By the Revised Statutes of the United States, it is
provided:
"§ 5508. If two or more persons conspire to injure, oppress,
threaten or intimidate any citizen in the free exercise or
enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his having
so exercised the same; or if two or more persons go in disguise on
the highway, or on the premises of another, with intent to prevent
or hinder his free exercise or enjoyment of any right or privilege
so secured, they shall be fined not more than five thousand dollars
and imprisoned not more than ten years, and shall, moreover, be
thereafter ineligible to any office or place of honor, profit, or
trust created by the Constitution or laws of the United
States."
"§ 5509. If in the act of violating any provision in either of
the two preceding sections, any other felony or misdemeanor be
committed, the offender shall be punished for the same with such
punishment as is attached to such felony or misdemeanor by the laws
of the state in which the offence is committed."
Several persons were indicted under the above provisions in the
Circuit Court of the United States for the Northern District of
Alabama for the crime of murder committed in execution of a
conspiracy to injure, oppress, threaten and intimidate one Thompson
because of his having informed the United States authorities of
violations by the conspirators of the laws of the United States
relating to distilling. In Alabama, murder in the first degree is
punishable by death or imprisonment for life at the discretion of
the jury. At the preliminary trial before a United States
commissioner, Taylor, one of the accused, testified, and his
evidence was put in writing and signed by him. It was sufficient,
if accepted, to establish
Page 178 U. S. 459
the guilt of all the defendants. The accused had opportunity to
cross-examine him. At the final trial in the circuit court, Taylor,
who had pleaded guilty, was called as a witness for the government,
but did not respond. He had disappeared, although seen in the
corridor of the court building about an hour before being called.
His absence was not by the procurement or advice of the accused,
but was due to the negligence of the officers of the government.
The court, over the objections of the accused, allowed Taylor's
written statements made under oath at the examining trial to be
read in evidence to the trial jury. The accused were found guilty
as charged in the indictment and sentenced to the penitentiary for
life. At the trial, one of the accused testified and stated that he
and Taylor committed the murder, and that the other defendants knew
nothing of it and had nothing to do with it.
Held:
(1) That no constitutional objection could be urged against
sections 5508 and 5509.
(2) That, under the Act of January 15, 1897, c. 29, 29 Stat.
487, the Circuit Court could not have imposed the penalty of death
for the offense charged, but only imprisonment for life.
(3) That, under the Circuit Court of Appeals Act, 1891, any
criminal case involving the construction or application of the
Constitution of the United States can be brought after final
judgment directly to this Court from the Circuit Court.
(4) That the admission as evidence of the written statements
made by Taylor at the examining trial was in violation of the
rights of the accused under the clause of the Sixth Amendment to
the Constitution of the United States declaring that in all
criminal prosecutions the accused shall enjoy the right to be
confronted with the witness against him.
(5) That the defendant, who testified under oath as to his
guilt, and whose testimony was sufficient to convict him
independently of Taylor's written statement at the examining trial,
was not entitled to a reversal for the error committed in allowing
that statement to be read, because it could not have prejudiced
him.
The case is stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Columbus Winchester Motes, alias Chess Motes, Walter W. Motes,
William Robert Taylor, Jasper Robinson, John
Page 178 U. S. 460
Littlejohn, and Mark Grant Blankenship, were indicted in the
Circuit Court of the United States for the Southern Division of the
Northern District of Alabama under sections 5508 and 5509 of the
Revised Statutes of the United States.
Those sections are as follows:
"5508. If two or more persons conspire to injure, oppress,
threaten, or intimidate any citizen in the free exercise or
enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his having
so exercised the same; or if two or more persons go in disguise on
the highway, or on the premises of another, with intent to prevent
or hinder his free exercise or enjoyment of any right or privilege
so secured, they shall be fined not more than five thousand dollars
and imprisoned not more than ten years, and shall, moreover, be
thereafter ineligible to any office or place of honor, profit, or
trust created by the Constitution or laws of the United
States."
"5509. If, in the act of violating any provision in either of
the two preceding sections, any other felony or misdemeanor be
committed, the offender shall be punished for the same with such
punishment as is attached to such felony or misdemeanor by the laws
of the state in which the offense is committed."
