Gandy v. State. attached to said depositions, take them. And affiant further states that he asked Calvert to testify in this case at Oberlin, Kansas, before said Bertram, but that said Calvert refused to do so; that affiant never at any time or place tried or asked the said Calvert, Thomas, or Bentley to not appear as a witness on behalf of the defendant, James L. Gandy, nor has this affiant tried or attempted to do anything improper in this case, or anything unbecoming an attorney or officer of this or any court. Nor has this affiant at any time or place tried to hire any witness to appear or not to appear for or against the state in this case." Mr. Falloon was also examined as a witness, and testified on cross-examination that he went to Oberlin, Kansas, to appear as attorney for the state in taking depositions; that he spoke to at least two of the witnesses of the plaintiff in error, and sought to dissuade them from testifying. He also seems to have made a number of assertions against the plaintiff in error. The importance of the testimony of the witnesses whose depositions were sought will be understood when the charge of perjury relates to an alleged lease made by Thayer to Gandy, at Oberlin, Kansas, and some of the witnesses apparently would have testified that Gandy and Thayer, at the time the alleged lease was said to have been prepared, procured a blank lease for the purpose of having it filled up. This testimony was very material on behalf of the plaintiff in error, as tending to show that Thayer had actually executed a lease to the plaintiff in That some instrument was executed by Thayer to the plaintiff in error at that time is clearly shown, and the alleged perjury is based upon the allegation that the instrument was not a lease. error. Section 37 of the criminal code provides: "That if any person or persons shall, corruptly, or by threats, or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of this state, in the dis Gandy v. State. charge of his duty, or shall corruptly, or by threats or force, obstruct or impede, or endeavor to obstruct or impede, the due administration of justice therein, every person or persons so offending shall be punished by fine not exceeding one hundred dollars, or by imprisonment not exceeding twenty days, or both." It The offense was punishable also at common law. A prosecuting officer has no more right to attempt to dissuade the witnesses of the party accused of crime from testifying than he would have to induce them to leave the state. will not do to say as an excuse that they would have testified to what was untrue. The jury is to determine the credibility of the witnesses, and a proper cross-examination of a witness will almost invariably test the truth of his statements. In any event a prosecuting officer cannot be allowed to resort to unprofessional methods to prevent witnesses from giving testimony. No doubt the attorney in this instance deemed what he did to be his duty under the circumstances, hence his zeal in the case, and perhaps did not view the transaction as dispassionately as but for such zeal he would have done. It will be observed that Mr. Andrews in his affidavit fails specifically to deny that he used the language imputed to him by the witnesses. He swears to conclusions. All that he states may be true, and still the affidavits be undenied. 3. Objection is made that immediately preceding the trial the prosecution asked leave to endorse on the information the names of twenty-three witnesses, residents of Richardson county. But six of these witnesses were called. Afterwards the prosecution asked and obtained leave to endorse the names of two additional witnesses. A continuance was thereupon asked by the plaintiff in error, which was denied, and this is now assigned for error. A prosecuting officer who knows of the existence of additional witnesses whose names he desires to endorse on the information Gandy v. State. should make his application at as early a day as may be convenient, certainly before the day of trial, otherwise if the accused is taken by surprise it may be ground for a new trial. The reason for the rule is very clearly stated by Judge COBB in Parkes v. State, 20 Nebraska, 517, 518, as follows: "It is an innovation which had been often suggested before it was adopted. With its undoubted advantages it has been objected to as placing too much power in the hands of the prosecutor. Probably foreseeing this objection, the framers of the law sought to throw around the rights of the accused, under this method of prosecution, every reasonable protection. Under the system of prosecution by indictment, the grand jury was, in a sense, the accuser of every person brought to trial for a crime. So here, where the services of a grand jury are dispensed with, while the responsibility of the prosecution rests in some sense upon the shoulders of the prosecuting attorney, there is certainly some reason why there should be open to the accused some source of information as to the identity of the persons upon whose oath his conviction and punishment is about to be claimed at the bar of justice." In this case, however, the testimony of the witnesses called does not appear to have been very material, hence it was error without prejudice. 