State v. McO'Blenis

• Citation: 24 Mo. 402
• Parties: THE STATE, Respondent, v. MCO'BLENIS, Appellant.
• Decision Date: 31 March 1857
• Court: United States State Supreme Court of Missouri

24 Mo. 402

THE STATE, Respondent,

v.MCO'BLENIS, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. A deposition of a witness taken upon the preliminary examination before a committing magistrate in the presence of the accused, may be received in evidence on the trial upon proof of the death of such witness. (RYLAND, Judge, dissenting.)

2. The provision of the Constitution of this state declaring “that in all criminal prosecutions the accused has the right to meet the witnesses against him face to face,” does not render such evidence illegal. (RYLAND, Judge, dissenting.)

Appeal from St. Louis Circuit Court.

Robert McO'Blenis was indicted at the April term of the St. Louis Criminal Court, in the year 1855, for the murder of Benjamin F. Brand. The indictment contained but one count, and that was for murder in the first degree. The cause was taken by change of venue to the St. Louis Circuit Court.

Upon the trial the State offered to read in evidence the deposition of Louis Nievergelder, a witness sworn and examined on behalf of the State on the examination of the defendant before Mann Butler, the committing magistrate, on the charge of feloniously shooting and killing Benjamin F. Brand, being the same charge for which the defendant was afterwards indicted and was then being tried. The said Nievergelder had departed this life since his examination before the committing magistrate. It was admitted by the defendant that the witness testified before the magistrate on oath, in the presence of the defendant, and was cross-examined by the defendant; that his testimony was reduced to writing by the magistrate, and that the witness signed the same; that the paper offered was the testimony of the witness, so reduced to writing and signed by him and returned by the magistrate, taking the same and committing the defendant to jail without bail, duly certified and delivered to the jailer, accompanying the warrant of commitment; and that the witness was dead since his examination as aforesaid; and all preliminary proof was waived by the defendant, the only objection made by the defendant being as to the competency of said testimony, the witness being since deceased. But the defendant objected to the reading of the paper, because it was not legal evidence against him under the Constitution of this state. The court overruled the objection, and permitted the paper to be read in evidence. Exceptions were duly taken.

The jury rendered a verdict in the following form: “We of the jury find the defendant guilty of murder in the second degree, and assess punishment to imprisonment in penitentiary for ten years.”

A motion for a new trial having been overruled, the defendant appealed.

U. Wright (with whom were E. Bates and Blennerhassett), for appellant.

I. The introduction of Nievergelder's deposition was a violation of the bill of rights of the people of Missouri in both the letter and the spirit of that instrument. In our declaration of rights it is said: “In all criminal prosecutions the accused has the right to meet the witnesses against him face to face.” (Art. 13, Sec. 9.) Now what these words may mean, it is at least certain that what they secure to the accused is beyond the control of any department of the government. The general assembly cannot abrogate it by statute, nor can the courts judicially legislate it away. The thing secured is above all the “discretion” of courts, sound or unsound--above all “policy” of legislatures, wise or foolish. Whatever may be the right given by the words, it is a fixed right. It exists intact, or not at all. It cannot be halved, quartered, or in less degree subdivided. It cannot be made to yield to expediency or necessity. No court has power to say of it: “We give the right in part; what is withheld, is from necessity.” Within the circle of expediency, policy and discretion, courts may hold such language, but it is not constitutional language touching a constitutional right. What is the right secured by the words? I hold it to be nothing more, nothing less, nothing other, than the permanent establishment, by the fundamental law, of the status of every witness against the accused in a criminal prosecution.

It is a transparent mistake to confound this right with any rule of evidence. No rule of evidence is established by it, nor is any such object aimed at. The relative position of the “witness” and the accused is established, but what the witness may lawfully swear from that position is not established. That is left to the courts, and is regulated by them under the system known as the rules of evidence. But whatever it may be lawful for the “““witness” to swear against the accused under those rules, must be heard from his position fixed by the Constitution. If the witness be not in that position assigned him by the Constitution, he cannot be heard at all. Nor does this provision of the bill of rights decide whether the “witness” shall be sworn; nor how he shall be examined or cross-examined; nor whether there shall be any cross-examination at all. Such questions must find their answers outside of the Constitution, or at least outside of this provision of it.