The first count of the indictment charged in substance that, on
the 14th day of March, 1898, and within the jurisdiction of the
court, the persons above named conspired to injure, oppress,
threaten, and intimidate one W. A. Thompson, a citizen of the
United States, in the free exercise and enjoyment of a right and
privilege secured to him by the Constitution and laws of the United
States, and because of his having exercised the same, in that he
had about the second day of October, 1897, informed one Robert A.
Moseley, United States commissioner for the Northern District of
Alabama, that Bob Taylor, Chess Motes, Ben Morris, Jasper Robinson,
and Walter Motes had, about the months of July, August, September,
October, November, and December 1895, violated the internal revenue
laws of the United States by unlawfully carrying on the business of
distillers without having given bond, as required by law, and
having in their possession and custody and under their control
Page 178 U. S. 461
a still and distilling apparatus set up without having the same
registered. It was also charged that, in furtherance of the
conspiracy so formed and to effect the object thereof, the
accused
"did on, to-wit, about the 14th day of March eighteen hundred
and ninety-eight, go upon the highway and did then and there, in
the County of Talladega, in the State of Alabama, in the Southern
Division of the Northern District of Alabama, and within the
jurisdiction of said court, unlawfully, willfully, premeditatedly,
deliberately, and with malice aforethought kill and murder the said
W. A. Thompson by shooting him with a gun or guns, because he, the
said W. A. Thompson, had reported to the said Robert A. Moseley,
United States commissioner as aforesaid, said violation of the
internal revenue laws of the United States by the said Bob Taylor,
Chess Motes, Ben Morris, Jasper Robinson, and Walter Motes, as
aforesaid, contrary to the form of the statute in such case made
and provided and against the peace and dignity of the United States
of America."
The third count differed from the first one only in charging a
conspiracy, formed by the same persons, to injure, oppress,
threaten, and intimidate Thompson because of his having, about
March 8th, 1898, informed a deputy collector of internal revenue
that Mark Grant Blankenship had, about the above date, carried on
the business of distiller in violation of law; also that to effect
the object of that conspiracy, and because of Thompson's having
given such information to the deputy collector of internal revenue,
the accused had unlawfully, willfully, premeditatedly,
deliberately, and with malice aforethought killed and murdered
him.
There are seven counts in the indictment, but the first and
third are sufficient to show the nature of the charges against the
accused and to bring out the questions disposed of by this
opinion.
It is recited in the bill of exceptions that Taylor pleaded
guilty, but the transcript does not contain any entry of record
showing such to be the fact.
The jury found the "defendants Walter W. Motes, Columbus W.
Motes, Jasper Robinson, John Littlejohn, and Mark Grant Blankenship
guilty as charged in the indictment," and
Page 178 U. S. 462
in their verdict asked
"the mercy of the court for the four defendants, Walter W.
Motes, Jasper Robinson, John Littlejohn, Mark Blankenship, and
especially for John Littlejohn and Jasper Robinson."
Motions in arrest of judgment and for new trial were overruled,
and judgment was entered upon the verdict, sentencing the
defendants other than Taylor to imprisonment in the penitentiary
for life.
We have seen that, by section 5508 of the Revised Statutes, it
is made an offense against the United States for two or more
persons to conspire to injure, oppress, threaten, or intimidate any
citizen in the free exercise or enjoyment of any right or privilege
secured to him by the Constitution or laws of the United States,
the punishment prescribed being a fine of not more than $5,000,
imprisonment not more than ten years, and ineligibility to any
office or place of honor, profit, or trust created by the
Constitution or laws of the United States. And by section 5509 it
is provided that if in committing the above offense, any other
felony or misdemeanor be committed, the offender shall suffer such
punishment as is attached to such felony or misdemeanor by the laws
of the state in which the offense is committed.
No question has been made -- indeed none could successfully be
made -- as to the constitutionality of these statutory provisions.
Ex Parte Yarbrough, 110 U. S. 651;
United States v. Waddell, 112 U. S.
76. Referring to those provisions and to the clause of
the Constitution giving Congress authority to pass all laws
necessary and proper for carrying into execution the powers
specifically granted to it, and all other powers vested in the
government of the United States or in any department or officer
thereof, this Court has said:
"In the exercise of this general power of legislation, Congress
may use any means appearing to it most eligible and appropriate,
which are adapted to the end to be accomplished and are consistent
with the letter and the spirit of the Constitution."
Logan v. United States, 144 U.