4. While the jury were considering their verdict, the bailiff having them in charge remained in the room with them. This is now assigned for error. The question here presented was before the supreme court of Michigan in People v. Knapp, 42 Mich., 267, S. C., 3 N. W. R., 927. Judge Cooley, in discussing the question, says: "That when the jury retire from the presence of the court, it is in order that they may have opportunity for private and confidential discussion, and the necessity for this is assumed in every case, and the jury sent out as of course, where they do not notify the court that it is not needful. The presence of a single other person in the room is an intru Gandy v. State. sion upon this privacy and confidence, and tends to defeat the purpose for which they are sent out; and if one may be present, why not several? Why may not the officer bring in his friends to listen to what must often be interesting discussions, and then defend his conduct on proof that they did nothing but listen? But the circumstances of particular cases may make it specially mischievous. In their private deliberations the jury are likely to have occasion to comment with freedom upon the conduct and motives of parties and witnesses, and to express views and beliefs that they could not express publicly without making bitter enemies. Now the law provides no process for ascertaining whether the officer is indifferent and without prejudice or favor as between the parties; and as it is admitted he has no business in the room, it may turn out. that he goes there because of his bias, and in order that he may report to a friendly party what may have been said to his prejudice, or that he may protect him against unfavorable comment through the unwillingness of jurors to criticise freely the conduct and motives of one person in the presence of another who is his known friend. Or the officer may be present with a similar purpose to protect a witness, whose testimony was likely to be criticised and condemned by some of the jurors. "Suppose some member of the officer's family had given important evidence in the case. What reason can there be for expecting that this evidence would be freely canvassed and carefully considered in his presence? But the case may touch him still more nearly. In criminal cases especially, officers frequently become important witnesses, and no one can have had much to do with such trials without feeling that unusual care and caution is necessary in the examination and sifting of their evidence, in order to guard against a natural tendency to allow the facts to be colored by their prepossessions, especially in the case of those they have themselves arrested or accused. If, under Gandy v. State. such circumstances, the officer may be present when his own evidence is to receive its final sifting, the accused may well suspect he is tried and judged unfairly. Nor will it do to leave the case for subsequent investigation in order to ascertain whether the suspicion is well founded. The time of the court cannot be taken up with such inquiries; if it could be the result would not always remove the suspicion. The only proper and just course is to insist on a rigorous observance of the proper practice, in order to prevent all occasion for injurious suspicions." See also, Rickard v. State, 74 Ind., 275. McClary v. State, 75 Ind., 261. Cole v. Swan, 4 G. Green, Ia., 32. State v. Cartwright, 20 W. Va., 32. State v. Robinson, 20 W. Va., 743. Maxwell's Criminal Practice, 644. State v. Snyder, 20 Kas., 306. Hare v. State, 4 How. (Miss.), 187. Slaughter v. State, 24 Texas, 410. Hoberg v State, 3 Minn., 181. In State v. Bailey, 32 Kan., 84, it is said in substance that prejudice must be shown. The supreme court of Wisconsin refused to follow People v. Knapp, and like cases, basing its decision upon the presumption that the bailiff was duly sworn. The supreme court of Illinois also hold that it is not of itself reversible error for a bailiff to remain in the jury room with the jury. We approve of the doctrine stated in People v. Knapp, and like cases, and adopt it as the law of this state. The intrusion of a visitor into the consultation room of this court while a case is under consideration by the judges at once suspends all discussion in regard to the case until the visitor leaves. He may be known to be a man of the utmost honor and integrity, who would not communicate any matter heard by him in such room, yet during the presence of such visitor all discussion in regard to the case under consideration ceases. This, too, although the judges are trained to self-reliance and independence of thought. How much more necessity, therefore, of preventing the intrusion of a bailiff in the jury room, where some of the |