Robertson v. State

• Decision Date: 11 October 1911
• Citation: 142 S.W. 533
• Parties: ROBERTSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 533

142 S.W. 533

ROBERTSON v. STATE.

Court of Criminal Appeals of Texas.

October 11, 1911.

On Rehearing, January 10, 1912.

Appeal from Criminal District Court, Galveston County; C. W. Robinson, Judge.

T. J. Robertson was convicted of second-degree murder, and he appeals. Affirmed.

Marsene Johnson, Aubrey Fuller, and Elmo Johnson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted by the grand jury of Galveston county charged with murder. He was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for five years.

This is the second appeal in this case, the report of the former trial being found in 54 Tex. Cr. R. 21, 111 S. W. 741. Since the former trial of this case one of the witnesses for the state, L. Rodriguez, had died, and another, R. Mori, had returned to Italy, and is domiciled in that country. Appellant complains that the state was permitted to reproduce the testimony of these two witnesses given at the former trial, alleging that under the Constitution he is entitled to be "confronted by the witnesses against him." He also complains that the state was permitted to introduce his testimony on the first trial of the case, saying, as he did not testify on this trial, it should not have been permitted.

These are all the grounds relied on for a reversal of the judgment in the motion for a new trial. The third ground, that the testimony of defendant on the first trial could not be introduced in evidence against him on a subsequent trial, has been decided by this court adversely to appellant's contention. Smith v. State, 75 S. W. 298; Preston v. State, 41 Tex. Cr. R. 300, 53 S. W. 127, 881; Collins v. State, 39 Tex. Cr. R. 441, 46 S. W. 933, and authorities cited in these cases.

The other two grounds may be considered jointly as they present the same question, Can the testimony of a witness adduced on one trial be reproduced against a defendant on a second or subsequent trial when the witness has since the first trial died or gone beyond the jurisdiction of the court? The questions here presented have been the cause of much controversy in this court since the decision in the case of Cline v. State, 36 Tex. Cr. R. 320, 36 S. W. 1099, 37 S. W. 722, 61 Am. St. Rep. 850. The Cline Case was overruled in the case of Porch v. State, 51 Tex. Cr. R. 8, 99 S. W. 1122, and recently the Porch Case has been overruled and the rule announced in the Cline Case held to be correct in the case of Kemper v. State, 138 S. W. 1025. The writer did not sit in the Kemper Case, having been of counsel in the trial court, and the opinion is by Judge Scott, who served as special judge. We agree with the contention of Judge Scott in that case that the Constitution is the highest law in the land, and is binding upon all courts and legislative bodies, neither having the right to make any innovation upon that instrument. However, we hold it is the duty of the courts to construe the Constitution, and in doing so, should a different construction be placed thereon than that announced in the Kemper Case, it would not be an innovation on the Constitution, but only a correct enunciation of the language of that instrument and making it speak what it was intended it should speak. The Constitution of 1876, in the Bill of Rights, provides in section 10 that the accused "shall be confronted by the witnesses against him." The Constitution of the Republic of Texas in 1836, when after the battle of San Jacinto and defeat of Santa Anna a Republican form of government was here instituted, this exact language was used. Again in 1845, when, after knocking at the door, Texas was admitted into the sisterhood of states, this same language was brought forward in the organic law; and was also reiterated in the Constitutions adopted in 1861, 1866, and 1869. The language has been the same in each of these instruments. The sixth amendment to the Constitution of the United States provides that the accused shall have the right to be "confronted with the witnesses against him," and this same language is written into the supreme law of almost every state in the Union, and was embodied in the Constitution of the United States, and the different states of the Union prior to the date of the organization of the Republic of Texas, and at the time of its admission into the Union. Consequently Texas but borrowed or copied this provision from the Constitutions and laws of the different governments of the English-speaking people. Owing to the different constructions placed on this provision of the Bill of Rights by this court at different periods of its existence, we have given the question more than usual consideration, and have searched, not only the decisions of our own state but those of the courts of the United States and of the courts of last resort of the different states, and have also burrowed into the rule of construction and the construction given this language by the courts of England prior to the Declaration of Independence by the colonies. It is recognized by all courts that this provision was a part and parcel of the English law at the time of the revolt of the colonies and the establishment of this Union, and we, in adopting this clause, but reiterated what was the law in the colonies prior to our independence.

So, when Texas adopted this clause, it was no announcement of a new right to a person accused of crime, but was simply a preservation of a right that was a part of the law of England, of this Union, and of almost every state therein, and in arriving at a proper construction thereof, and to give the language its proper meaning, we must look to the decisions of England, of the United States, and the courts of the different states in the Union, for of such of them as were in existence at the birth of the Texas Republic they had long had this principle embedded in their system of government, and it is a well-known rule of law that, when we adopt a phrase or borrow a provision from the Constitution or laws of another state or country, we adopt that clause with the construction placed thereon by the courts of that state or country. In speaking of the Constitution of the United States and the amendments thereto, the Supreme Court in Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819, says: "As the object of the first eight amendments to the Constitution was to incorporate into the fundamental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother country, the construction given to those principles by the English courts is cogent evidence of what they were designed to secure, and of the limitations that should be put upon them. This is but another application of the familiar rule that, where one state adopts the laws of another, it is also presumed to adopt the known and settled construction of those laws by the courts of the state from which they are taken." In 1831, prior to the time Texas was admitted into the Union, the United States Supreme Court had held: "The statutes passed in England before the emigration of our ancestors, which were in amendment of the law, and are applicable to our situation, constitute part of our common law." Patterson v. Winne, 5 Pet. 233, 8 L. Ed. 108; Tayloe v. Thomson, 5 Pet. 358, 8 L. Ed. 154. And in the case of Cathcart v. Robinson, 30 U. S. 264, 8 L. Ed. 120, it is held: "The construction which British statutes had received in England at the time of their adoption in this country, indeed to the time of the separation of this country from the British empire, may very properly be considered as accompanying the statutes themselves, and forming an integral part thereof." These opinions and enunciations of the law were written by such eminent jurists as Chief Justice Marshall and Mr. Justice Story.

In a later case—McDonald v. Hovey, 110 U. S. 619, 4 Sup. Ct. 142, 28 L. Ed. 269—Mr. Justice Bradley, speaking for the court, says: "It is a received canon of construction acquiesced in by this court that, where English statutes have been adopted into our own legislation, the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts or has been received with all the weight of authority." Mr. Cooley in his work on Constitutional Limitations says: "The colonists also had Legislatures of their own, by which laws had been passed which were in force at the time of their separation, and which remained unaffected thereby. When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England or of Great Britain amendatory of the common law, which they had in like manner adopted; and, third, of the colonial statutes. The first and second constituted the American common law." And Mr. Story, Mr. Black, and others lay down the rule of construction to be: "Where a clause or provision in a Constitution, which has received a settled judicial construction, is adopted in the same words by the framers of another Constitution, it will be presumed that the construction thereof was likewise adopted." 6 Am. & Eng. Ency. of Law, p. 277, lays down the rule: "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"—citing the following authorities: Patterson v. Winn, 5 Pet. 240, 8 L. Ed. 108; Van Ness v. Pacard, 2 Pet. 144, 7 L. Ed. 374; Ex Parte Watkins, 7 Pet. 568, 8 L. Ed. 786; Carter v. Balfour, 19 Ala. 814; Horton v. Sledge, 29 Ala. 478; Matthews v. Ansley, 31 Ala. 20; Pierson v. State 12 Ala. 149; ...