[3] Concerning the fifth and last ground, that the verdict was against the evidence, at the trial the defendant admitted the commission of the assault with a knife, his subsequent flight, and his plea of guilty to a similar charge in the district court; but he claimed that what he did was done in defending himself from an unprovoked assault made upon him and begun by the prosecutor. In this condition of the evidence, it was the duty of the jury to ascertain the truth if possible, and there is nothing in the transcript of testimony to indicate that the jury were not warranted in arriving at the conclusion which they did. The motion for a new trial was therefore properly denied by the justice of the superior court, who is not permitted by the statute to pass upon his own errors of law, if any there be.

[4] If the presiding justice at the trial did err in permitting the prosecuting attorney, against the objection of the respondent, to make improper and prejudicial remarks to the jury, it was the duty of the respondent to take exception to the ruling of the court complained of, in order that the same might be brought to the attention of this court in an orderly manner. So far as we are able to ascertain from an inspection of the transcript, no such exception was taken, and the matters contained in the first ground of the motion for a new trial are not now before us. [5] We pass now to the consideration of the exceptions that were taken. The first exception has relation to the following portion of the charge of the justice presiding to the jury: "The state has also brought this little boy in here, John Malone, if that is his name. You have heard his statement here, and you have heard what occurred in Mr. Sullivan's office. I will say, gentlemen, in regard to that matter, it is unfortunate that the defendant's attorney should feel under any obligation to send for one of the witnesses for the state, who has been summoned by the state, and that he knows has been summoned by the state, and summon him to his office, and there tell him what the defendant has said were the facts of the case, and ask him if that is not true, and have the boy say it is true; then tell the boy he must come, or he should come, into court and tell the story in that way. That is an unfortunate circumstance, to say the least. The state's witnesses should be left alone by the defendant. They should not be approached by the defendant with any object of influencing their testimony in any way. You have heard the boy's story here as to just what occurred in Mr. Sullivan's office, and you have heard Mr. Sullivan's story, and you have heard the story of the others, who claim to have been present, and who have given their version of that affair. You will determine what the

[6] The attorney for the defendant, not only had the right, but it was his plain duty towards his client, to fully investigate the case and to interview and examine as many as possible of the eyewitnesses to the assault in question, together with any other persons who might be able to assist him in ascertaining the truth concerning the event in controversy. Witnesses are not parties, and should not be partisans. They do not belong to either side of the controversy. They may be summoned by one or the other or both, but are not retained by either. It would be a most unfortunate condition of affairs if a party to a suit, civil or criminal, should be permitted to monopolize the sources of evidence applicable to the case to use or not as might be deemed most advantageous. Such a proceeding in a criminal case would violate the provisions of the Constitution of this state (article 1, § 10), which provides that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining them in his favor, to have the assistance of counsel in his defense, and shall be at liberty to speak for himself; nor shall he be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land."

The defendant, therefore, has the constitutional right to have compulsory process for obtaining witnesses to testify in his behalf. He has also the right, either personally or by attorney, to ascertain what their testimony will be. But in the interviews with and examination of witnesses, out of court, and before the trial of the case, the examiner, whoever he may be, layman or lawyer, must exercise the utmost care and caution to extract and not to inject information, and by all means to resist the temptation to influence or bias the testimony of the witnesses. If in any case the claim should be made that a party has misconducted himself in this respect, the matter should be left to the determination of the jury, as affecting the question of his guilt or innocence of the crime charged. If it was charged that an attorney had been guilty of such impropriety, it would constitute cause for the disciplinary action of the court, and should not be submitted to the jury, unless it appeared that it was done with the knowledge and consent of his client, in which case the matter should be left to the determination of the jury. The court, however, should refrain from the use of expressions which are likely to give the jury the impression that the court has prejudged the matter. The expressions of the court in this case, above quoted, beginning,

[7] The second exception is taken to the following charge of the trial court: "Now, there was some other evidence here. There has been one or two Italian women who have told what they know about the matter; but, among other things, the defendant himself has been upon the stand, and he says that he did knock this man down, struck him with his fists, and that he did do the cutting, and he says that immediately after the party who claims to have been assaulted was struck by his fist and was cut that he fled, that he went to his house, got his cap, took his bicycle, and left his home, and left the state of Rhode Island, and was gone until about the time of his arrest, when he returned some 20 days or so after the occurrence. I will say to you, gentlemen, that the very fact that the defendant, under those circumstances which he has related here, saw fit to flee from the state, makes a prima facie case which indicates guilt on his part." And later, in the course of his charge to the jury, the judge added the following remarks on the same subject: "And that he at that time, as soon as the affray between him and Aramino was over, immediately left as he has told you here. But, gentlemen, as I have already called to your attention, the very fact that he ran away is a circumstance which indicates guilt, if not explained by him to your satisfaction." There is no question but that evidence of the conduct of the defendant subsequent to the commission of an offense is always admissible; hence evidence of his flight is competent on the question of his guilt. It is a circumstance which the jury are entitled to consider as an indication of the consciousness of guilt on the part of the defendant. It is a proverb that "the wicked flee when no man pursueth, but the righteous are bold as a lion."

The third and fourth exceptions are also sustained, for the reasons given for sustaining the first exception.

[9] The fifth exception relates to a ruling of the court sustaining the state's objection to the following question put by counsel for the defendant to him: "Q. 13. Are you a married man or a single man?" The court properly held it to be immaterial and unimportant, and the exception is without merit, and is therefore overruled.

As certain of the defendant's exceptions have been sustained as aforesaid, the case is remitted to the superior court for a new trial.

(32 R. I. 432)

WELLS et al. v. KNIGHT. (Supreme Court of Rhode Island. June 5, 1911. On Rehearing, June 13, 1911.) 1. PLEADING (§ 74*)—DeclaratION AND WRIT -VARIANCE.

