been laid for the introduction of the evidence. The principle was also approved in Railway Co. v. Artery, 137 U.S. 507, 11 Sup. Ct. 129.

It is insisted, however, that the rule ceases to apply where the witness has died since his testimony was given, and the contradictory statements were either made subsequent to the giving of his testimony, or, if made before, were not known to counsel at the time he was examined; that, if such contradictory statements be not admitted, the party affected by his testimony is practically at the mercy of the witness; that the rule requiring a foundation to be laid is, after all, only a matter of form, and ought not to be enforced where it works a manifest hardship upon the party seeking to impeach the witness. The authorities, however, do not recognize this distinction. It is true that in Wright v. Littler, 3 Burrows, 1255, the dying confession of a subscribing witness to a deed that he had forged the instrument was admitted by Lord Chief Justice Wiles, and afterwards approved by the queen's bench, Lord Mansfield delivering the opinion; and that similar evidence was admitted in Aveson v. Kinnaird 6 East, 188, 196; but the authority of these cases was seriously shaken by Stobart v. Dryden, 1 Mees. & W. 615, in which it was held that the defendant could not give evidence of declarations made by a subscribing witness to a deed, who had since died, tending to show that he had forged or fraudulently altered the deed. In this connection it was said by Baron Parke that, 'if we had to determine the question of the propriety of admitting the proposed evidence, on the ground of convenience, apart from the consideration of the expediency of abiding by general rules, we should say that at least it was very doubtful whether, generally speaking, it would not cause greater mischief than advantage in the investigation of truth * * * If any declarations at any time from the mouth of subscribing witnesses who are dead are to be admitted in evidence, * * * the result would be that the security of solemn instruments would be much impaired. The rights of parties under wills and deeds would be liable to be affected at remote periods by loose deciarations of attesting witnesses, which those parties would have no opportunity of contradicting or explaining by the evidence of the witnesses themselves. The party impeaching the validity of the instrument would, it is true, have an equivalent for the loss of his power of cross-examination of the living witness; but the party supporting it would have none for the loss of his power of re-examination.'

The case of Ayers v. Watson, § 32 U.S. 394, 10 Sup. Ct. 116, differs principally from the one under consideration in the fact that it was a civil, instead of a criminal, case. It was an action of ejectment, in which the defendant introduced the deposition of one Johnson, taken in 1878 or 1880,-a surveyor, who had made a survey of the land in question. His deposition had been twice taken and used upon former trials, but prior to the last trial he had died. Plaintiff, in rebuttal, offered a deposition of the witness, taken in 1860, in a suit between other parties, in which his testimony in regard to the matters to which he testified in the deposition offered by defendant varied materially from these latter depositions. The deposition was held to be inadmissible, Mr. Justice Miller observing: 'While the courts have been some what liberal in giving the opposing party an opportunity to present to the witness the matter in which they propose to contradict him, even going so far as to permit him to be recalled and cross-examined on that subject after he has left the stand, it is believed that in no case has any court deliberately held that, after the witness' testimony has been taken, committed to writing, and used in the court, and by his death he is placed beyond the reach of any power of explanation, then in another trial such contradictory declarations, whether by deposition or otherwise, can be used to impeach his testimony. Least of all would this seem to be admissible in the present case, where three trials had been had before a jury, in each of which the same testimony of the witness Johnson had been introduced and relied on, and in each of which he had been cross-examined, and no reference made to his former deposition, nor any attempt to call his attention to it. This principle of the rule of evidence is so well understood that authorities are not necessary to be cited.'

