mattox argued decided february plaintiff error convicted january district district kansas murder one john mullen alleged committed december part indian territory lying north canadian river east texas meridian set apart occupied cherokee creek seminole indian tribes place district country exclusive jurisdiction within exclusive jurisdiction indictment returned september term district wichita term defendant first tried convicted conviction sued writ error reversed judgment district remanded case new trial sup case continued december term term plaintiff put upon trial convicted whereupon sued writ error chas reddick dudley michener browne plaintiff error asst atty conrad defendant error justice brown stating facts foregoing language delivered opinion error assigned action assuming jurisdiction case remitting indictment circuit trial admitting jury reporter notes testimony two witnesses former trial since died refusing permit defendant introduce testimony two witnesses impeach testimony one deceased witnesses upon ground proper foundation laid proceed consideration assignments order offense alleged indictment committed part indian territory lying north canadian river east texas meridian set apart occupied cherokees creeks seminole indian tribes section act january stat territory expressly declared constitute part judicial district kansas true act may creating territory oklahoma stat jurisdiction territory question vested district courts territory reservation actions commenced courts viz courts held beyond outside limits territory crimes committed said territory cherokee outlet prior passage act shall tried prosecuted proceeded finally disposed courts jurisdiction thereof act passed homicide question committed december question properly cognizable judicial district kansas indeed point disposed decision caha sup also opinion error remitting indictment circuit trial assuming jurisdiction entire case rev requiring indictments capital cases presented district remitted next session circuit district tried application case since subsequent act january stat already called attention vests district courts wichita scott district kansas original jurisdiction offenses committed within limits territory hereby annexed said district kansas laws act read qualification section repeal pro tanto requirement indictments shall remitted circuit trial district said original jurisdiction case obliged remit another trial upon trial shown government two witnesses former trial namely thomas whitman george thornton since died whereupon transcribed copy reporter stenographic notes testimony upon trial supported testimony correct admitted read evidence constituted strongest proof accused witnesses present fully examined former trial claimed however constitutional provision accused shall confronted witnesses infringed permitting testimony witnesses sworn upon former trial read question made may done civil case insisted reasons convenience necessity excuse departure ordinary course procedure civil cases override constitutional provision question idea done seems arisen misinterpretation ruling case sir john fenwick tr et seq proceeding parliament bill attainder upon charge high treason appeared lady fenwick spirited awsy material witness sworn one cook trial treason testimony ruled obviously case deceased witness one opportunity former trial parties case nevertheless cited peake work evidence page authority proposition testimony deceased witness used criminal prosecution rule england however clearly way bull king jolliffe term king radbourne leach cr cas rex smith starkie buckworth case raym practice country know none testimony held inadmissible cases finn rand mendum rand brogy grat witnesses testified former trial dead state testimony held appeals virginia inadmissible though argument indicated result dead case state atkins overt former testimony witness since deceased rejected tennessee case subsequently overruled kendrick state humph testimony deceased witness taken committing magistrate held admissible see also johnston state yerg bostick state humph rule california formerly admission testimony people chue cal people qurise cal admitted special provision code applicable absent deceased witnesses held constitutional people oiler cal pac case state campbell rich law testimony deceased witness taken coroner absence accused course held inadmissible upon hand authority favor admissibility testimony defendant present either examination deceased witness committing magistrate upon former trial case overwhelming question carefully considered constitutional aspect judicial massachusetts com richards pick said provision made exclude evidence deposition given orally presence accused intended affect question competent evidence given face face according settled rules common law subject also treated great length judge drummond macomb mclean fed cas substance deceased witness testimony given preliminary examination held admissible cases time cited opinion decision put upon ground right exercised hardship upon defendant allow testimony deceased witness read following list cases seen doctrine prevails dozen summons state ohio brown cases question elaborately considered state mo state baker id state houser mo learned discussion subject state able mo owens state miss barnett people white cranch fed cas robinson state state wilson state johnson roberts state state cook la ann dunlap state tex app bush state hooker crary sprague wend wood fed cas state valentine ired precise question never arisen held reynolds witness absent procurement connivance defendant condition assert constitutional immunity primary object constitutional provision question prevent depositions ex parte affidavits sometimes admitted civil cases used prisoner lieu personal examination witness accused opportunity testing recollection sifting conscience witness compelling stand face