clerk as the statute requires, and that the transcript was not filed within the time provided by law. Our statute provides that an appeal in a criminal case is taken by the service of a notice upon the clerk of the 'court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant a similar notice must be served upon the attorney prosecuting. Appeals are matters of statutory regulation. There must be a substantial compliance with the statute in order to confer jurisdiction upon the appellate court. The appellant is charged with the duty of perfecting his appeal in the manner provided by law, and error in this regard affects the jurisdiction of the appellate court: Courtwright v. Berkin, 2 Mont., 404. A An appeal can only be taken from the district court to the supreme court by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. Unless the notice is served there is no appeal. notice directed to the attorney prosecuting, aud served upon him and filed with the clerk, is not the service of notice upon the clerk. The clerk is not presumed to know the contents of papers filed with him, addressed to other persons, and of which he is simply the custodian. The times at which, and the successive order in which, the several steps are to be pursued, to take and perfect an appeal, are distinctly prescribed by statute, and must be observed; otherwise, the appeal must fail: Arm v. Shallenbarger, 42 Cal.,275. It follows, therefore, that the failure of the appellant to serve a notice of appeal upon the clerk of the court where the judgment was rendered is fatal to the appeal, and the appellate court, in the absence of such notice and service, requires no jurisdiction of the case. As to the time when the transcript should be filed, if the appeal has been properly taken by a substantial compliance with the statute, and the lower court has thereby lost jurisdiction of the case, and the appellate court has acquired jurisdiction, as in such case it would, then the matter as to the time when the transcript should be filed, is directory and not mandatory. And the case of the Territory v. Flowers, 2 Mont., 292, is affirmed. The appeal is dismissed. All the judges concur. TERRITORY V. HANNA. August Term, 1884. DUTY OF PROSECUTION TO CALL WITNESS PRESENT AT KILLING MURDER. The prose cution in a trial for murder must call every person who was present and witnessed the alleged homicide, if it is within their power, and a failure so to do is ground for reversal. APPEAL from a judgment of the district court for Meagher county. The opinion states the facts. Isaac D. McCutcheon, for the appellant. J. A. Johnston, Attorney-general, for the respondent. WADE, C. J. This is an appeal from a judgment against the defendant rendered upon a verdict of murder in the first degree. The prosecuting attorney, in making his opening statement of the case to the jury on behalf of the territory, said to the jury, in the presence of the court "that at the time of the homicide nobody was there but the deceased, his wife and children." The prosecutor then produced testimony tending to show previous threats by the defendant to kill the deceased, and the confession of the defendant that he had killed deceased, and rested the case on the part of the territory, having produced no testimony as to what took place at the killing. Thereupon, the defendant moved the court that the prosecution be required to call one, Hannah Nelson, wife of the deceased, as a witness, the prosecutor having stated to the jury in his opening statement that she was present and witnessed the homicide. It also appeared in evidence that the wife of the deceased was present at the dwelling house of the deceased and in an adjoining room to that in which the deceased was killed, immediately after the homicide. The motion of the defendant was overruled and this action of the court is assigned as error. The authorities are clear and conclusive upon the proposition that the prosecution cannot select out part of a transaction and ask a conviction thereon when testimony showing the whole thereof is within its reach. Says Christiancy in Hurd v. People, 25 Mich., 415. "But the prosecution can never, in a criminal case, properly claim a conviction upon evidence which expressly or by implication, shows but part of the res gestae, or whole transaction if it appear that the evidence of the rest of the transaction is obtainable. This would be to deprive the defendant of the benefit of the presumption of innocence and to throw upon him the burden of proving his innocence. It is the res gestae, or whole transaction, the. burden of proving which rests upon the prosecution, so far at least as the evidence is attainable. It is that which constitutes the prosecutor's case, and to which the defendant has the right of cross-examination; it is that which the jury are entitled to have before them, and until this is shown, it is difficult to see how any legitimate inference of guilt, or the degree of the offense can be shown." "The prosecutor in a criminal case is not at liberty like a plaintiff in a civil case to select out a part of an entire transaction which makes against the defendant, and then to put the defendant to the proof of the other part, so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed, especially if it appears to the court that the evidence of the other part is attainable. The only legitimate object of the prosecution is to show the whole transaction as it was, whether its tendency be to establish guilt or innocence.' In Maher v. The People, 10 Mich., 226, the same learned judge says: "And for myself I am inclined to the opinion that all the facts constituting the res gestae, so far as the prosecuting counsel is informed of, and having the means of proving them, should on principle and in fairness to the prisoner be laid before the jury by the prosecution. They naturally constitute the prosecutor's case. And whenever it appear evident to the court, that but part of the facts, or a single fact, has been designedly selected by the prosecution from the series constituting the res gestae, or entire transaction, and that the evidence of the others is within the power of the prosecutor, it would, I think, be the duty of the court to require the prosecutor to show the transaction as a whole." On a trial for mur In Roscoe's Criminal Ev. p. 128, it is said: der, where the widow and daughter of the deceased were present at the time when the fatal blow was supposed