A declaration in trespass, founded on a writ sounding in case, is permitted by Court and Practice Act 1905, § 246.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 146-148; Dec. Dig. § 74.*] 2. ACTION ($ 30*)-FORMS-DISTINCTION AS TO

FORM.

[8] However, it is the province of the jury to determine the weight of this species of evidence. In the case of State v. Beswick, 13 R. I. 211, 43 Am. Rep. 26, this court held that an act of the Legislature making certain recited circumstances prima facie evidence against an accused was unconstitutional and void, in depriving the accused of the protection of the common-law principle that every person is to be presumed innocent until he is proved guilty, as recognized in the Constitution of Rhode Island (art. 1, § 14), and in violating the provision that an accused shall not "be deprived of life, liberty, or property, unless by the judgment of his peers or the law of the land." Id. art. 1, § 10. The court has no more power in the premises than the Legislature, and the instructions given in

to further blasting, started to drive to the west. There was an interval between the blasts, during which the defendant and his men on the ledge again shouted, so as to be heard a considerable distance away, "Fire! Look out!" Mr. Wells having started after the first blast without having been told by Mr. Gardner that it was safe to do so, the latter, seeing him driving to the west before the last blast went off, testifies that he shouted to the deceased to hold up, as there were two more blasts to go off; that the latter paid no attention to Mr. Gardner, but continued to drive on, and had traveled to a point a short distance west of the second pole west of McDonnell's house, covering about 250 or 300 feet from the point where Mr. Gardner stopped him and warned him of the blasts, when the second blast went off, throwing a piece of stone several pounds in weight, which the deceased saw as it came toward him, and which struck him on the right side of the body, causing him to exclaim in pain, attracting the attention of the Italian who had warned him, when the latter had traveled about 300 feet from the point where he had spoken to Mr. Wells; also attracting the notice of the defendant, of Mr. McDonnell, who was in a hen coop some distance north of the location of the horse and buggy, of Mr. Gardner, and of Mr. Proffitt, a colored man who lived on the south side of Scituate avenue. All of these, excepting the Italian and Mr. Proffitt, ran to the relief of the injured man, and he was taken into the defendant's house, where he

died within 20 minutes.

The case was tried in the superior court, before a jury, October 14-27, 1909, and a verdict was rendered for the defendant. The plaintiffs thereupon moved for a new trial upon the following grounds: "First. The verdict is against the law. Second. The verdict is against the evidence and the weight thereof. Third. The verdict is against the law and the evidence, and the weight thereof. Fourth. The damages awarded in said cause were unjust and grossly excessive. Fifth. The plaintiffs have discovered new and material evidence, which they had not discovered at the time of the trial of said cause, and which they could not have discovered at said time by the exercise of reasonable care." The plaintiffs' motion for a new trial was denied, and the case is now before this court on the plaintiffs' bill of exceptions, based on the refusal of the judge below to grant a new trial, and also upon numerous exceptions taken at the trial to the judge's rulings in admitting and excluding testimony, and in charging and refusing to charge the jury as requested.

[1] The first question raised by the plaintiffs in argument is whether the verdict for the defendant was against the evidence and the weight thereof. In discussing this question a large part of the argument on both

the admissibility, pertinency, and relevancy of evidence offered by the plaintiffs to show that the defendant was negligent in the method and manner of preparing and exploding the blasts, in that he used an excessive quantity of dynamite, and that he did not properly cover the rock when the blast was set off, so as to prevent the rock and débris from flying a long distance. The defendant objected to this evidence so offered by the plaintiffs on the ground that no allegations of such negligence appeared in the declaration and the same was therefore inadmissible. In the writ and declaration in the case at bar the action is styled "an action of the case." The amended declaration says that it was the duty of the defendant "to exercise due, proper, and reasonable care in the control, management, and operation" of his premises, and in the blasting or quarrying of rock or stone as aforesaid, and to give to travelers due, proper, and sufficient notice of such blasting, so that they would not be injured. The declaration alleges, as to the wrongful act complained of: "And said plaintiffs aver that said Llewellyn Wells, on, to wit, said 21st day of May, A. D. 1907, at said Cranston, was in the exercise of due care, and was driving in, to wit, a southerly direction, a horse and wagon or vehicle over, across, and upon said Scituate avenue, in said town of Cranston, and while in the exercise of due care, said and while driving or traveling as aforesaid, Llewellyn Wells was struck in the right side, chest, arm, and body with a certain stone or rock, which was thrown or blown by blasting or quarrying as aforesaid, from said ledge or which said blasting or quarrying was done quarry over, across, and upon said highway, by said defendant, his agents and servants," etc. This, then, is the statement of the case declaration states just how the accident hapupon which the plaintiffs must recover. pened. It does not state whether or not it was due to negligence.

The

alleging a direct and forcible trespass to the [2-4] It is plainly a declaration in trespass, person, without any allegation of negligence tion in trespass, founded on a writ, sounding on the part of the defendant. Such a declarain case, is permitted by statute (section 246, Court and Practice Act 1905), as construed in Adams v. Lorraine Mfg. Co., 29 R. I. 333, 71 Atl. 180; and we regard the action in form as an action of trespass, and not as an action of trespass on the case for negligence. It follows, therefore, that as there is no allegation of negligence, and the action is founded on a direct trespass to the person, the evidence offered in regard to the negligence of the defendant in the matter of the use of explosives and of the covering of the blast was, under strict rules, inadmissible. Furthermore, this court has recently approved the rule set forth in Hickey v. McCabe & Bihler, 30 R. I. 346, 348, 75 Atl. 404, 405, 27 L. R. A. (N. S.) 425, that "it is well settled