The “accused” shall meet the “witness face to face.” He shall thus meet him in “all criminal prosecutions”--that is the right. A meeting might involve only presence, contiguity; but that is not enough. It shall be a meeting in the mode and fullness in which man must meet his God in the day of final judgment, and that is “face to face.” The whole purpose of the provision is to thwart falsehood. If perjury were impossible, the provision would be without meaning. Two objects were secured by the words: First, the witness must look upon the accused, the intended victim of a false oath, that he may see the value of what he is about to destroy, and the accused shall look upon the witness as he swears; second, the triers shall look upon the false witness and gather the perjury from his aspect. The means are simple, but human experience has established their efficacy as tests of truth. They invoke only moral power, but that after all is the highest power. It is hard to say which of the two instrumentalities is the greater. “And the Lord turned and looked upon Peter;” “and Peter went out and wept bitterly.” (Luke, Chap. 22.) When affidavits were read to Mary of Scotland, in prison, imputing to her great crimes, the unhappy queen said: “Who are the witnesses? (for their names were not given;] bring them before me, and they will forswear their falsehoods when they meet me face to face.” The other instrumentality (the right of the triers to look upon the witness) is auxiliary to this. It brings knowledge of whatever is accomplished for innocence by the prior means home to the right quarter, and in the right way; but its function does not stop there. It acts independently of the rules of evidence, by its own inherent power; and sometimes renders a right derived from those rules unnecessary. Thus the inspection by the jury of a witness may dispense with a cross-examination; but when this fails, it becomes auxiliary also to the rules of evidence, and gives to the right of cross-examination, derived from those rules ( not from the Constitution), a power which it could not have without it. It is thus sufficiently manifest that the status of the “witness,” in a criminal prosecution, while it creates no rule of evidence, secures to every man accused of crime the largest amount of impunity from the operation of those rules which justice can allow.

When and where shall this meeting transpire? Not in the secret chamber of the grand jury--not when complaint is made before a justice preliminary to a warrant; but whenever and wherever a “criminal prosecution” has ceased to be a proceeding ex parte, and has taken the matured form of a legal accusation of crime, and the witness is brought to sustain it. In “all criminal prosecutions” the right shall obtain, says the bill of rights. These words embrace, I think, every form of “criminal prosecution” known to our laws. In prosecutions by presentment or indictment, the additional right of a speedy trial by a jury of the vicinage is given; but I am not prepared to say that the right to meet the witness “face to face” is confined to that tribunal. Doubtless this security was mainly intended for the hour and place of actual peril, when liberty and life should be in greatest jeopardy, when the accused should stand before a tribunal having power over either or both; but the words are broad enough to cover the initiate prosecution, whenever and wherever it takes the matured form of a legal accusation of crime. And the same words, as well as the reasons on which they rest, carry the right through every stage of the “““criminal prosecution,” so long as the “witness” can by the mode of procedure be brought “against” the accused. While the “witness” may swear, he shall swear “face to face” with the accused. The security lasts as long as the peril, and the protection never ends until the peril is merged in judgment.

I deem it very fit to put a like question touching other and kindred rights secured by the same pregnant section of the bill of rights. How often shall the accused have counsel? and where? If he once have counsel, is the Constitution satisfied? If he have counsel before the examining court, may counsel be denied him before the jury? If once before a jury he have counsel, may he be deprived of counsel on the second trial? How often may the accused have the right of trial by jury? If once a jury be impanneled in his case, is the constitutional guaranty at an end? May he be denied that tribunal afterwards? If the jury bring no verdict and are discharged, or if the verdict be set aside, may that constitutional “ bulwark” be from that time abandoned as having done its office, and the State proceed to judgment by a simpler and more summary process? How often shall the accused have the right to compulsory process to...