S. 263,
144 U. S. 283,
and authorities there cited. It was the right and privilege of
Thompson, in return for the protection he enjoyed under the
Constitution and laws of the United States, to
Page 178 U. S. 463
aid in the execution of the laws of his country by giving
information to the proper authorities of violations of those laws.
That right and privilege may properly be said to be secured by the
Constitution and laws of the United States. And it was competent
for Congress to declare a conspiracy to injure, oppress, threaten,
or intimidate a citizen because of the exercise by him of such
right or privilege to be an offense against the United States.
The reference in the above sections to the laws of the state in
which the offense was committed makes it necessary to ascertain
from the laws of Alabama what punishment could be inflicted for the
crime that was committed while the conspiracy referred to in
section 5508 was being carried into execution.
By the Code of Alabama it is provided (c. 158):
"§ 4854. Every homicide, perpetrated by poison, lying in wait,
or any other kind of willful, deliberate, malicious, and
premeditated killing; or committed in the perpetration of, or the
attempt to perpetrate, any arson, rape, robbery, or burglary; or
perpetrated from a premeditated design unlawfully and maliciously
to effect the death of any human being other than him who is
killed, or perpetrated by any act greatly dangerous to the lives of
others, and evidencing a depraved mind regardless of human life,
although without any preconceived purpose to deprive any particular
person of life, is murder in the first degree, and every other
homicide committed under such circumstances as would have
constituted murder at common law is murder in the second
degree."
"§ 4857. When the jury find the defendant guilty under an
indictment for murder, they must ascertain by their verdict whether
it is murder in the first or second degree; but if the defendant on
arraignment confesses his guilt, the court must proceed to
determine the degree of the crime, by the verdict of a jury, upon
an examination of the testimony, and pass sentence
accordingly."
"§ 4858. Any person who is guilty of murder in the first degree
must, on conviction, suffer death or imprisonment in the
penitentiary for life at the discretion of the jury, and any person
who is guilty of murder in the second degree must, on conviction,
be imprisoned in the
Page 178 U. S. 464
penitentiary for not less than ten years at the discretion of
the jury."
Ala.Code 1896, vol. 2, Criminal.
Taking these statutory provisions together, the question arises
whether the court below had authority, in view of the verdict of
the jury -- "guilty as charged in the indictment" -- to sentence
the accused to imprisonment in the penitentiary for life. The
contention of the accused is that it was for the jury to indicate
by their verdict the punishment to be imposed by the court, and
that the court was without power to act until the jury indicated
the degree of the crime committed.
It is true that the crime charged against the accused was what
is made by the laws of Alabama murder in the first degree, such
offense being punishable with death or imprisonment in the
penitentiary for life. And in that state it is the duty of the jury
to ascertain by their verdict whether the offense charged was
murder in the first or second degree. As, therefore, under the laws
of Alabama, it was in the discretion of the jury, and not for the
court, to say whether murder in the first degree should be punished
by death or by imprisonment for life, and as the verdict of the
jury did not indicate the mode of punishment, there would have been
some difficulty in giving effect to that clause of section 5509 of
the Revised Statutes of the United States, subjecting the accused
to such punishment as is attached by the laws of the state in which
the offense is committed, but for recent legislation by
Congress.
The legislation to which we refer is found in sections 1, 2, and
3 of the Act of January 15, 1897, c. 29, which provides:
"§ 1. That in all cases where the accused is found guilty of the
crime of murder or of rape under section 5339 or section 5345,
Revised Statutes, the jury may qualify their verdict by adding
thereto 'without capital punishment,' and whenever the jury shall
return a verdict qualified as aforesaid, the person convicted shall
be sentenced to imprisonment at hard labor for life."
"§ 2. That except offenses mentioned in sections 5332, 1342,
1624, 5339, and 5345, Revised Statutes, when a person is convicted
of any offense to which the punishment of death is now specifically
affixed by the laws of the United States, he shall be sentenced to
imprisonment at hard labor for life, and when any person is
Page 178 U. S. 465
convicted of an offense to which the punishment of death, or a
lesser punishment, in the discretion of the court, is affixed, the
maximum punishment shall be imprisonment at hard labor for
life."
