Keller v. State
| Decision Date | 03 April 1890 |
| Docket Number | 15,466 |
| Citation | 23 N.E. 1138,123 Ind. 110 |
| Parties | Keller v. The State |
| Court | Indiana Supreme Court |
From the Allen Circuit Court.
Judgment affirmed.
W. P Denny, for appellant.
L. T Michener, Attorney General, and J. H. Gillett, for the State.
The evidence disclosed the fact that Josephine Freeman was a witness to important acts which preceded and were directly connected with the offence of assault and battery of which the appellant was convicted. The appellant moved the court to compel the State to call and examine her as a witness, and showed that her presence as a witness could readily be secured. The trial court denied the motion, and upon this ruling arises the only question which the record presents.
Under the rigorous and harsh rules of the old common law, there was reason for compelling the prosecution to call and examine as witnesses all persons who had knowledge of material facts connected with the crime charged against an accused person. That law denied him counsel and sealed his lips as a witness. Our law not only allows him to employ counsel but employs counsel for him when he is too poor to employ counsel himself. Our law makes him a witness in his own behalf and affords him liberal facilities for obtaining witnesses. The reason which supported the common-law rule compelling the crown to call witnesses utterly fails under our system, and where the reason fails, so, also, does the rule. If the question were an open one we should decline to follow the ancient rule of the English courts, since the reason which was its life does not exist in our State.
The question is not an open one. Our Court has not only held that the prosecution is not bound to call witnesses at the instance of the accused, but it has gone further, for it has held that an accused can only cross-examine the witnesses of the State as to matters brought out on the examination in chief. If the accused desires to elicit new matter he must make the witness his own. In Haymond v Saucer, 84 Ind. 3, it was said: "The failure to produce a witness, who might as well be called by one party as the other, is no reason for indulging a presumption against either party." A similar doctrine was asserted in Coleman v. State, 111 Ind. 563, 13 N.E. 100. But we need not invoke the aid of analogous cases, for we have a decision directly in point. We refer to the case of Winsett v. State, 57 Ind. 26, where it was said, in answer to the appellant's contention that it was the duty of the State's attorney to produce all the witnesses to the transaction, that, "We may remark, however, that the law of this State, in our opinion, imposes no such duty on the State's attorney." ...
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...148 Mo. 370, 50 S. W. 82;State v. Barrett, 33 Or. 194, 54 Pac. 807;Ross v. State, 8 Wyo. 351, 57 Pac. 924;Keller v. State, 123 Ind. 110, 23 N. E. 1138, 18 Am. St. Rep. 318;Reyons v. State, 33 Tex. Cr. R. 143, 25 S. W. 786, 47 Am. St. Rep. 25;State v. Baxter, 82 N. C. 602;Hill v. Com., 88 Va......
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......Walker, 133 Iowa 489; State v. Benner, 64 Me. 267; People v. Caldwell, 107. Mich. 374; State v. Draughn, 140 Mo.App. 263.) It is. not necessary for the prosecution to call and examine all of. the witnesses to the prosecution. (Ross v. State, 8. Wyo. 351; State v. Kilgore, 70 Mo. 546; Keller. v. State, 123 Ind. 110; State v. Eaton, 75 Mo. 586; Coleman v. State, 111 Ind. 563.) The record. fails to disclose wherein the special prosecutors, Norton,. Sheldon and Stone were biased; the record is valid as to the. grounds upon which jurors, Thiess, Gosnell and Graham were. challenged; ......
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Langley v. State
...the state is not required to call as witnesses all persons who saw the commission of the offense has long been the law. Keller v. State (1890), 123 Ind. 110, 23 N.E. 1138. Petitioner also argues that the state's failure to call these witnesses at trial creates a presumption that their testi......
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People v. Andre W.
...575, p. 685) and it was the State that was obligated to call and examine all persons with knowledge of the material facts (Keller v. State, 123 Ind. 110, 23 N.E. 1138), a prosecutor need not put on any witness, even an eyewitness, whose testimony his own investigation convinces him would be......