delivered the opinion of the court. .
William Palmer was indicted and convicted in the court below for the larceny of two rolls of woven wire, the property of William Watts, alleged to be worth $18 and found to be worth $14. Palmer was fined and sentenced to imprisonment in jail, and has sued out this writ of error to reverse the judgment.
Watts owned a farm occupied by a tenant, and in February", 1903, distributed several rolls of wire through a timbеr lot on his farm where he intended to build an inside fence. He left one roll jtist inside the highway fence, another forty rods back, and the others still further away. On April 19, while distributing fence posts in that line, he missed two rolls of wire he had left nearest the highway. He and his tenant searched and could not find them. They testified they then remembered those two rolls were not there when they distributed a prеvious load of posts on April 2. Watts found that Palmer, a tenant bn a farm two miles distant, had a new wire fence, made of like wire and of nearly the same quality as the missing wire. Watts obtained information which aroused his suspicions, and he instituted this prosecution, charging that Palmer’s fence was built of his wire. On May 26, and after Watts began this prosecution, his tenant found two rolls of wire in Watts’ timber lоt, corresponding to the missing rolls, one a few rods from where the roll had been left near the highway, and the other a few rods from where the other missing roll had been left. This tended to the conclusion the wire had never been stolen. But other proof tended to show that the bundle found furthest of the two from the highway had been made on May 21, which indicated that these rolls had recently been placed there by some one who either intended to make restitution or else to create false proof that there had been no larceny. Ho witness testified that Palmer stole Watts’ wire, or that the wire in Palmer’s fence was that which Watts had lost. Palmer denied stealing it, and claimed that the wire of which his fence was built was bought by his wife on April 1, in Bichitiond, a village some seven or eight miles distant, where he had been but once before this accusation. In the view we take of the case it is unnecessary to set out the main details of the proof, which consisted chiefly of apparently incriminating circumstances shown by the state, and explanations and denials by the defense. The proof introduced by the state, if true, placed defendant under a grave suspicion of guilt. If the proof introduced by defendant was true, he ■was not- guilty.
Witnesses who were apparently disinterested testified for defendant that on April i the}7 saw at Palmer’s place the wire of which his fence was afterwards built, and that on April 12 his fence was finished. This was not disputed. Earl Campbell then testified for defendant that оn April 15 he was driving with Sam Orvis along the highway by Watts’ timber lot, and that Sam Orvis called his attention to a roll of fence wire lying inside of Watts’ fence near the highway, and he saw it there; and that he knew it was April 15 because that was the last day he worked for Sam Orvis, and the next day he went to work for another man, and he set down the date in a book at home by his mother’s direction. . His next employеr then testified Campbell went to work for him on April 16. It is evident this testimony by Campbell was important. If it was true, Palmer could not be guilty. If the wire was still in Watts’ lot on April 15, then it did' not enter into Palmer’s fence which was completed' before April 12, with wire which was at his place on April 4. Immediately after Campbell and his second employer had testified, defendant called Sam Orvis. The state’s аttorney said, “We object to this witness, your honor, for the reason that on yesterday when you ordered the witnesses to go into the other room this witness went outside the door and listened to the testimony of the witnesses.” The court sustained the objection and defendant excepted. The motion for a new trial made the point that the court erred in refusing to allow that witnеss to testify for defendant. The motion for a new trial was overruled and defendant excepted to the ruling, and has assigned for error the denial of the motion for a new trial, and also specifically the action of the court in refusing to permit said witness to testify for defendant. The prosecution claims that if a witness who has been excluded from the court room during thе trial in order to prevent his hearing the testimony of the other witnesses, comes into the court room or where he can hear the testimony, it is entirely discretionary with the trial court whether he shall afterwards be permitted to testify. We therefore proceed to the consideration of this important question.