"§ 3. That the punishment of death prescribed for any offense
specified by the statutes of the United States, except in sections
5332, 1342, 1624, 5339, and 5345, Revised Statutes, is hereby
abolished, and all laws and parts of laws inconsistent with this
act are hereby repealed."
29 Stat. 487.
It will be observed that, by section 3 of this act (which is the
latest statute on the subject), the death penalty is abolished in
all cases of offenses against the United States except those
referred to in certain sections, which do not embrace the present
case. It was not, therefore, in the power of the court below to
have sentenced the plaintiffs in error to suffer death for the
crime of murder committed in the prosecution of the conspiracy
which is made by section 5508 an offense against the United States.
But we are to determine the scope of section 5509 in connection
with the act of 1897. Under that act, the punishment of death could
not be inflicted except in the cases specified. So that section
5509 is to be enforced as if it declared that the offense therein
prescribed should be punished in such mode as was consistent with
the laws of Alabama, provided -- such is the effect of the Act of
Congress of January 15, 1897 -- the accused should not for any
offense covered by that section be subjected to the penalty of
death. The provision in the Code of Alabama giving the jury
discretion to affix the punishment of death or imprisonment for
life in cases of murder in the first degree can have no application
here, because the act of 1897 forbade the former mode of punishment
in such a case as the present one. When, therefore, the jury found
the defendants guilty as charged in the indictment, they found them
guilty of what, under the laws of Alabama, was murder in the first
degree, and they were sentenced by the circuit court of the United
States to suffer imprisonment for life, which those laws authorized
in cases of that character. This was a substantial compliance with
the provisions of sections 5508 and 5509 of the Revised
Statutes.
It results that the circuit court imposed the only
punishment
Page 178 U. S. 466
authorized by the laws of the United States for the crime of
which the defendants were found guilty.
To avoid misapprehension, it should be said in this connection
that the circuit court had no jurisdiction of this case simply as
one of murder committed within the limits of the state, but only as
one of conspiracy, under the act of Congress, accompanied by
murder.
The assistant attorney general suggests as worthy of
consideration whether, under this interpretation of the statutes,
the present case can be brought here directly from the circuit
court. This suggestion is based upon the provision in the Act of
January 20, 1897, c. 68, which withdraws from the consideration of
this Court, upon appeal or writ of error direct from the circuit
court, cases of conviction of infamous crimes not capital, and
gives jurisdiction in such cases, upon appeal or writ of error,
only to the proper circuit court of appeals, and it is assumed that
no criminal case can, upon any ground, be brought here directly
from a circuit court of the United States unless it be a case of
conviction of a capital crime. 29 Stat. 492. But such is not the
law. Among other cases, this Court, under the Act of March 3, 1891,
26 Stat. 826, c. 517, establishing circuit courts of appeals, can
take cognizance of a criminal case upon writ of error to review the
judgment of a circuit court when the case really "involves the
construction or application of the Constitution of the United
States." That act does not make a distinction between civil and
criminal causes such as is implied by the above suggestion of the
government. At the present term of this Court, we have taken
cognizance of a criminal case involving a misdemeanor, brought here
directly from a circuit court of the United States.
Rider v.
United States, ante, 178 U. S. 251. And
we had previously in
United States v. Rider, 163 U.
S. 132,
163 U. S. 138,
said:
"By section 6 [of the Circuit Court of Appeals Act], the
judgments or decrees of the circuit courts of appeals were made
final 'in all cases arising under the criminal laws,' and in
certain other classes of cases, unless questions were certified to
this Court or the whole case ordered up by writ of certiorari as
therein provided.
American Construction Co. v. Jacksonville
Railway Co.,
Page 178 U. S. 467
148 U.
S. 372,
148 U. S. 380. Thus,
appellate jurisdiction was given in all criminal cases by writ of
error either from this Court or from the circuit courts of appeals,
and in all civil cases by appeal or error without regard to the
amount in controversy, except as to appeals or writs of error to or
from the circuit courts of appeals in cases not made final as
specified in section 6."
We further said in that case that the object of the Act of March
3, 1891, c. 517, was to distribute between this Court and the
circuit courts of appeals the entire appellate jurisdiction over
the circuit courts of the United States.
The present case does involve the construction and application
of the Constitution of the United States. It is necessary to
determine whether the admission of certain testimony was not an
infringement of rights secured to the accused by the Sixth
Amendment of the Constitution, declaring that "in all criminal
prosecutions the accused shall enjoy the right . . . to be
confronted with the witnesses against him."
