New Ulm review. (New Ulm, Brown County, Minn.) 1892-1961, 1905-05-10

legislature, as he had a leading part
to do with the revised law code.
THURSDAYS PROCEEDINGS
The state is not obliged to call Asa
p Brooks. and the court did not use its
discretion to call him, so that it de-
wolves on the defense to put MIN upon
the stand. The matter was debated out
yesterday afternoon by the attorneys.
When they got through, the court said
| that he had his mind firmly made up.
| At New Ulm, Judge Weber denied the
motion of the defense that the state be
required to put Brooks on the stand,
and himself called Brooks. The defense
objected to the latter proceeding, in ord
er to gain point in case of an appeal.
Yesterday, Judge Cray denied the mo-
ton and left it to the defense to call
Brooks. The defense would have object
ed to the court calling him, the same as
it did at New Ulm, had the court
proposed to call him.
It makes no difference in Brooks tes-
timony, of course, who calls him. He
will tell his story and be cross examined
by the state. At New Ulm he was
cross examined by both sides.
Mr. Clark cited some authorities to
sustain the motion of the defense, yes
terday afternoon. He said that il re-
solves itself to this point: Can the state
stances when there is an eve evidence
He held that the state should obtain the
Can the state, in this case, ignore the
positive evidence Of All eye witness, anC
stop with the circumstantial evidence
that it now has? He had always consid
cred that it was the duty of the public
prosecutor to protect the innocent a
well as punish the guilty He quoted
from a Michigan decision where it wa
held that the prosecutor should put OF
iall possible evidence unless the Witnesse
are too numerous. 1t is no answer tina
the witness may not be favorable to tn
state, as may be the fact in this case
Mr.. Clark also quoted from suprem
court decisions in other states. The su
preme court of Texas discussed a ques
- ton like the one of Brooks, where tn
= witness was present in court, and tn
= state wanted him called by the defense
= The court enforced the holding that tn
= state must put the witnesses on unles
=, there are a great many, when all nee
!, not be put on.
" Texas, Michigan, Montana, Pennsy
u vania, Wyoming, North Carolina, Ind
ana, New Mexico, California, Illinoi
West Virginia, and Missouri decision
u were granted. Mr.. Clark said that tt
u defense had examined the decisions {
Il all the states in the union, and not OF
| mad been found that would sustain tt
II state in its stand in the present cas-
/ or authorize q conviction on purely ci
/ cumstantial evidence where an eye wi
ness can be secured.
~ Mr.. Brown argued the case in its +
It lation to the Minnesota courts. The d
. Tense did not contend that the state
I compelled to call in eye witnesses
i most cases. or to call all of the ely
Ie witnesses even in a homicide case T
III state is bound to call some of the wi
III nesses, no matter what their testimon
IN according to the Texas rule If t
In state had any positive evidence, the d
IS, Tense would not contend that any e
III witness need be called. The eye W
OF ness in this case seems to bear no pa
ne tiality, and his testimony was not il
n. peached in the first trial Our suprel
ct court has touched the margin of t
ne case only, or there would need be
he argument There is no suggestion
DIS warrant for the court to call the W
90 ness in any court, as was done at N,
nd Ulm, except by a decision in Illino
en- where the circumstances were not
if same In that case the witness, a /
IT. tender, was discredited by the court a
if called by it for both sides to exami
II ralled Tint ri ct uorthu
ze Gen. Childs said That the state y
unwilling to call the witness, Broo
IL because it could not vouch for the tru
he fulness of the witness. It could |
Nv fcall him without great detriment to
he state and travesty upon justice. Il G