Territory of Arizona v. Clanton , 3 Ariz. 1 ( 1889 )

BARNES, J.

This cause was tried upon an indictment charging defendant with the crime of the larceny of a calf. Defendant was found guilty, and sentenced to a term of imprisonment. It is urged that the court erred in issuing the several special venires to fill up the panel of trial jurors without drawing the names, as required by section 2175 et seq. These venires were issued in term, were directed to the sheriff to serve, and the names returnd by him were properly put in the box, and drawn by the clerk. The jury were properly summoned, and the proceedings were regular. Errors have been assigned as to the rulings of the court as to the admission of evidence, and also based upon the instructions of the court; a.nd yet the bill of exceptions and the transcript show that the evidence is not all preserved in the record. It is impossible to pass upon such questions unless all tbe evidence is before us. This may be and we think the better practice is to be effected by an abstract of all the evidence signed by the trial judge. We cannot see that an error was committed as to the admission or rejection of evidence, unless we can see what relation the evidence bears to the whole case. The same is true as to the instructions. All the evidence must be before us.

We have, however, looked into the bill of exceptions, which only purports to preserve a portion of the evidence, and find that error is assigned as to the admission of an affidavit of the prosecuting witness—that he was a poor person, to entitle him to his necessary expenses for attending as a witness upon the court, as is provided by section 2055 of the Criminal Code —offered by defendant. This affidavit was not competent evidence for any purpose. The witness was not swearing to any matter material to the issue before the jury, and he could be contradicted only upon a matter material to the issues. The remark of the judge that the affidavit of the witness could not be considered by the jury as bearing upon his credibility, was the statement of the law, and in no way trespassed upon the province of the jury.

The instructions laid down the law correctly. Proof to a moral certainty is not required in a criminal cause. All reasonable doubt of defendant’s guilt must be removed; no more. See Territory v. Barth, 2 Ariz. 319, 15 Pac. Rep. 673.

.The • assignment of error that the court erred in confining proof of character to the general reputation of the witness Powell, to his general reputation in the neighborhood where he resided, for truth and veracity, is not tenable. The law is well settled that the course ox procedure in criminal and civil trials is governed by the law in force at the time. The new statute having adopted the common-law rule on this subject, we think the ruling of the court was correct.

We see no error in the record, and the cause is affirmed.