face jury order may look judge demeanor upon stand manner gives testimony whether worthy belief doubtless reason saying accused never lose benefit safeguards even death witness notes testimony permitted read deprived advantage personal presence witness jury law designed protection general rules law kind however beneficent operation valuable accused must occasionally give way considerations public policy necessities case say criminal convicted testimony certain witness go scot free simply death closed mouth witness carrying constitutional protection unwarrantable extent law wisdom declares rights public shall wholly sacrificed order incidental benefit may preserved accused bound interpret constitution light law existed time adopted reaching new guaranties rights citizen securing every individual already possessed british subject ancestors inherited defended since days magna charta many provisions nature bill rights subject exceptions recognized long adoption constitution interfering spirit exceptions obviously intended respected technical adherence letter constitutional provision may occasionally carried necessary protection accused safety public warrant instance nothing directly contrary letter provision question admission dying declarations rarely made presence accused made without opportunity examination witness brought face face jury yet time immemorial treated competent testimony one hardihood day question admissibility admitted conformity general rule regarding admission testimony exception rules simply necessities case prevent manifest failure justice said chief justice case upon first writ error sup sense impending death presumed remove temptation falsehood enforce strict adherence truth obligation oath declarations admitted made person dead circumstances give statements weight made oath equal greater reason admitting testimony statements made oath substance constitutional protection preserved prisoner advantage seeing witness face face subjecting ordeal law says shall circumstances deprived many cases hold testimony admissible also hold substance testimony words witness shall proven wish understood expressing opinion upon point authorities hold copy stenographic report entire former testimony supported oath stenographer correct transcript notes testimony deceased witness produced case competent evidence said error also assigned action refusing permit defendant introduce testimony two impeach testimony whitman one deceased witnesses showing statements made contradicting evidence upon stand upon ground proper foundation laid interrogating whitman made contradictory statements connection defendant proposed prove witness james whitman told november see mattox night shooting dark tell shooting next day told testified former trial false wanted leave country witness go see mattox friends get fifty dollars give witness take five leave country want appear mattox sworn true also sought prove witness violet january whitman said emphatically specifically testimony mattox given threats made corridors courthouse wichita prior called witness stand approached one stiles shook finger face told dared utter one word witness stand favor defendant mattox stiles see sent road declaring threats testimony given objection made district attorney introduction testimony upon ground whitman examined examined upon former trial questions propounded witnesses james violet purpose impeachment government lost opportunity death witness whitman putting upon stand contradicting facts statements whitman defendant proposed prove witnesses james violet made former trial proper foundation laid asking whitman whether made statements authorities except new england almost unanimous effect witness impeached proof made statements contradicting differing testimony given upon stand foundation must laid interrogating witness whether ever made statements justice witness requires asked whether ever made statements attention called particular statement proposed proven asked whether time place made statement witness whose testimony introduced method impeachment approved conrad griffey wherein rule stated upon common sense essential protect character witness memory refreshed necessary inquiries enable explain statements referred show made mistake discrepancy testimony case deposition witness taken cause sought impeached letter witness written deposition addressed plaintiff affidavit annexed date general rule also approved charles morgan sup although particular case held proper foundation laid introduction evidence principle also approved railway artery sup insisted however rule ceases apply witness died since testimony given contradictory statements either made subsequent giving testimony made known counsel time examined contradictory statements admitted party affected testimony practically mercy witness rule requiring foundation laid matter form enforced works manifest hardship upon party seeking impeach witness authorities however recognize distinction true wright littler burrows dying confession subscribing witness deed forged instrument admitted lord chief justice wiles afterwards approved queen bench lord mansfield delivering opinion similar evidence admitted aveson kinnaird east authority cases seriously shaken stobart dryden mees held defendant give evidence declarations made subscribing witness deed since died tending show forged fraudulently altered deed connection said baron parke determine question propriety admitting proposed evidence ground convenience apart consideration expediency abiding general rules say least doubtful whether generally speaking cause greater mischief advantage investigation truth declarations time mouth subscribing witnesses dead admitted evidence result security solemn instruments much impaired rights parties wills deeds liable affected remote periods loose deciarations attesting witnesses parties opportunity