146 U.S. 140 (1892)
Clyde Mattox was indicted for murder in the first degree for a homicide committed in December 1889 within that part of the Indian Territory lying north of the Canadian River and east of Texas and the 100th meridian, not set apart and occupied by the Cherokees, Creeks, and Seminole Indian tribes.1 By the act of January 6, 1883, this territory had been annexed to and made part of the United States Judicial District of Kansas.
Mattox was first tried and convicted at the September term 1891 of the District Court of Kansas.2 The Supreme Court reversed that judgment on writ of error.3 At a subsequent term a second trial resulted in a disagreement of the jury.4 At the December term 1893 Mattox was tried a third time, found guilty, and sentenced to death, after which he prosecuted the present writ of error.5
On the third trial the government showed that two of its witnesses from the first trial, Thomas Whitman and George Thornton, had since died.6 The government then introduced a transcribed copy of the reporter's stenographic notes of their testimony at the first trial, supported by the reporter's testimony that the transcript was correct.7 Both witnesses had been present, fully examined, and cross-examined at the prior trial.8 These notes constituted the strongest proof against Mattox.9
Mattox offered to prove by two witnesses, James and Violet, that Whitman had made statements after the first trial contradicting his testimony.10 James would testify that in November 1892 Whitman stated he did not see Mattox on the night of the shooting because it was too dark, could not tell who did the shooting, that all his prior testimony was false, and that he wanted fifty dollars to leave the country.11 Violet would testify that in January 1892 Whitman stated his testimony had been given under threats made by one Stiles in the courthouse corridors just before he took the stand.12
The district attorney objected to the impeachment evidence.13 He argued that Whitman had been examined and cross-examined at the former trial.14 The government had lost the opportunity to contradict the new witnesses because Whitman was dead.15 The statements Whitman allegedly made were after the first trial, so no foundation could have been laid by questioning him at that time.16 The trial court sustained the objection and excluded the evidence for failure to lay a proper foundation.17
Whether the District Court of Kansas had jurisdiction over the offense alleged to have been committed in the Indian Territory?18
By the act of January 6, 1883, the territory was expressly annexed to and declared to constitute a part of the United States Judicial District of Kansas, and the act of May 2, 1890, reserved jurisdiction over crimes committed prior to its passage for prosecution in the courts then having jurisdiction.19
Yes. The homicide occurred in December 1889 in the described Indian Territory.20 That territory had been annexed to the Judicial District of Kansas by the 1883 act.21 The 1890 act preserved prior jurisdiction for crimes committed before its passage.22 The District Court of Kansas therefore properly exercised authority over the case as shown by the indictment and the timing of the offense.23
The District Court of Kansas had jurisdiction.24
Whether the District Court erred by retaining jurisdiction instead of remitting the capital indictment to the Circuit Court for trial?25
The act of January 6, 1883, vested in the United States District Courts at Wichita and Fort Scott exclusive original jurisdiction of all offenses committed within the annexed territory, qualifying or repealing pro tanto the requirement of Rev. Stat. § 1039 that capital indictments be remitted to the Circuit Court.26
No. The 1883 act conferred exclusive original jurisdiction on the District Court of Kansas over offenses in the annexed territory.27 Remission to the Circuit Court under Rev. Stat. § 1039 was therefore unnecessary and inconsistent with that exclusive grant.28 The facts establish that the indictment was tried in the District Court without remission, satisfying the statutory scheme created by the later act.29
The District Court did not err in retaining jurisdiction.30
Whether the transcribed stenographic notes of testimony given by two deceased witnesses at a prior trial were admissible against the defendant?31
The constitutional right to be confronted with witnesses against him does not bar admission of a deceased witness's testimony from a prior trial where the defendant had the opportunity for cross-examination, as this exception rests on necessity, public policy, and the common law understanding at the Constitution's adoption, akin to the long-recognized exception for dying declarations.32
Yes. The stenographic notes of Whitman and Thornton were admissible.33 Both witnesses had been fully examined and cross-examined at the first trial.34 Both had since died.35 The exception grounded in necessity therefore applied while preserving the substance of confrontation through the prior opportunity.36 The facts detail the introduction of the transcript as the strongest proof against Mattox.37
The notes were properly admitted.38
Related opinions on this issue
Joined by Justices Gray And White
Justice Shiras agrees that the confrontation right may yield to necessity when witnesses die, allowing the government to use the stenographic notes.39 He contends that the same principle of necessity should permit the defendant to introduce competent evidence of the deceased witness's post-trial contradictory statements.40 No opportunity existed to lay a foundation during the prior examination because the statements were made afterward.41
The death of the witness should not deprive the accused of the right to challenge the credibility of the testimony used against him.42
Whether the trial court erred by excluding evidence of a deceased witness's post-trial contradictory statements on the ground that no foundation had been laid by cross-examining the witness?43
Before a witness may be impeached by prior inconsistent statements, a foundation must be laid by interrogating the witness about the specific statements.44 This requirement continues to apply even after the witness's death because relaxing the rule would invite fabrication of testimony and deny the party supporting the testimony any opportunity for explanation or reexamination.45
No. The trial court correctly excluded the testimony of James and Violet.46 The alleged contradictory statements occurred after the first trial.47 This timing prevented any foundation from being laid by questioning Whitman.48 The witness's subsequent death does not create an exception to the rule.49 The facts confirm the post-trial timing of the statements and the objection sustained by the court.50
The trial court did not err in excluding the impeachment evidence.51
Related opinions on this issue
Joined by Justices Gray And White
Justice Shiras dissents on the ground that the foundation requirement is a rule of orderly procedure rather than competency of evidence.52 When the witness has died after making post-trial contradictory statements, the rule should be relaxed to avoid sacrificing the accused's right to present valid impeachment evidence.53 Otherwise the government retains the benefit of the notes while the defendant is deprived of any means to challenge the deceased witness's credibility.54
The risk of perjury is mitigated by the oath and penalties attending the impeaching witnesses.55