Exceptions
from circuit court, Jackson county; ERASTUS PECK, Judge.
MCGRATH
J.
From a
careful examination of this record it is clear that the
defendant has not had a fair and impartial trial. The
information contained two counts. The first sets forth an
assault with intent to kill and murder, and the second an
assault with intent to do great bodily harm. The jury found
defendant guilty under the second count. It is
unnecessary to recite the testimony. The affray occurred upon
a haymow in a barn, whither the parties had repaired to
divide some hay. After the division of the hay some hot words
passed between the parties relative to other deals. Both
lived upon the farm; defendant conducting it, and Maybee
living in a separate house, and evidently working upon
shares. Maybee, the party who claimed to have been assaulted
was the only witness for the prosecution. Heinsisted that
Cahoon was the aggressor. Defendant claimed that he was sick
at the time; that Maybee followed him (defendant) around the
bin, threatening to attack him, whereupon defendant seized a
pitchfork, and told Maybee to keep away from him; that Maybee
thereupon rushed at defendant, and in the altercation Maybee
fell through the hole through which the hay was fed to the
mangers below. Defendant's wife, knowing that the parties
had had trouble, followed them, without the knowledge of
either, and at the time of the affray stood upon the stairs
leading to the mow, where she could both see and hear. She
corroborates her husband in the main, although she gives some
incidents which neither Maybee nor her husband mentioned.
Upon cross-examination of the wife of the defendant the
prosecuting attorney asked the following questions
"Question. Is it not a fact that you were not there at
all? Answer. It is a fact that I was there. Q. Has this been
written out? A. No, sir. Q. Is it not a fact that you and
your husband have talked this thing over and over again in
the house among yourselves? A. Yes, sir; we have talked it
over. Q. Is it not a fact that you and your husband have
concocted this whole story? A. No, sir. Mr. Bark worth: I
object, as immaterial and not proper cross-examination. Q. You have been a witness for your husband in
every lawsuit he has had, have you not? A. No, I think not.
Q. Is it not a fact that your husband has had a great many
lawsuits?
A. Yes, sir; he has had some. Q. And you have been a witness
in every one of them? (Objected to as immaterial. Overruled.
Exception taken.) A. No, sir; I have not."
The
following is an extract from the record, after defendant had
rested his case: "Mr. Parkinson, Prosecuting Attorney
Now, your honor, I desire to put some witnesses on the stand.
These witnesses are not rebuttal witnesses as to any fact in
this case that I have learned at any time. I want to put
these witnesses on to impeach Mr. Cahoon's general
reputation for truth and veracity. I intended to do that if
Mr. Cahoon went on the stand. I did not know that Mr. Cahoon
was to go on the stand, and therefore had them here as a mere
possible contingency. I had no actual knowledge that he was
to go on the stand, however, until he was sworn. Of course, I
was well aware that rebuttal witnesses should be put on the
information, but these witnesses are not rebuttal witnesses
to any fact. These are impeaching witnesses, and as a matter
of necessity they must be neighbors, persons acquainted with
the respondent, and acquainted with his reputation; they
cannot be strangers, they must be men that he knows; and
consequently there can be no cause to say or for claiming
surprise. Mr. Bark-worth: Now, your honor, I object to the
prosecuting attorney's statement of this matter. His
remarks here are improper before this jury, and I desire my
exception to these remarks. The Prosecuting Attorney: I might
consume considerable time in discussing this question, but I
do not think it necessary. I cannot see how it is possible
that witnesses that might be necessary, or that witnesses
must be put on the information and subp naed on a mere
contingency. I am frank to say, your honor, that I never saw
the names of these persons until they were handed me on this
paper, and I do not think it is possible to put these names
on at the time of the filing of the information. It is not always that you can make up a list of persons
of that kind, although in this case it was easy enough. Mr.
Barkworth: I take an exception to that remark. The
Prosecuting Attorney: I did not make that remark because I
was claiming that it was difficult to get these witnesses. I
am not putting my request on that ground, (Mr. Barkworth:
Please note my exceptions;) and then supposed I would have
furnished a list of these men. I would have been compelled to
bring them here. I would have been compelled to have them
here, and sit during the entire trial, and perhaps never use
them, simply because they were on the information. Now, I
insist that there is no rule of law that courts will lay down
that I must guess who the defendant's witnesses may be,
and place names on the information who might, under any
possible contingency, become witnesses. The result would be
that a great many times injustice would be done, and we could
not try our case. I didn't know until the trial began
that we wanted a witness. If that were the rule, the result
would be just as it was with this woman, Mrs. Cahoon, put on
the stand without the least intimation that we wanted to
rebut any testimony that she could give. I would have...