contradicting explaining evidence witnesses party impeaching validity instrument true equivalent loss power living witness party supporting none loss power examination case ayers watson sup differs principally one consideration fact civil instead criminal case action ejectment defendant introduced deposition one johnson taken surveyor made survey land question deposition twice taken used upon former trials prior last trial died plaintiff rebuttal offered deposition witness taken suit parties testimony regard matters testified deposition offered defendant varied materially latter depositions deposition held inadmissible justice miller ing courts liberal giving opposing party opportunity present witness matter propose contradict even going far permit recalled subject left stand believed case deliberately held witness testimony taken committed writing used death placed beyond reach power explanation another trial contradictory declarations whether deposition otherwise used impeach testimony least seem admissible present case three trials jury testimony witness johnson introduced relied reference made former deposition attempt call attention principle rule evidence well understood authorities necessary cited cases state courts means numerous courts far spoken upon subject unanimous holding fact attendance witness procured even witness dead dispense necessity laying proper foundation thus stacey graham counsel conceding rule relied upon two circumstances relieve case influence first attendance witness procured time trial second declarations statements offered proved made witness testified direct admission sworn falsely held statements came knowledge counsel afterwards trial duty apply commission move postponement evidence procured mere absence witness said never considered reason allowing unsworn statements proved order affect credibility question elaborately considered runyan price ohio one subscribing witnesses died trial testimony taken probate read evidence contestants offered evidence declarations respecting capacity alleged testator make time one question purported made held though bare majority inadmissible purpose impeaching testimony seems us said allow death witness work exception destroy principle upon rule rests deny protection designed afford relieving one party supposed hardship equally serious one might inflicted upon without therefore opportunity witness explanation party offered opinion supposed declarations lack element credibility possess used legitimately destroy testimony witness case approved subsequent case wroe state ohio statement person alleged murdered manner received wound statement claimed inconsistent dying declarations ruled upon ground neither part res gestae dying declaration held incompetent original evidence impeaching testimony admit extent afford substitute defendant loss deprive deceased state opportunity explanation craft held testimony witness given upon former trial reproduced witness died testimony effect witness subsequent former trial stated evidence given trial false competent rule put upon ground impeaching statements admitted strong temptation fabrication testimony important true evidence might destroyed hubbard briggs testimony deceased witness given former trial case read evidence subsequently defendant offered read deposition witness chancery suit purpose contradicting evidence read impeaching testimony held properly ruled foundation laid fact witness dead held change rule see also griffith state ark unis charlton grat kimball davis wend wend enforcement rule case death witness subsequent examination may work occasional hardship depriving party opportunity proving contradictory statements relaxation rule cases offer temptation perjury fabrication testimony criminal cases especially almost irresistible generally understood death witness opened door opposite party prove made statements conficting testimony history criminal trials leads one believe witnesses forthcoming painful frequency make desired proof fact one party lost power contradicting adversary witness really greater hardship fact adversary lost opportunity recalling witness explaining testimony quite much danger injustice one party admitting testimony excluding respective advantages disadvantages relaxation rule problematical courts great uniformity refused recognize exception error action judgment therefore affirmed justice shiras dissenting concurred justice gray justice white clyde mattox plaintiff error tried convicted murder first degree september term district district kansas prosecuted writ error judgment lower reversed case remanded new trial subsequent term second trial resulted disagreement jury december term plaintiff error put upon third trial found guilty upon judgment condemning death present writ error taken last trial case governor proved two witnesses first trial thomas whitman george thornton died subsequently thereto introduced evidence objection defendant notes testimony taken stenographer prior trial defendant offered show two witnesses whitman deceased witness whose testimony preserved notes stenographer necessary secure conviction former trial two distinct occasions stated testimony former trial given duress untrue essential particulars government objected evidence ground usual foundation laid impeachment witness attention called alleged contradictory statements death witness disabled government denying explaining statements attributed action sustaining objection government refusing admit impeaching testimony subject discussion opinion doubtless general rule trial civil criminal cases testimony introduced discredit witness showing another time place made statements inconsistent made trial must asked whether made statements give witness opportunity either deny made statements attributed explain showing statements though made reconcilable testimony perhaps withdraw modify