State v. Houser

• Court: United States State Supreme Court of Missouri
• Writing for the Court: NAPTON
• Citation: 26 Mo. 431
• Decision Date: 31 March 1858
• Parties: THE STATE, Respondent, v. HOUSER, Appellant.

26 Mo. 431

THE STATE, Respondent,
v.
HOUSER, Appellant.

Supreme Court of Missouri.

March Term, 1858.

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

2. A deposition of a witness, taken upon the preliminary examination before a committing magistrate, in the presence of the accused, is not admissible in evidence on the trial upon proof that the witness is beyond the jurisdiction of the court.

3. If, however, the absence of the witness at the trial is procured by the defendant, the deposition would be admissible in evidence.

Appeal from St. Louis Criminal Court.

Stephen H. Houser was indicted in Gasconade county for the murder of William D. Farris. The cause was removed by change of venue to the St. Louis criminal court. At the trial, at the May term, 1857, the deposition of one Mary Henson, taken before the examining magistrate, was read in evidence against the defendant. It appeared that at the time of the homicide--July, 1853--said Mary Henson resided in Gasconade county; that when the venue was changed she was recognized to appear in the St. Louis criminal court; that she did appear in the court at the November term, 1856; and was again recognized to appear at the January term, 1857. At that term the cause was continued by the State on account of her absence. It appeared that said Mary Henson resided in Gasconade county from the date of the homicide until the fall of 1856; that about the date of her attendance in St. Louis at the November term, 1856, of the St. Louis criminal court, she disappeared and has not been since heard of. It also appeared that various subpœnas, directed to said Mary Henson, had issued from the St. Louis

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criminal court and had been returned “not found” by the sheriff of Gasconade county and the marshal of St. Louis county.

The deposition was admitted and read. The defendant was convicted of murder in the first degree and was sentenced to be hung.

U. Wright, for appellant, contended (among other things) that the introduction of the deposition of Mary Henson against the accused was a grave and manifest violation of the bill of rights, and cited 2 Jones (Folio), 53; 6 Howell's State Trials, 771; 2 Russ. on Cr. 888; 8 Carr. & P. 167; 6 Cow. 163; 5 Rand. 701; 14 Mass. 237.

Mauro, (circuit attorney,) for the State.

I. The deposition of Mary Henson was admissible. The constitution does not interfere with the admission of such testimony. (State v. McO'Blenis, 24 Mo. 402.) The accused then met the witness face to face. The examination was competent to be read in evidence under some circumstances, and its admissibility is dependent entirely upon the rules of evidence. The State made every exertion in its power to secure the attendance of the witness. It could not possibly do more. If the witness were in fact dead she could not have been further beyond the power of the State. This deposition was not only evidence but the best evidence. What difference would it have made if the death of Mary Henson had in point of fact been established, for she could not have been further beyond the control of the State, and her death would not in the least degree have improved the character of the testimony? Had this been a civil suit the deposition would have been admissible under the facts presented. (1 Greenl. Ev. p. 217.) The rules of evidence in civil and in criminal cases are the same. (1 Greenl. Ev. p. 86; 1 Rosc. C. Ev. 73; 2 Russ. on Cr. 588; U. S. v. Macomb, 5 McLean, --; 18 Pick. 437; 15 Ala. 753; Davis v. State, 17 Ala. 357; State v. Hooker, 17 Verm. 658; U. S. v. Hood, 3 Wash. C. C. 444; Rex v. Watson, 2 Stark. 116; 26 How. St. Tr. 376; U. S. v. Britton, 2 Mason, 464.)

[26 Mo. 433]

NAPTON, Judge, delivered the opinion of the court.

The principal question in this case is, whether the deposition of a witness taken before the examining court can be used against the prisoner on his trial, it appearing that the witness is beyond the jurisdiction of the court.

In the case of the State v. McO'Blenis, 24 Mo. 402, it was held, that where the witness was dead his deposition was admissible. The propriety of this decision has been questioned, and the subject has again been elaborately discussed with a view to its examination by this court as it is now constituted. This investigation by this court has been made, and it will be perhaps sufficient to say it has resulted in a conclusion to adhere to the former opinion. Without undertaking to add any thing to the reasoning upon which the decision of the court was placed in the former opinion, I will merely advert to one or two historical facts which seem to confirm the view then taken of the subject.

Upon the passage of the stamp act by the British parliament, one of the first of the colonial assemblies that passed resolutions in regard to it was the general assembly of Virginia. In these resolutions the general assembly assert that they were entitled to enjoy all the rights and privileges which were secured to British subjects. They declared “That the first adventurers and settlers of this his majesty's colony and dominion of Virginia brought with and transmitted to their posterity, and all other his majesty's subjects since inhabiting in this his majesty's colony, all the privileges and immunities that have been at any time held, enjoyed and possessed by the people of Great Britain.” They further resolved, “That by the two royal charters granted by King James I., the colonies aforesaid are declared entitled to all privileges of faithful liege and natural born subjects to all intents and purposes as if they had been abiding and born within the realm of England.” In 1774 the delegates from the colonies assembled in Congress, and one of their first acts was a declaration of rights of the colonies. Among other

[26 Mo. 434]

resolutions, they declared “That our ancestors who first settled these colonies were, at the time of their emigration from the mother country, entitled to all the rights, liberties and immunities of free and natural born subjects within the realm of England.” “That by such emigration they by no means forfeited, surrendered or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them as their local and other circumstances enable them to exercise and enjoy.” “That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by the peers of the vicinage according to the course of that law.” “That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization and which they have by experience, respectively, found to be applicable to their several local and other circumstances.” “That these his majesty's colonies are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.”

These declarations, and others not deemed necessary to be copied here, will be found to have been subsequently transfused into the bills of rights and constitutions of nearly all the original thirteen states and from these into the constitutions of those states which have since been formed. One of the...