It appears from the bill of exceptions that the government
offered to read to the jury the written statement of William Robert
Taylor, taken in a preliminary examination before United States
Commissioner Wilson of the case of the United States against
Columbus W. Motes, William Robert Taylor, John Littlejohn, and
Dodge Blankenship. For the purpose of "laying a predicate" for
offering that statement in evidence, Captain B. W. Bell was
examined. He testified
"that he was a special officer of the Department of Justice;
that he had been engaged in working up the cases against these
defendants and preparing them for trial; that in August, 1898, he
caused the arrest of said William Robert Taylor and also Columbus
W. Motes, John Littlejohn, and Dodge Blankenship on a charge of
conspiracy and murder of W. A. Thompson, and that, on the 19th day
of August, 1898, during and on the second day of their preliminary
trial, one of the defendants. William Robert Taylor, voluntarily
became a witness for the prosecution, and made a statement
implicating in said murder Columbus W. Motes, John Littlejohn, and
Dodge Blankenship, who were at that time having their preliminary
hearing before said commissioner, and also implicating in said
murder Walter W. Motes and Jasper Robinson, who had been brought to
said preliminary trial as witnesses for the government, and that,
on the second day of said preliminary trial he (Bell) caused the
arrest of the said Walter W. Motes and Jasper
Page 178 U. S. 468
Robinson; that Taylor and the other three defendants on trial
with him were held for trial by the commissioner and committed to
jail without bail to await trial and that, since that time, the
said Taylor has been confined in the Jefferson County, Alabama,
jail under commitment issued by said commissioner; that after the
beginning of the present trial, on the 20th of September, 1898, he
went to the jail, took said Taylor into his custody more than two
days before said Taylor escaped, and that said Taylor had not been
in jail since, but that he had placed him in charge of one Ed. May,
a witness for the government in this case, and instructed May to
let Taylor stay at the hotel at night with his family, and that, in
pursuance of said instruction, Taylor remained at the hotel Tuesday
night and Wednesday night before he absconded on Thursday; that he
saw Taylor in the corridors of the courtroom about 10 o'clock A.M.
Thursday, before he was called as a witness, about 11 o'clock the
same day, and that, when Taylor failed to respond, he made a search
for him in the City of Birmingham, and telegraphed to several
places, and could not find him or learn anything at all as to his
whereabouts."
Bell further testified on the preliminary trial before H. A.
Wilson, United States commissioner:
"Walter W. Motes and Jasper Robinson were arrested during the
trial of the other defendants, Columbus W. Motes, John Littlejohn,
and Dodge Blankenship, said Taylor having implicated them in his
testimony upon said trial. The defendants were all represented upon
said preliminary trial by Mr. Lee Cowart. Mr. Cowart cross-examined
the witness, as shown in the testimony; that all of the defendants,
including the said Walter W. Motes and Jasper Robinson, had an
opportunity to cross-examine the said witness Taylor, and he in
fact was cross-examined by Mr. Cowart, acting either as attorney
for Columbus W. Motes, John Littlejohn, and Dodge Blankenship or
for all defendants; that said cross-examination was reduced to
writing; that he (said Bell) had never made or offered the said
Taylor any inducements, promises, reward, or
Page 178 U. S. 469
hope to induce him to make said statement; that, before said
Taylor was examined as a witness on the said preliminary trial, he
was taken to the office of the United States attorney, who
cautioned him to make no statement unless it was purely voluntary,
and told him emphatically that he could make no promise and offer
him no hope whatever, and that said Taylor stated that he made the
statement voluntarily, and to relieve his own mind."
The United States marshal testified on behalf of United States
that he had instructed his deputies that Taylor had escaped; that
he had offered a reward of $200 for his arrest; that he had made
diligent search in the City of Birmingham for Taylor, and could not
learn anything as to his whereabouts. The chief of police of the
City of Birmingham testified that he had not been officially
notified that Taylor had escaped, but that he had seen something
concerning it in the newspapers, and that he had made no special
effort to arrest him and had no information as to his whereabouts.
The United States then offered as a witness a deputy sheriff, who
testified that the Sheriff of Jefferson County and his deputies had
been on the lookout for Taylor ever since his absence was known;
that they had had photographs taken of him and sent them to various
places, and that the deputies had been on the lookout for him all
over Birmingham and other parts of Jefferson County, and that they
had been unable to find him anywhere.
