knowledge, might have contradicted the testimony of the other witnesses. Under such circumstances, no duty rested upon the state to call her. The law is ever more zealous to protect innocence than to punish crime. Persons accused of crime have the full and free use of the process of the court to compel the attendance of witnesses. They are always represented by counsel, chosen cither by themselves or by the court. They can be convicted only upon evidence that the jury regards as practically conclusive, and so juries are always instructed. We regard it as clearly unsafe to go further, and require the prosecution, after it has fairly and in good faith given the entire res geste to the jury, to call every witness to the transaction, howsoever bitterly hostile ‘such witness may be to the prosecution, or howsoever powerful his motives may be to screen the defendant. To place such a witness in the hands of astute counsel for cross-examination would be to confound justice, and establish a rule that innocence never requires for its protection. This assignment of error cannot be sustained on this ground. State v. Middicham, 62 Iowa, 150, 17 N. W. Rep. 446; State v. Eaton, 75 Mo. 586; State v. John- son, 76 Mo. 121; State v. Martin, 2 Ired. 101; State v. Smallwood, 75 N.C. 106; State v. Cain, 20 W. Va. 679; Com. v. Haskell, 140 Mass. 128, 2 N. E. Rep. 773.
When counsel for the plaintiff in error asked the court to compel the prosecution to produce and swear Mrs. Hill, the prosecuting attorney, in opposing such request, and in the presence and hearing of the jury, used the following language: “Information comes to me that the witness whose presence is requested as a witness for the state has been known to be conniving and going with the defendant in endeavoring to secure testimony in any way that it can be secured as against the ‘state, in favor of the defense, and for that reason the state declines to produce her or to swear her here as a witness for the state.” Counsel for plaintiff in error immediately moved to strike out this statement as an improper statement to be made before the jury. There was no ruling on the
N. D. R.—20.
