
    THE PEOPLE OF THE TERRITORY OF UTAH, Respondent, v. RICHARD J. OLIVER, Appellant.
    Criminal Law. — Absence of Witness Indorsed on Indictment.— Where a witness is beyond the reach of process of court though witness’ name, be indorsed on the indictment as a witness for prosecution in a 'criminal action, and evidence of other witnesses seems to have given the material facts, no error is committed by the court in overruling a motion to compel prosecution to produce witness or to dismiss prosecution.
    Appeal from a judgment of the third district court. The opinion states the facts.
    
      Mr. Arthur Brown, for the appellant.
    
      Mr. W. H. Dickson, for the respondent.
    Appeal from a judgment of the third district court and from an order refusing a new trial. The opinion states the facts.
   Boreman, J.:

The appellant was indicted for assault with a deadly weapon, and found guilty of assault, and sentenced to imprisonment in county jail. The only question in the case is whether Mrs. Mix should have been called as a witness by the prosecution. Her name was on the back of the indictment as one of the witnesses upon whose testimony the indictment was found. She was not called, and, after all the other evidence for the prosecution had been introduced, and the prosecution had rested, the appellant moved the court to compel the production of Mrs. Mix by the prosecution, and, upon the failure to So produce her, that the prosecution be dismissed. Erom the showing made, it does not appear that the testimony would have been important. It is true that she witnessed the whole transaction, and c-onld have detailed wbat conversation occurred between lierself and appellant before tbe arrival of lier husband upon the scene. That conversation is said to have been abusive of her, on liis part, and, when lie was aslced why he did abuse her, he said to Mix, “I will show yon;” and, seizing a pitchfork, struck Mix. What occurred after Mix’s arrival is shown by his testimony, and that of Parker. What occurred before his arrival was not a jjart of the affray between appellant and Mix. It no doubt led to Mix’s coming there, and asking appellant why he abused his wife. Appellant did not deny that he had been abusive. The testimony on the part of appellant is not given, but in the bill of exceptions it is said to have tended to contradict the testimony for the prosecution. The evidence on the part of the appellant not having been given to us, we conclude that the appellant relies solely upon the point that, no matter what her testimony might have been, her name being on the indictment, it was the duty of the prosecution to have produced her in court. But it appears she was out of the territory, and out of the jurisdiction of the court, and hence it was notin the power of the prosecution to produce her. This is a sufficient reason why she could not be produced in court. The evidence of the other witnesses seems to have given the material facts of the transaction. We see no error in the action of the court below in overruling the appellant’s motion to compel the production of Mrs. Mix in court, or to dismiss the prosecution. • '

The judgment of the court below is affirmed.

ZANE, C. J., and Powers, J., concurred.  