In Bulliner v. The People,
These are all the decisions upon this subject by the Supreme Court of this state whiсh have come to our attention. Three times the Supreme Court has approved the act of the trial court in permitting the witness to testify in such a case, as a proper exercise of discretion, and once it has approved a refusal to permit a single question to be answered by such a witness who had already been fully examined. In the only cаse in which the court discussed the subject at length, its reasoning was against depriving a party of the testimony on that account, and in the Kota case it says such a witness is not disqualified, and cites an authority which seems to hold that the better opinion is the trial judge has no right to reject the testimony of a witness merely because he has disobeyed such an order. We conclude the Supreme Court does not mean to hold that the trial court has an absolute discretion to reject a witness merely because he has violated such a rule, but that what is referred to is the exercise of a reasonable discretion, in view of all the facts and circumstances—a discretion which can be abused and the exercise of which may bе reviewed on appeal or error. In Holder v. United States,
Considerations of natural justice support the rule above stated. A party cannot select his witnesses. He must call those persons who happen to have observed some fact which tends to establish his case. He cannot control their conduct or make them discreet. He is obliged to use them whether wise or foolish. A party to a suit on triаl, especially a defendant charged with felony, as was the case here, may not have time carefully to watch each witness to see that he obeys the orders of the court. Such a defendant must be in the court room during the trial, and is not likely to know what his witnesses are doing outside the court room door while the trial proceeds. To deprive a party of his witness because of misconduct which the party has not caused, procured or permitted, would be to punish the innocent. It would furnish an-unwilling or hostile witness with the means of avoiding the witness stand. The great object of a judicial trial of a question of fact is to ascertain the truth. The rule here contended for would exclude testimony which might be essential and even cоnclusive. To our minds it is not consonant with justice that a party shall thus be deprived of testimony. We therefore hold that it is not a reasonable exercise of discretion for a trial judge to deprive a party of a witness who has heard testimony in violation of an order excluding witnesses from the court room, unless such party or his attorney is in some way responsible for the violation of the order, or has connived at it or knowingly permitted it without objection, and that even in the latter case, a sound judicial discretion should lean to the admission of the testimony in all cases of doubt.
In the case at bar the state did not show that Sam Orvis disobeyed the order. The mere declaration by the state’s attorney did not establish the fact nor cаst the burden upon defendant to prove the allegation untrue. It was for the state to support its objection by showing what had occurred. If the state’s attorney saw the witness listening, he should have brought the matter to the attention of the court and opposite counsel at once, so that it might be stopped before any harm was done, and ought not to have аn advantage because of his neglect or silence. If the state’s attorney did not see it, then he was merely stating hearsay or rumor to the court. The statement of the state’s attorney implies the witness had not listened that day, but only the day before, and therefore apparently bad not heard Campbell testify. It is also to be observed there is not even a suggestion that defendant knew that the witness was listening outside the court room door, or was in any way responsible for it. The trial judge certified at the close of the bill of exceptions that it presented all the rulings of the court at the trial, excepted to by defendant, as they actually occurred, and that it contained all the evidence and proceedings аt the trial. We are therefore compelled to treat this bill of exceptions as setting forth all that occurred at the trial on the subject of the refusal to permit Sam Orvis to testify for defendant.
Ho doubt in many cases it would be essential that a party-seeking a new trial because of the improper exclusion of a witness should show by affidavit ^hat the testimoiw of thе excluded witness would have been material. But in this case the proof which had been admitted showed that Sam Orxds was present on April 15, and saxv and pointed out the roll of wire just inside the fence of the prosecuting witness near where the roll had been left, which it was charged defendant bad already stolen and put into his fence. As we understand the proofs and admissions of counsel, Sam Orvis is related to two of Watts’ tenants, who with Watts, were the principal witnesses for the prosecution. It may well be that under those circumstances defendant could not readily obtain a full disclosure from him by his affidavit. Defendant had a right to assume that Campbell had testified to the truth, and to call Sam Orvis to corroborate him. Defendant also had a right to cаll Sam Orxds in order to obviate any unfavorable comments to or by the jury which might arise from a failure to call him after his presence had been shown at the time and place where Campbell claimed to have seen the roll of wire. "We hold that the proofs at the trial had sufficiently disclosed the importance and materiality of this testimony to defendant so that no further showing thereof was necessary upon the motion for a new trial. The case was close upon the facts. The guilt • of the defendant was not a necessary conclusion from the proofs. TIiq testimony of Sam Orvis added to that of Campbell might have prevented a conviction.
In our judgment, under the showing made, the court was not warranted in refusing to permit the witness to testify. The judgment is therefore reversed and the cause remanded.
Reversed and. remanded.