Henry Billings Brown

“ There is quite as much danger of doing injustice to one party by admitting such testimony as to the other by excluding it. The respective advantages and disadvantages of a relaxation of the rule are so problematical that courts have, with great uniformity, refused to recognize the exception. ”

“ The authorities, except in some of the New England states, are almost unanimous to the effect that, before a witness can be impeached by proof that he has made statements contradicting or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements. ”

“ For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination, nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility. ”

“ We are bound to interpret the constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject,-such as his ancestors had inherited and defended since the days of Magna Charta. ”

“ Justice to the witness himself requires not only that he should be asked whether he had ever made such statements, but his attention should be called to the particular statement proposed to be proven, and he should be asked whether, at such a time and place, he had made that statement to the witness whose testimony is about to be introduced. ”

“ Mattox v. United States
Error is assigned to the action of the court below (1) in assuming jurisdiction of the case; (2) in not remitting the indictment to the circuit court for trial; (3) in admitting to the jury the reporter's notes of the testimony of two witnesses at the former trial, who had since died; (4) in refusing to permit the defendant to introduce the testimony of two witnesses, to impeach the testimony of one of the deceased witnesses, upon the ground that the proper foundation had not been laid. ”

“ The cases in the state courts are by no means numerous, but these courts, so far as they have spoken upon the subject, are unanimous in holding that the fact that the attendance of the witness cannot be procured, or even that the witness himself is dead, does not dispense with the necessity of laying the proper foundation. ”

“ A technical adherence to the letter of a constitutional provision may occasionally be carried further than is necessary to the just protection of the accused, and further than the safety of the public will warrant. ”

“ In this connection the defendant proposed to prove by the witness James that Whitman told him in November, 1892, that he did not see Mattox on the night he did the shooting, because it was too dark; that he could not tell who did the shooting. That on the next day he told him that all that he had testified to on the former trial was false, and that he wanted to leave the country; and that, if he (witness) would go to see his (Mattox's) friends, and get him fifty dollars, he would give him (witness) twenty-five and himself take twenty-five, and leave the country ”

“ Dryden, 1 Mees. & W. 615, in which it was held that the defendant could not give evidence of declarations made by a subscribing witness to a deed, who had since died, tending to show that he had forged or fraudulently altered the deed. ”

“ Scott in the district of Kansas 'exclusive original jurisdiction of all offenses committed within the limits of the territory hereby annexed to said district of Kansas, against any of the laws of the United States.' This act should be read as a qualification of section 1039, or a repeal pro tanto of the requirement that indictments shall be remitted to the circuit court for trial. A district court could not be said to have 'exclusive original jurisdiction' of a case which it was obliged to remit to another court for trial. ”