54 P. 807 | Or. | 1898
delivered the opinion.
The defendant was convicted of the crime of manslaughter, for shooting and killing one Williams in a' saloon conducted by himself and one Levison, and brings this appeal to reverse the judgment. The following statement of the facts will suffice to explain the alleged errors : On the morning of the homicide, in response to
And the question was not a matter upon which the opinion of a nonexpert is admissible. As a general rule, a witness must testify to facts, and not conclusions or opinions. It is the duty of the jury, and not the witness, to draw inferences from the evidence, and form opinions from the facts presented. The cases in which the opinions of witnesses are allowed constitute exceptions to this
This last case (an action on an insurance policy) is very much in point. The dead body of the assured was found lying in a brook, with the face downward, and submerged in six inches of water ; and the defense was that he died from disease, and not accident. On the ■trial the court refused to permit the company to ask of the witness who found the body in the water: “If he had been standing, in your judgment would it have been possible for him to have fallen in the water, in the position in which you found him ? ’ ’ This ruling was sus
The district attorney having closed the case for the state without calling any of the persons who were in the saloon at the time of the homicide, on the ground that they were the associates and employees of the defendant, and in his opinion their testimony would be unworthy of belief, although one of them was then in custody in default of an undertaking to appear and testify on behalf of the state at the trial, and another was on bail for that purpose, the defendant’s counsel moved the court to require such persons to be called as witnesses for the state. The court declined to do so, and the defendant excepted. The parties referred to were then called by the defense, and testified, and the ruling of the court in not compelling ■ the state to produce them on the stand is assigned as error. There is a diversity of judicial opinion as to whether, in a criminal case, the prosecuting officer is compelled to call as witnesses all the persons present at the commission of the alleged crime. There are some early English cases which seem to lay down the rule with more or less distinctness to that effect: Reg. v. Holden, 8 Car. & P. 606; Reg. v. Chapman, 8 Car. & P. 558 ; Reg. v. Stroner, 1 Car. & K. 650 ; Rosc. Cr. Ev. *139. And in this country it is the rule, in Michigan and Montana, that the prosecuting officer is bound to show the res gestee, or entire transaction, by calling all the obtainable witnesses present at the time, unless it appears that the testimony of those not called would be merely cumulative : People v. Germaine, 101 Mich. 485 (60 N. W. 44); Territory v. Hanna, 5 Mont. 248 (5 Pac. 250); State v. Metcalf, 17 Mont. 417 (43 Pac. 182).
But this doctrine is denied and repudiated, and we think rightfully, by a great majority of the courts in
In addition to this, the state is bound to make out its case beyond a reasonable doubt; and if the prosecuting officer does not call sufficient witnesses for that purpose, or if any unfavorable inference can be drawn from his failure to call any witness, the defendant is not likely to suffer by the omission. And if he calls only such wit
It is true, the prosecuting officer is supposed to be, and should be, wholly without bias or prejudice. His sole duty is to see that the laws are enforced, and the guilty punished. He is as much bound, as the law officer of the state, to protect the innocent as to punish the guilty ; and if, therefore, at any time he should, unmindful of his duty, endeavor to suppress evidence, the trial court would be justified in requiring the production by him of the evidence sought to be suppressed, although it might be more favorable to the defense than to the state. And a refusal to exercise such discretion would probably be ground for reversal. But no such question is presented here. There is no claim that the district attorney was
There are some other questions in the case, but as they are of minor importance, and may not arise on another trial, we shall pass without considering them at this time. The judgment of the court below is reversed, and the cause remanded for a new trial.
Reversed .