The government introduced as a witness H. A. Wilson, who
testified as follows:
"I am a United States commissioner, and held the preliminary
trial in the case against these defendants on the 18th and 19th
days of August, 1898. The defendants Columbus W. Motes, William
Robert Taylor, John Littlejohn, and Dodge Blankenship were brought
before me upon a warrant issued on affidavit before United States
Commissioner R. A. Moseley, Jr., by special officer Bell. Jasper
Robinson and Walter W. Motes were present in court while the case
was being heard. William Robert Taylor, one of the defendants,
during the trial proposed to make a statement in the nature of a
confession. I cautioned him, and told him that he could not be made
to testify unless he chose to do so, and asked him if
Page 178 U. S. 470
any inducement or promise had been made or offered to him. He
said there had not; that the statement was voluntary, and he made
it to relieve his mind. Walter W. Motes and Jasper Robinson were
present in court as defendants at the time, as well as the other
defendants who were on trial. I swore William Robert Taylor as a
witness, administering to him the usual oath. He was then examined,
and his testimony was committed to writing. I identify this
statement (referring to the evidence of Taylor here handed to the
witness) as the evidence taken before me. In his testimony, as is
shown and as was the fact, he implicated the defendants Jasper
Robinson and Walter W. Motes, who were arrested then and there. The
defendants Columbus W. Motes, Blankenship, and Littlejohn were
represented by Mr. Cowart, and so were the defendants Walter W.
Motes and Jasper Robinson as soon as they were arrested, and the
trial of the four defendants then on trial, to-wit, Columbus W.
Motes, William Robert Taylor, John Littlejohn, and Dodge
Blankenship, was proceeded with and concluded in the presence of
the defendants Jasper Robinson and Walter W. Motes. Mr. Cowart, as
a matter of fact, did cross-examine the witnesses, as is shown by
this testimony and as I recollect it, and all of the defendants,
including Walter W. Motes and Jasper Robinson, were allowed by me
an opportunity to cross-examine, although no separate trial was
had, and all of these were examined without bail."
The testimony or statement given by Taylor at the preliminary
trial of part of the defendants was then read in evidence by the
government, the accused objecting on the ground that a sufficient
predicate had not been made for its introduction; but the objection
was overruled and an exception taken. The defendants Walter W.
Motes and Jasper Robinson severally objected to the reading of
Taylor's statement against them on the ground that they were not on
preliminary trial at the time the testimony was taken, were not
parties to the case then being tried, and had not legally been
called upon to cross-examine the witness. Those objections were
also overruled, and an exception was taken.
Taylor's statement was lengthy, and showed a
cross-examination,
Page 178 U. S. 471
or an opportunity for the cross-examination, of Taylor by the
present defendants. It was quite sufficient, if accepted by the
jury as true, to establish the guilt of some if not of all of the
accused. It is important to observe that, at the time Taylor's
statement was offered in evidence, there had been no proof whatever
of the conspiracy charged. Conspiracy was the basis of the
prosecution, for in the absence of a conspiracy in the carrying out
of which the alleged murder was committed, the prosecution must
have failed, the crime of murder, apart from the conspiracy to
deprive a citizen of a right or privilege secured by the
Constitution and laws of the United States, being punishable only
by the state.
We are of opinion that the admission in evidence of Taylor's
statement or deposition taken at the examining trial was in
violation of the constitutional right of the defendants to be
confronted with the witnesses against them. It did not appear that
Taylor was absent from the trial by the suggestion, procurement, or
act of the accused. On the contrary, his absence was manifestly due
to the negligence of the officers of the government. Taylor was a
witness for the prosecution. He had been committed to jail without
bail. We have seen that the official agent of the United States, in
violation of law, took him from jail after the trial of this case
commenced, and, strangely enough, placed him in charge not of an
officer, but of another witness for the government, with
instructions to the latter to allow him to stay at a hotel at night
with his family. And on the very day when Taylor was called as a
witness, and within an hour of being called, he was in the corridor
of the courthouse. When called to testify, he did not appear.
In
Reynolds v. United States, 98 U. S.
