Kemper v. State , 63 Tex. Crim. 1 ( 1911 )

I concur in the disposition of this case. I do not concur in the decision on the question of reproducing the testimony of a deceased witness.

In my opinion it is unnecessary to decide that question in this case, and the opinion of the court in so deciding is obiter dicta. I regret the decision of this question in this case, because Judge Harper, one of the judges of this court, being recused, can not participate, and his opinion on the question can not therefore be had. In case his opinion on this question should concur with mine, this decision, as the court is now constituted, may be overruled when the question is reached in another case.

Section 10, article 1, of our present Constitution, which on this point is as follows: "In all criminal prosecutions the accused . . . shall be confronted with the witnesses against him . . ." is precisely the same as in every Constitution Texas has had, beginning with the Constitution adopted in 1836 by the Republic of Texas.

The first time this constitutional provision was construed was in 1856, when John W. Harris, O.C. Hartley and James Willie, who were appointed commissioners to prepare our Criminal Codes, under the authority of the Act of the Legislature of February 11, 1854, reported these Codes to the Legislature for adoption. The Code of Criminal Procedure, as prepared by them, which was enacted by the Legislature in 1856, had therein what is at present article 788, which authorized "the dying declaration of a deceased person to be introduced in evidence either for or against a defendant, when charged with the homicide of such deceased person," and has continuously been reenacted by the Legislature every time the Code of Criminal Procedure has been revised and reenacted since then. This article of the Constitution was first construed by the Supreme Court when composed of the old court in the case of Burrell v. State, 18 Tex. 713, in 1857, and said article of the Criminal Procedure, or rather evidence authorized by it, was then held not in violation of said constitutional provision. All the courts ever since then have adhered to that construction of said constitutional provision, as to evidence under said article 788, that is, dying declarations of the deceased.

The next time the question was construed by the Legislature was on November 10, 1866, which was the first Legislature after the adoption of the Constitution in June, 1866, when was passed what has continuously since then been article 814 of the Code of Criminal Procedure. By this article it was provided that "the depositions of the witness taken before any examining court or a jury of inquest, and reduced to writing, and certified according to law, in cases where the defendant was present when such testimony was taken and had the privilege afforded him of cross-examining the witness, may be read in evidence as depositions otherwise taken in a criminal case." This latter provision has also been reenacted by the Legislature each time since then when the statutes were revised and the Code of Criminal Procedure reenacted.

The next time it was construed was in 1871, by the Supreme Court, in the case of Greenwood v. State, 36 Tex. 587, and it was held that such testimony introduced under said statute was not violative of said constitutional provision.

After all of these settled constructions, both by the Legislature and all the courts, the people by and through their representatives submitted to be adopted, the Constitution of 1876, which contained the identical language on this subject as in the other Constitutions adopted by Texas. This settled construction by the courts and by the Legislature was well known by the bench and bar of the State, and by the people. If the people had desired to reverse or change that construction, the Constitutional Convention of 1875, which drafted the Constitution of 1876, could and certainly would have so changed the language as to conclusively determine that the previous construction given by the courts and the Legislature, was wrong, and could and would have required a different construction. They not having done so, in my opinion, is conclusive of the fact that the construction that had been previously given was the true and correct construction of said constitutional provision, and that such construction was then entirely satisfactory to the bench, bar and people.

Besides this, the great weight of authority by the various Supreme Courts of the States, and the Supreme Court of the United States, both before and since then, have been in accord with this construction. And all the decisions of this court, by unanimous concurrence of all the judges, so held, until the Cline case was decided by a divided court in 1896. The decision in the Cline case, and those following it, were overruled in the Porch case in 1907.

It, therefore, seems to me that if there ever was a question of construction that is settled, this one has been, and that it should not be reopened in this or any other case.

Other pending cases presented for decision in this court renders it impracticable, if not almost impossible, for me to now take the time to write my views out at length on this question. If I deem it necessary I may do so at some later date.

I therefore respectfully dissent from the decision of the court in this case on that subject.