People v. Oliver

• Decision Date: 01 July 1886
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. RICHARD J. OLIVER, APPELLANT

11 P. 612

4 Utah 460

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. RICHARD J. OLIVER, APPELLANT

Supreme Court of Utah

July 1, 1886

APPEAL from a judgment of the third district court. The opinion states the facts.

Affirmed.

Mr Arthur Brown, for the appellant.

Mr. W H. Dickson, for the respondent.

BOREMAN J. ZANE, C. J., and POWERS, J., concurred.

OPINION

Appeal from a judgment of the third district court and from an order refusing a new trial. The opinion states the facts.

BOREMAN J.:

The appellant was indicted for assault with a deadly weapon, and found guilty of assault, and sentenced to imprisonment in county jail. The only question in the case is whether Mrs Mix should have been called as a witness by the prosecution. Her name was on the back of the indictment as one of the witnesses upon whose testimony the indictment was found. She was not called, and, after all the other evidence for the prosecution had been introduced, and the prosecution had rested, the appellant moved the court to compel the production of Mrs. Mix by the prosecution, and, upon the failure to so produce her, that the prosecution be dismissed. From the showing made, it does not appear that the testimony would have been important. It is true that she witnessed the whole transaction, and could have detailed what conversation occurred between herself and appellant before the arrival of her husband upon the scene. That conversation is said to have been abusive of her, on his part, and, when he was asked why he did abuse her, he said to Mix, "I will show you;" and, seizing a pitchfork, struck Mix. What occurred after Mix's arrival is shown by his testimony, and that of Parker. What occurred before his arrival was not a part of the affray between appellant and Mix. It no doubt led to Mix's coming there, and asking appellant why he abused his wife. Appellant did not deny that he had been abusive. The testimony on the part of the appellant is not given, but in the bill of exceptions it is said to have tended to contradict the testimony for the prosecution. The evidence on the part of the appellant not having been given to us, we conclude that the appellant relies solely upon the point that, no matter what her testimony might have been, her name being on the indictment, it was the duty of the prosecution to have produced her in court. But it appears she was out of the territory, and out of the jurisdiction of the...