145,
98 U. S.
158-159, which was an indictment for bigamy committed in
Utah -- the prosecution being under section 5352 of the Revised
Statutes of the United States -- the trial court admitted proof of
what a witness had stated on a former trial of the accused for the
same offense, but under a different indictment. This Court
said:
"The Constitution gives the accused the right to a trial at
which he should be confronted with the witnesses against him; but
if a witness is absent by his own wrongful procurement, he
cannot
Page 178 U. S. 472
complain if competent evidence is admitted to supply the place
of that which he has kept away. The Constitution does not guarantee
an accused person against the legitimate consequences of his own
wrongful acts. It grants him the privilege of being confronted with
the witnesses against him; but if he voluntarily keeps the
witnesses away, he cannot insist on his privilege. If, therefore,
when absent by his procurement, evidence is supplied in some lawful
way, he is in no condition to assert that his constitutional rights
have been violated."
In that case, reference was made to several authorities,
American and English, and the Court further said:
"The rule has its foundation in the maxim that no one shall be
permitted to take advantage of his own wrong, and consequently, if
there has not been in legal contemplation a wrong committed, the
way has not been opened for the introduction of the testimony."
In his Treatise on Constitutional Limitations, Cooley, after
observing that the testimony for the people in criminal cases can
only, as a general rule, be given by witnesses in court at the
trial, says:
"If the witness was sworn before the examining magistrate, or
before a coroner, and the accused had an opportunity then to
cross-examine him, or if there were a former trial on which he was
sworn, it seems allowable to make use of his deposition, or of the
minutes of his examination, if the witness has since deceased, or
is insane, or sick and unable to testify, or has been summoned but
appears to have been kept away by the opposite party."
Cooley, Const.Lim. (2d ed.) *318.
In
Regina v. Scaife, 2 Den.Cr.C. 281, 285-286,
S.C. 17 Q.B. 228, 5 Cox, C.C. 243, which was an indictment
against three persons for a felony, it appeared that a witness had
been kept out of the way by the procurement of one of the accused,
and the question was whether the prosecution could use the
deposition of the absent witness taken before magistrates in the
mode directed by 11 & 12 Vict. c. 42, § 17. It was held by all
the judges that the deposition was not admissible against a
defendant who had not caused the absence of the witness. Lord
Campbell, C.J., said:
"I am of opinion that the rule for a new trial must be made
absolute. Evidence having been given that the defendant Smith had
resorted to a contrivance to keep the
Page 178 U. S. 473
witness out of the way, the deposition was admissible against
him; but it was not admissible against the other defendants, there
being no evidence to connect them with the contrivance. The learned
judge, Cresswell, J., in summing up to the jury, seems to have made
no distinction as to the duty of the jury to consider the
deposition of the absent witness as evidence against the defendant
Smith alone, and not as against the others. The question, then, is
whether such a deposition is admissible against a prisoner without
proof that the deponent has been kept away by his contrivance or
without proof of the death of the witness. No case has yet gone so
far, and I should be afraid to lay down a rule which would deprive
a prisoner of the advantage of having a witness for the prosecution
against him examined and cross-examined before the jury upon every
matter that may be material to his defense. I therefore think that
the deposition was improperly admitted against Scaife and Rooke,
and that there should be a new trial."
Patterson, J. --
"The deposition of the absent witness, Sarah Ann Garnett, was
admissible as against the defendant Smith, by whose contrivance she
was kept out of the way, but it ought to have been applied to the
case against him only, and not to the case against the other
prisoners. No such distinction appears to have been made at the
trial, but the evidence was allowed to go to the jury generally
against all the prisoners, it being assumed, without any evidence
whatever to support the assumption, that they were all connected
with the contrivance to keep the witness out of the way."
Coleridge, J. --
"Before the enactment of 11 & 12 Vict. c. 42, I always
understood the law was that if a witness were absent either by
reason of the death of the witness or by the procurement of the
prisoner, the deposition was receivable in evidence against him.
But I believe these were the only two cases where the absence of a
witness let in his depositions. Absences from every other cause
were within the same category, and did not render them admissible.
The seventeenth section of the recent statute took another case --
where a witness was proved to be so ill as to be unable to travel
-- out of one category and put it into another."
