Page:North Dakota Reports (vol. 3).pdf/342

 that besides the witness Hill not less than six other persons had been sworn for the prosecution, all of whom based their testimony upon the sense of sight or hearing, or both, and the testimony thus produced covered all parts of the transaction. Under this assignment of error it is urged that it was the duty of the prosecutor to produce and swear all persons who were shown by the evidence to have been present at the time of the affray, and whose testimony could throw any light upon the subject that would in any degree aid the jury in ascertaining the facts. The rule thus invoked was early established in England. In Reg. v. Holden, 8 Car. & P. 606, Patteson, J., said: “Every witness who was present at a transaction of this sort ought to be called; and, even if they gave different accounts, it is fit that the jury should hear their evidence, so as to draw their own conclusions as to the truth of the matter.” This was a homicide case. "And see Reg. v. Chap- man, 1d. 559; Reg. v. Bull, 9 Car. & P. 22; Rosc. Crim. Ev. 128. While this rule was established in that country at a time when the right of persons accused of crime to be represented by counsel was denied, or greatly abridged, and hence the rule found greater support in justice and necessity than at present, yet we are not aware that it has ever been abrogated. The state of Michigan seems to have adopted this rule in its entirety. It is true that the cases in that state which first discussed the question (Maher v. People, 10 Mich. 212; Hurd v. People, 25 Mich. 405; Wellar v. People, 30 Mich. 16; and Thomas v. People, 39 Mich. 309) announced the modified rule hereinafter stated, but the latest and strongest utterance of that very able court on the subject is found in People v. Dietz, 86 Mich. 419, 49 N. W. Rep. 296. This was a case of assault with intent to do great bodily harm. There were four persons engaged in the affray,—two on each side. The prosecutor called the two on one side, and the testimony covered the entire transaction. The court refused to require the prosecution to swear the other party to the affray, not on trial, and who was present in court, and also refused to require the prosecution to produce and swear three ladies who witnessed the difficulty