State v. Davis , 13 Mont. 384 ( 1893 )

De Witt, J.

The first contention of appellant cannot be sustained. Section 302, Criminal Practice Act, is as follows: “When two or more defendants are jointly indicted for any felony, any one defendant requiring it shall be tried separately; in other cases defendants jointly indicted shall be tried jointly or separately, in the discretion of the court.” The offense tried was a misdemeanor. (Crim. Laws, § 132.) To grant or refuse a separate trial was within the discretion of the court. No abuse of discretion is claimed. The point is overruled.

The second contention of appellant must be sustained. “The right to cross-examine is a substantial right, and, if the court prevents its exercise as to a material matter, it is error; and such error, in a criminal case, will be presumed to be prejudicial.” (Territory v. Rehberg, 6 Mont. 467.) The court wholly refused to allow appellant’s counsel to cross-examine the prosecution’s witnesses. The court evidently considered that it was allowing appellant the right of cross-examination when it permitted counsel for a defendant other than appellant to cross-examine. But the three defendants were being jointly tried for a conspiracy. It may readily have been that the interests of the defendants were adverse to each other. The facts may have been such that the policy of the defense of one would not have been that of another. It may have been to the advantage of one defendant to bring out facts from the witnesses, which facts would have been damaging to another defendant. It may have been that one defendant or more wereinnocent, or one defendant or more guilty. If such was the case, the facts favorable to the innocent may have been condemnatory of the guilty. Under the circumstances above suggested, it is to be expected that the interests of the defendants would be adverse to each other. Each counsel was interested to make the best case for his own client. To be sure, the .court allowed appellant aud his counsel to suggest to counsel for the other defendant matter for cross-examination. But appellant was thus compelled to present his case to the jury filtered through a medium which may have been adverse and unfriendly to him. This was not the free cross-examination to which appellant was entitled. No matter how conscientious Donnelly’s attorney might be, still he was Donnelly’s attorney, and not Davis’, the appellant’s. He had at stake Donnelly’s interests. His duty was to Donnelly, and not to Davis. He was not the proper instrument for the presentation of Davis’ defense.

Ve are of opinion that the court, in practical effect, denied appellant, Davis, the full and independent right of cross-examination of the prosecution’s witnesses to which he was entitled, and for this error the judgment is reversed, and the cause is remanded for a new trial.

Reversed.

Harwood, J., concurs.