In the present case, there was not the slightest ground in
the
Page 178 U. S. 474
evidence to suppose that Taylor had absented himself from the
trial at the instance, by the procurement, or with the assent of
either of the accused. Nor, if that were material, did his
disappearance occur so long prior to his being called as a witness
as to justify the conclusion that he had gone out of the state and
was permanently beyond the jurisdiction of the court. His absence,
as already said, was plainly to be attributed to the negligence of
the prosecution. The case is not within any of the recognized
exceptions to the general rule prescribed in the Constitution.
It is suggested that the action of the circuit court was in
harmony with the decisions of the Supreme Court of Alabama.
Lowe v. State, 86 Ala. 47;
Pruitt v. State, 92
Ala. 41. We have examined the cases in that court to which
attention has been called, and do not think they sustain the ruling
of the court below under the circumstances disclosed by this
record. But the question cannot be made to depend upon the rules of
criminal evidence prevailing in the courts of the state in which
the crime was committed. It must be determined with reference to
the rights of the accused as secured by the Constitution of the
United States. That instrument must control the action of the
courts of the United States in all criminal prosecutions before
them. We are unwilling to hold it to be consistent with the
constitutional requirement that an accused shall be confronted with
the witnesses against him, to permit the deposition or statement of
an absent witness taken at an examining trial to be read at the
final trial, when it does not appear that the witness was absent by
the suggestion, connivance, or procurement of the accused, but does
appear that his absence was due to the negligence of the
prosecution. We need not decide more in the present case.
For the error referred to, the judgment of the circuit court
must be reversed as to all the plaintiffs in error and a new trial
awarded, except as to Columbus W. Motes. The case as to him rests
upon peculiar grounds, because of his testimony on behalf of the
accused at the final trial. He testified:
"My name is Columbus W. Motes. I am about thirty years old. I
know the defendants who are on trial for the murder of W. A.
Page 178 U. S. 475
Thompson. I know Thompson, and know when and where he was
killed. I also know who killed him. He was killed on March 14th
last, near his home, by myself and William Robert Taylor. No other
person had anything whatever to do with it. I went to Taylor's
house on March 13th, 1898, just after he had returned from
Birmingham, where he had been attending the United States court as
defendant. We were both under indictment in the United States court
at Birmingham for illicit distilling. Taylor attended court and I
did not. W. A. Thompson was a witness against both of us, but I did
not know who reported us. Taylor told me on the 13th of March, the
day he got home from the United States court at Birmingham, that he
got our cases continued on March 12th, 1898, until the next term of
the court. We then and there agreed to kill Thompson to keep him
from appearing as a witness against us at the next term of the
court. We agreed to kill him on the next day as he came from
Sylacauga, so the neighbors would think he was killed by Dodge
Blankenship and Ad. Smith, who only a few days before that time had
been arrested and bound over for illicit distilling. We took my
gun, a rifle, and went to the place where we knew Thompson would
pass, and waited until he came along. Taylor shot him three times
with the rifle. I was watching, according to the agreement between
us, to see if any person saw us. The third shot is the one that
killed him. The bullet entered his forehead. After we killed him,
which was about the middle of the evening, we got his money out of
his pockets, eighteen dollars, all in two-dollar bills, and the
next morning we hid it in a tree near Taylor's house. Neither John
Littlejohn, Dodge Blankenship, Walter Motes, or Jasper knew
anything about our plans to kill Thompson, were not present when he
was killed, and had nothing whatever to do with the murder."
In this evidence the jury had conclusive proof of the guilt of
Columbus W. Motes of the crime charged in the indictment. The
admission of the statement of Taylor in evidence was therefore of
no consequence as to him, for in his own testimony enough was
stated to require a verdict of guilty as to him even if the jury
had disregarded Taylor's statements
Page 178 U. S. 476
altogether. We can therefore say upon the record before us that
the evidence furnished by Taylor's statement was not so materially
to the prejudice of Columbus W. Motes as to justify a reversal of
the judgment as to him. It would be trifling with the
administration of the criminal law to award him a new trial because
of a particular error committed by the trial court when in effect
he has stated under oath that he was guilty of the charge preferred
against him.
It is proper to say that there are other questions of a serious
character raised by the assignment of errors. But as those
questions may not arise upon another trial, we do not now consider
them.
The judgment as to Columbus Winchester Motes is affirmed,
but the judgment as to all the other plaintiffs in error is
reversed, with directions to grant a new trial and for further
proceedings consistent with this opinion.