supra, the same learned judge, again speaking for the court, said: “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 geste or whole transaction, if it appear that 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 throw upon him the burden of proving his innocence.” In Territory v. Hanna, 5 Mont. 248, 5 Pac. Rep. 252, it is said: “The authotities 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.” Thompson v. State, 30 Tex. App. 325, 17S. W. Rep. 448, was a homicide case, where the shooting was admitted, and self defense relied upon, by defendant. It was admitted that there were four cye witnesses to the shooting, all of whom had been subpcena:d by the state, and were present in the court room. The state introduced only circumstantial evidence and the testimony of experts, and the court refused to require the prosecutor to introduce any of the eyewitnesses. This was held error, on the broad ground that the evidence introduced was not the best evidence of which the case was susceptible, and revealed the existence of more original sources of information as stated in 1 Greenl. Ev. § 82. The modified rule applied in these cases commends itself so instantaneously to the judicial mind: that it would probably be accepted by any court in the land. But the facts and circumstances of this case leave it clearly outside the influence of this rule. Here not less than seven witnesses had testified directly to facts as they saw them and heard them. There had been no particular facts selected out by design or otherwise. The entire transaction had been sifted in all its details. There is not even a suggestion of concealment in the evidence. Nor is it suggested that Mrs. Hill was in better con- dition to know the facts that any one of several witnesses whom the state called. The most that can be claimed is that Mrs. Hill, testifying upon the same matters, and with the same means of