testimony light refreshed recollection general rule universal one prevail courts high authority wharton correctly says maine massachusetts rule enforced pennsylvania left discretion judge trying case observe whart cr law tucker welsh mass subject discussed judicial massachusetts referring queen case brod declined follow rule laid held credit witness testified orally giving deposition may impeached showing made different statement either given testimony necessary impeached witness first inquired different statement present credit impeached shall take occasion hereafter advert observation made chief justice parker course opinion subject also considered connecticut case hedge clapp declined accept rule queen case preferring course followed massachusetts clearly shown opinion rule substantive rule law evidence merely one practice state says chief justice church believe uniformity usage conducting examination witnesses made contradictory statements since queen case although time contradiction witness might proved without qualification conclude therefore legal profession never considered law subject fixed treated subject rather matter practice examination witnesses subject discretion well see unyielding rule prescribed conformity rule claimed shall apply consistently cases however must conceded rule approved several cases cited majority opinion conrad griffey letter written six years deposition taken letter offered discredit said probable lapse many years letter mind witness deposition sworn rule requiring attention witness called prior contradictory statements salutary one dispensed courts question consideration whether general rule whether subject exceptions particularly whether facts present case justify departure rule examination authorities show think current weight decision preclude dealing question open one case ayers watson sup referred majority opinion differing present one fact civil instead criminal case indeed true civil case unimportant difference another feature case deprives force precedent guidance question considering case action ejectment went several trials deposition one johnson surveyor taken introduced one parties deposition twice taken used upon former trials prior last trial witness died last trial opposite party offered rebuttal deposition witness taken suit parties contained statements materially different contained later depositions held johnson deposition three trials introduced relied reference made former deposition attempt call attention prior deposition used death impeach testimony said principle rule evidence well understood authorities necessary cited apparent case opposing party less three opportunities call attention witness existence prior deposition upon present case contradictory statements sought proved made till prior trials therefore opportunity time defendant call witness attention statements examine upon case ayers watson therefore fairly regarded point decision cited circuit courts english cases cited three littler burrows aveson kinnaird east stobart dryden mees two former held confessions subscribing witness deed forged deed admitted evidence trial death latter confession admitted reasons given excluding testimony seem chiefly based upon impolicy permitting security solemn instruments impaired loose declarations attesting witnesses perhaps partly upon general grounds public policy mentioned lord mansfield walton shelley term said consequence mankind person hang false colors deceive first affixing signature paper afterwards giving testimony invalidate therefore clear neither decision reasons given support furnish answer present inquiry decisions state courts cited seem little bearing exact question discussing stacey graham case witness whose testimony proposed contradict declarations made elsewhere dead merely absent room said mere absence witness never considered reason allowing unsworn statements proved order affect credibility case therefore merely application general rule runyan price ohio held three judges two civil case testimony deceased witness impeached giving evidence declarations alleged made differing contained testimony wroe state ohio case statements made deceased person manner received fatal wound ruled neither res gestae dying declarations craft case majority opinion runyan price cited followed testimony offered contradict deceased witness subsequent declarations examined excluded hubbard briggs unsuccessfully sought impeach witness testified former trial case afterwards died offering deposition taken years chancery suit different parties civil suit stipulation parties evidence witness might read gave former trial decision sustained obvious principles apart question hand griffith state ark case arkansas recognized general rule competent contradict witness evidence declarations made without directing attention subject said ruled impeachment evidence offered trial appear statement deceased witness made reduced writing magistrate attention directed time place antecedent declarations may may though strictly ruling right might safer case involving liberty give accused benefit doubt unis charlton grat merely case illustrating general rule bearing problem kimball davis wend effect living witness whose testimony taken deposition contradicted subsequent declarations respect way party avail declarations sue second commission obviously merely recognition general rule touch present case entire array cases cited seems resolve two cases question directly considered decided runyan price ohio civil case ruled divided craft hedge clapp heretofore cited said rule laid queen case one well adhere yet subject exceptions sound discretion may time time suggest chief justice parker tucker welsh mass said suggested admitting evidence proper impeach witness upon stand allowed impeach deposition witness absent opportunity deny explain witness testified upon stand hears