The cases in the state courts are by no means numerous, but these courts, so far as they have spoken upon the subject, are unanimous in holding that the fact that the attendance of the witness cannot be procured, or even that the witness himself is dead, does not dispense with the necessity of laying the proper foundation. Thus in Stacey v. Graham, 14 N. Y. 492, 499, counsel, while conceding the rule, relied upon two circumstances to relieve the case from its influence. The first was that the attendance of the witness could not be procured at the time of the trial; and the second, that the declarations and statements offered to be proved were made after the witness had testified, and were a direct admission that he had sworn falsely. It was held that, if the statements came to the knowledge of counsel afterwards, and before the trial, it was his duty to apply for a commission, or move a postponement, until the evidence could be procured. 'The mere absence of the witness,' said the court, 'has never been considered a reason for allowing his unsworn statements to be proved in order to affect his credibility.' The question was further elaborately considered in Runyan v. Price, 15 Ohio St. 1, in which one of the subscribing witnesses to a will had died before the trial, and his testimony taken at the probate of the will was read in evidence. The contestants then offered evidence of his declarations respecting the capacity of the alleged testator to make a will at the time the one in question purported to have been made; but these were held, though by a bare majority of the court, to be inadmissible for the purpose of impeaching his testimony.

'It seems to us,' said the court, 'that to allow the death of the witness to work an exception would be to destroy the principle upon which the rule rests, and deny the protection which it was designed to afford. * * * In relieving one party of a supposed hardship, an equally serious one might be inflicted upon the other. * * * Without, therefore, the opportunity to the witness of explanation, or, to the party against whom offered, of re-examination, we are of opinion that the supposed declarations lack the element of credibility which they should possess before they can be used legitimately to destroy the testimony of the witness.' This case was approved in the subsequent case of Wroe v. State, 20 Ohio St. 460, 472, in which the statement of a person alleged to have been murdered, as to the manner in which he received the wound, which statement was claimed to be inconsistent with his dying declarations, was ruled out upon the ground that it was neither a part of the res gestae nor was it a dying declaration. It was held to be incompetent as original evidence or as impeaching testimony. 'To admit it would, to some extent, afford a substitute to the defendant for the loss of cross-examination, but it would deprive the deceased and the state of all opportunity for explanation.' In Craft v. Com., 81 Ky. 250, it was held that where the testimony of a witness, given upon a former trial, was reproduced, the witness having died, testimony to the effect that the witness, subsequent to the former trial, stated that the evidence given by him on that trial was false, was not competent. The rule is put upon the ground that, if the impeaching statements were admitted, there would be a strong temptation to the fabrication of testimony, by which important and true evidence might be destroyed. So in Hubbard v. Briggs, 31 N. Y. 518, 536, the testimony of a deceased witness given on a former trial of the case was read in evidence. Subsequently the defendant offered to read the deposition of this witness in a chancery suit, for the purpose of contradicting his evidence as read, and impeaching him. The testimony was held to have been properly ruled out, no foundation having been laid for it. The fact that the witness was dead was held not to change the rule. See, also, Griffith v. State, 37 Ark. 324; Unis v. Charlton's Adm'r, 12 Grat. 484; Kimball v. Davis, 19 Wend. 437, 25 Wend. 289.

While the enforcement of the rule, in case of the death of the witness subsequent to his examination, may work an occasional hardship by depriving the party of the opportunity of proving the contradictory statements, a relaxation of the rule in such cases would offer a temptation to perjury, and the fabrication of testimony, which, in criminal cases especially, would be almost irresistible. If it were generally understood that the death of a witness opened the door to the opposite party to prove that he had made statements conficting with his testimony, the history of criminal trials leads one to believe that witnesses would be forthcoming with painful frequency to make the desired proof. The fact that one party has lost the power of contradicting his adversary's witness is really no greater hardship to him than the fact that his adversary has lost the opportunity of recalling his witness and explaining his testimony would be to him. There is quite as much danger of doing injustice to one party by admitting such testimony as to the other by excluding it. The respective advantages and disadvantages of a relaxation of the rule are so problematical that courts have, with great uniformity, refused to recognize the exception.

There was no error in the action of the court below, and its judgment is therefore affirmed.

(Feb. 4, 1895.)

Notes