Mattox v. United States

Citation39 L.Ed. 409,15 S.Ct. 337,156 U.S. 237
Decision Date04 February 1895
Docket NumberNo. 667,667
CourtUnited States Supreme Court

Plaintiff in error was convicted on January 16, 1894, in the district court of the United States for the district of Kansas, of the murder of one John Mullen, which was alleged to have been committed on December 12, 1889, '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 Cherokee, Creek, and Seminole Indian tribes, * * * the same being a place and district of country under the exclusive jurisdiction of the United States, and within the exclusive jurisdiction of this court.' The indictment was returned to the September term, 1891, of the district court at Wichita, at which term defendant was first tried and convicted. From this conviction he sued out a writ of error from this court, which reversed the judgment of the district court, and remanded the case for a new trial. 146 U. S. 140, 13 Sup. Ct. 50. The case was continued until the December term, 1893, at which term plaintiff was again put upon his trial, and again convicted, whereupon he sued out this writ of error.

Chas. R. Reddick, W. W. Dudley, L. T. Michener, and A. S. Browne, for plaintiff in error.

Asst. Atty. Gen. Conrad, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the 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...

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