true evidence tends impeach may called back purpose absent evidence goes affect credibility deposition material give time principal witness appear depositions taken relative facts proved impeach may sometimes ient justice requires delay given suppose witness testified afterwards acknowledge falsity statements die party interested testimony might upon another trial prove said upon stand oath shall party permitted prove said falsehood fletcher fletcher la ann rule queen case approved testimony impeach witness showing contradictory statements ruled necessary foundation laid fletcher henley la ann evidence admitted shown seasonable fruitless effort made examine witness alleged contradictory statements taking commission purpose return commissioner showed found brief review authorities suffices show question shape presented never heretofore considered decided uniform current decisions courts constrain us follow finding decisive rule authorities coming regard question one reason obvious dealing doctrine law prescribed statute long course judicial decisions mere rule procedure undoubtedly credit witnesses testifying oath assailed evidence statements made elsewhere without affording practicable justice party calling opportunity deny explain admit must overlooked primary object trial vindicate truth consistency witnesses determine guilt innocence accused evidence tending show testimony essential witness relied made contradictory statements elsewhere times valid admissible authorities concede right put evidence destroyed incidental fact witness reason death produced deny admit made statements necessity call relaxation rule case books disclose many instances rules evidence much fundamental one treating dispensed overruling necessity thus rule excluded parties witnesses departed deemed essential purposes justice clark spence watts said party competent testify cause like every general rule exceptions necessity etither physical moral dispenses ordinary rules evidence cases common carriers owner admitted ex necessitate testify contents value boxes opened rifled see cases cited greenl ev author sums cases stating law force evidence person interest rules common law respecting evidence general presumed laid aside rather subordinate silenced transcendent universal rule cases evidence good nature subject presumes none better obtainable murphy pet owner property alleged stolen board american vessel high seas held competent witness prove ownership property stolen saying general rule undoubtedly criminal cases well civil cases person interested event suit prosecution competent witness many exceptions old rule thus stated lord chief baron gilbert clear exception statute receive execution unless party interested witness must allowed statute must rendered ineffectual impossibility proof need go beyond case us striking illustration fact rules evidence even founded constitutional provision may modified relaxed necessities case require government proceed third trial without producing testimony thomas whitman george thornton witnesses died since prior trials government driven rely upon stenographer notes testimony objected behalf accused constitution provides criminal prosecutions accused shall enjoy right confronted witnesses contended word simply secure accused privilege examining witnesses behalf affirmance rule common law trials jury witness must present jury accused may confronted put fact face opinion majority disposes objection saying primary object constitutional provision question prevent depositions ex parte affidavits sometimes admitted civil cases used prisoner lieu personal examination witness accused opportunity testing recollection sifting conscience witness compelling stand face face jury order may look judge demeanor upon stand manner gives testimony whether worthy beleif doubtless reason saying accused never lose benefit safeguards even death witness notes testimony permitted read deprived advantage personal presence witness jury law designed protection general rules law kind however beneficent operation valuable accused must occasionally give way considerations public policy necessities case right accused confront witnesses although formally secured express terms constitution importance value recognized may dispensed death witness seem justly follow neither death deprive accused right put evidence valid competent nature show witness unworthy belief become convinced trial mistaken argued permit evidence statements made witness contradictory testimony strong temptation fabrication evidence important true evidence might destroyed argument overlooks fact witnesses introduced testify contradictory statements witnesses liable indictment perjury testify sanction oath liability punishment bearing false witness hand witness notes whose testimony relied sufficient secure conviction accused longer within reach human justice conclude rule witness must contradictory statements given evidence impeach credit rule convenient orderly practice rule competency evidence press rule far exclude proof contradictory statements made witness since former trial case witness dead party offering proof never statements sacrifice substance proof orderliness procedure rights living party consideration deceased witness according rulings death witness deprived accused opportunity conflicting statements loss opportunity deprived accused right impeach witness independent proof statements thus death witness deprive government benefit testimony accused deprive latter right prove testimony witness untrustworthy ruling rejected evidence positive character testified witnesses produced examined jury upon mere conjecture deceased witness might alive reiterate former testimony seem wiser policy give accused benefit evidence competent character reject sake supposition doubtful judgment reversed cause remanded directions set aside verdict award new trial