State v. Baker

• Decision Date: 31 March 1857
• Citation: 24 Mo. 437
• Parties: THE STATE, Respondent, v. BAKER, Appellant.
• Court: Missouri Supreme Court

24 Mo. 437

THE STATE, Respondent,

v.BAKER, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. The State v. McO'Blenis, 24 Mo. 402, affirmed.

Appeal from St. Louis Circuit Court.

Uriel Wright, for appellant.

A review of the decision made by this court in the case of McO'Blenis is respectfully and earnestly urged, 1st, because that decision was made by a divided bench on a constitutional question; 2d, because of the importance of the question involved, regarded either as a limitation on the judiciary department of the government, or as a personal security of the citizen against the oppressive action of the government; and, 3d, because of the grounds on which the decision is put by the majority of the court.

If the reasoning of this decision be properly understood by me, several propositions, urged in my former argument, are conceded, viz: 1st, it is granted that the provision of the bill of rights, supposed to have been violated, did not establish or seek to establish any rule of evidence; 2d, it is conceded that it was not the object nor the effect of that provision to secure the right of cross-examination; 3d, it is conceded that the provision contemplates and provides for this meeting of the accused and the witnesses against him in “that tribunal where his guilt or innocence is to be finally passed upon”--that is, before the traverse jury; 4th, it is admitted that this right is an important and valuable personal security--valuable as a test of the truth or falsehood of what is sworn by the witness against him; but it is insisted that the right is not secured in all cases--that the provision is not universally applicable--that it establishes only a wise general rule-- that there are exceptional cases out of its operation--and that the case at bar was one of the exceptions. The decision is further understood to maintain that the exceptions were as well understood as the rule out of which they came; and that as a consequence of this knowledge, in adopting the rule the framers of our bill of rights must be understood as adopting the exceptions.

The result of the reasoning employed in the decision is, that to express in words the true meaning of the bill of rights, it should be read in some one or all of the following phraseologies; 1st, “In all criminal prosecutions the accused has the right to meet the witnesses against him face to face, except in cases of dying declarations in reference to the same homicide, and in cases where the deposition of a witness has been regularly taken in a judicial proceeding against the accused in respect to the same transaction, and in his presence, when the subsequent death of the witness has rendered his production in court impossible;” or 2d, “In all criminal prosecutions the accused has the right to meet the witnesses against him face to face, except in cases where necessity, or the proper administration of justice shall dispense with the presence of the witness in open court;” or 3d, “ Except in cases wherein necessity shall render a resort to subordinate evidence proper in furtherance of justice;” or 4th, “ Except in cases where, by the rules of the common law, subordinate testimony is legal.”

I. An exception to a provision so fundamental as the constitutional declaration of the rights of a people can only be declared by the instrument itself. This is a clear result deduced from the nature and object of the instrument. It is organic, fundamental law--the only law that is fundamental, because unchangeable by the organism it creates. It is binding on all the parts of that organism--that is to say, on every department of the government. No modification, not the slighest, can be made of it by the judiciary, by the executive, or by the Legislature. It is a prohibition on all, and its only sensible foundation is distrust of all. A power in either department of the government to declare exceptions to its provisions not therein made, is incompatible with the idea of prohibition in the instrument. It is no longer a prohibition on that department which can make the exception. The power to create exceptions is a power above the Constitution; and the power to declare exceptions not declared in the instrument is a power to create exceptions. The appellatives, “wise,” “expedient,” “just,” “necessary,” applied to the exceptions created, constitute no limitations of the creating power; nor are they palliatives of the power exercised; much less are they authority. The power to create exceptions is a power to destroy the instrument. The instrument is of infinite obligation or of none. The judiciary may construe the Constitution, but they must construe its words as they are written.

II. Tried by this test, there is no exceptional case which dispenses the meeting of the witnesses and the accused before the tribunal of final judgment. Not a word of the Constitution hints at such exception. The words used are words of universality. “In all criminal prosecutions” this meeting shall transpire. If it had been added “without exception,” the idea of universality would not be strengthened. The infinite comprehensiveness of “all” renders ““without exception” a tautological platitude. The added words might show a desire for emphasis, but they could not impart it. If the trial of Baker was a criminal prosecution, it was embraced by the clause, for it embraces “ all criminal prosecutions.” Can the court strike out the word “all” and insert ““most” or “some;” or strike out “all” and insert nothing? And is not that precisely what the court in effect has done? Again, why did the framers of the Constitution write “all” before “criminal prosecutions?” It must be assumed that they wrote it for a purpose. It must also be assumed that they chose the word to accomplish that purpose; and it cannot be denied that the word selected is the most comprehensive in our language. It cannot be denied that if their purpose was to cut off all exceptions to the rule they were about to establish, the selected word was the best word in our language to accomplish that purpose. The only other thing necessary to the argument to give it the force of demonstration, is to assume that they knew the meaning of the word. Even that assumption is not necessary, for it is susceptible of proof from the use they make of it in the same section. “In all criminal prosecutions the accused has the right to be heard by himself and counsel.” (Constitution, Art. 13, §9.) Did they mean that there should be any exception to that? “In all criminal prosecutions the accused has the right to demand the nature and cause of accusation.” Did they mean to cut off exceptions to that rule? “In all criminal prosecutions the accused has the right to have compulsory process for witnesses in his favor.” Did they mean to allow exceptions to that rule? “In all criminal prosecutions on indictment or presentment the accused has the right to a speedy trial by an impartial jury of the vicinage.” Was it their understanding that ““““practical wisdom” or “great expediency” or “necessity” should constitute an exception to this rule? “In all criminal prosecutions the accused cannot be compelled to give evidence against himself.” Did they mean that cases might arise in which compulsion would be lawful? “In all criminal prosecutions the accused shall not be deprived of life, liberty or property, but by the judgment of his peers or the law of the land.” Was it their purpose to allow an exception to this rule? The only remaining part of this section is “in all criminal prosecutions the accused has the right to meet the witnesses against him face to face.” Is not the question as proper in this case as in the preceding ones? Did they mean to be understood as allowing exceptions to this rule? On what known rule of construction cau the same word, applied as a word of qualification seven times in the same section, be construed to have different significations in the minds of those who employed it? Did the framers of the Constitution employ the word six times in the same sentence to cut off all exception, and in the seventh to create exceptions; and this, too, in the case of a word which has no signification in the law different from its vernacular import?

Add to this the absence of all intimation, suggestion or hint by them of a difference in the signification of the word as used by them in its application to the various subjects embraced in the section, and the discrimination assumed becomes impossible. Extend the subject of inquiry to the whole instrument, and in no part of it is this discrimination a possibility. Again, in construing the bill of rights of a people, special observance of the words of the instrument is a manifest duty, because they are intended to express limitations upon the powers of the government, and prohibitions upon every department thereof. Being limitations founded in distrust of every department of the government, and essential to liberty, it must be presumed that they are marked out with care; and since words, written words only, are employed to mark the boundaries of power, it must, therefore, be presumed that words are chosen for their aptitude to enunciate clearly and unmistakably the limitations intended. Perspicuity--desirable at all times-- becomes a necessity when limitations are to be put upon power, for power will not see a limitation unless it be clearly defined. In the enunciation of a bill of rights, it must be assumed that phraseology is studied. I submit with confidence that our language does not furnish a clearer paragraph than that provision of the bill of rights which is the subject of inquiry.

III. If exceptions were recognized by the common law to the rule in question, and such exceptions were known to the framers of our bill of rights at the time of its adoption, words of universality must be understood as intended to exclude the exceptions. In other words--because it was known that, by the practice of courts acting under the...