Territory v. Hanna

• Decision Date: 31 August 1884
• Citation: 5 Mont. 248
• Parties: TERRITORY v. HANNA.
• Court: Montana Supreme Court

5 Mont. 248

TERRITORY

v.HANNA.

Supreme Court of the Territory of Montana.

August Term, 1884.

Appeal from a judgment of the district court for Meagher county.

Isaac D. McCutcheon, for appellant.

J. A. Johnston, Atty. Gen., for respondent.

WADE, C. J.

This is an appeal from a judgment against the defendant, rendered upon a verdict of murder in the first degree. The prosecuting attorney, in making his opening statement of the case to the jury on behalf of the territory, said to the jury, in the presence of the court, “that at the time of the homicide nobody was there but the deceased, his wife, and children.” The prosecutor then produced testimony tending to show previous threats by the defendant to kill the deceased, and the confession of the defendant that he had killed deceased, and rested the case on the part of the territory, having produced no testimony as to what took place at the killing. Thereupon the defendant moved the court that the prosecution be required to call one Hannah Nelson, wife of the deceased, as a witness; the prosecutor having stated to the jury in his opening statement that she was present and witnessed the homicide. It also appeared in evidence that the wife of the deceased was present at the dwelling-house of the deceased, and in an adjoining room to that in which the deceased was killed, immediately after the homicide. The motion of the defendant was overruled, and this action of the court is assigned as error. The authorities are clear and conclusive upon the proposition that the prosecution cannot select out part of a transaction and ask a conviction thereon, when testimony showing the whole thereof is within its reach. Says CHRISTIANCY, J., in Hurd v. People, 25 Mich. 415:

“But the prosecution can never, in a criminal case, properly claim a conviction upon evidence which expressly, or by implication, shows but part of the res gestœ or whole transaction, if it appear that the evidence of the rest of the transaction is obtainable. This would be to deprive the defendant of the benefit of the presumption of innocence, and to throw upon him the burden of proving his innocence. It is the res gestœ, or whole transaction, the burden of proving which rests upon the prosecution; so far, at least, as the evidence is attainable. It is that which constitutes the prosecutor's case, and to which the defendant has the right of cross-examination; it is that which the jury are entitled to have before them, and, until this is shown, it is difficult to see how any legitimate inference of guilt or the degree of the offense, can be shown.” “The prosecutor in a criminal case is not at liberty, like a plaintiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then to put the defendant to the proof of the other part, so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed; especially, if it appears to the court that the evidence of the other part is attainable. The only legitimate object of the prosecution is to show the whole transaction as it was, whether its tendency be to establish guilt or innocence.”

In Maher v. People, 10 Mich. 226, the same learned judge says:

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