to have been given, and the widow was examined on the part of the prosecution, Pattison, judge, directed the daughter to be called also, although her name was not on the indictment, and she had been brought to the assizes by the other side. The learned judge observed: "Every witness who was present at a transaction of this sort ought to be called; and even if they give different accounts, it is fit that the jury should hear the evidence so as to draw their own conclusions as to the real truth of the matter:" R. v. Holden, 8 C. & P., 609; R. v. Storner, 1 C. & P., 650; R. v. Chapmad, 8 C. & P., 559; R. v. Orchard, id., note 47; Eng. Com. Law, 650. The statement of the prosecuting attorney in opening the case to the jury in presence of the court, is an official statement made under the solemnity of his official oath. In this statement the prosecuting attorney declared to the jury that Hannah Nelson, the wife of the deceased, was present at this homicide. The testimony on the part of the prosecution also showed that she was in a room adjoining that in which the homicide took place, immediately thereafter. Having stated officially to the court and jury that she was present at the homicide, and the proof showing that she was present immediately thereafter, and in all probability, at the very act itself, the prosecuting attorney ought to have called this witness, or made some satisfactory explanation to the court why he did not, otherwise a suggestion is raised that there was design and purpose in omitting to call the witness. Especially should she have been called as there was no proof of the circumstances attending the killing, in evidence at the time the motion was made. Says Campbell, judge, in Wellar v. People, 30 Mich., 23: "As explained in Hurd v. People, 25 Mich., 406, and in the English cases here referred to, a public prosecutor is not a plaintiff's attorney, but a sworn minister of justice as much bound to protect the innocent as to pursue the guilty, and he has no right to suppress testimony. The fact that he is compelled to call those witnesses, when he may not always find them disposed to frankness, entitles him, when it appears necessary, to press them with searching questions." Judgment reversed and cause remanded for a new trial. TERRITORY V. ADOLPHSON. August Term, 1884. CRIMINAL LAW-MURDER-EVIDENCE-REASONABLE DOUBT.-The evidence of the only witness who testified to the act of killing or connected the defendant with the homicide, reviewed, and held so contradictory and improbable as not no exclude every reasonable doubt of the defendant's guilt. THE EVIDENCE IN A CRIMINAL CASE MUST CONVINCE TO A MORAL CERTAINTY before a conviction can be had. APPEAL from a judgment of the district court for Gallatin county. The opinion states the facts. J. J. Davis, for the appellant. J. A. Johnston, Attorney General, for the respondent. GALBRAITH, J. The defendant was indicted for and and convicted of the crime of murder in the first degree, for the killing of one Andrew Sjobeirg. The testimony in the case shows that on the night of the fourth of February, 1883, being the night upon which the homicide is alleged to have been committed, the deceased, the defendant and two other persons, Peterson and Johansen, slept in a shanty in Rocky Canon, Gallatin county. The evening previous to the homicide, Johansen and the defendant were quarelling with the deceased. It would appear that the defendant and Johansen were the assailants. Johansen's enmity to the deceased would appear from the testimony, to have arisen on account of a previous trouble which had taken place between the deceased and Johansen's brother, and defendant's cause of quarrel was in relation to a settlement of an indebtedness claimed to be due from deceased to defendant and Peterson. Johansen struck the defendant two or three times with his hand. When the deceased attempted to leave the cabin, the defendant threw him back into the cabin two or three times. During this altercation the defendant remarked that he, the defendant, would make "his pain short before morning." But the witness who testived to this threat did not know at the time to whom it referred; but supposed afterwards that that it referred to the deceased. Johansen also remarked, on the day previous to the homicide, in a conversation relating to the deceased, "if he comes back again to-night I'll fix him." They went to bed about ten o'clock at night, Johansen and the defendant sleeping in the same bed, and the deceased and Peterson sleeping in separate beds. The only witness who connected the defendant with the homicide was Peterson. He testified that, about two or three o'clock at night the deceased got up and went outside, being gone two or three minutes; that, while he was out, the defendant got up and lit the candle. The deceased, when he returned, blew it out, and went to bed. The defendant went back to his own bed, and, after the deceased laid a little while, he asked the defendant to "come and put the blankets on him," and then the defendant went up and took hold of the blankets and shook them around a little, and then I saw he had a knife in his hand, and cut the deceased in the neck. He cut him right on the left side of the neck. He only cut him one time. I was laying in bed, and Johansen was in bed, and after he cut him, the defendant went back to his bed. There was was no light in the house, but the deceased was laying right beside the window, and I heard the blood running. In the morning I saw the blood, and told the defendant to come and look, and he reached over and took the knife that was lying inside the mat, between him and the wall, and said, "Now you see this scrub; that the knife belonged to the deceased, and has laid there and cut himself." The witness Peterson also testiffed that the deceased, a very short time before he died, which was about seven o'clock in the morning, asked for a cup of coffee; that the night upon which the homicide was committed was a moonshiny night, and that at 10 o'clock the moon was about mid-heaven, and was shining brightly, so that he could see plainly in the house, though the door was shut. He also testified that he made no statement to the coroner at the cabin, and was not examined, and did not testify for fear of the defendant. In answer to the question, "Do you know how this man was killed?" he said he thought he was killed, but did not say by whom. He admitted that he told the coroner, the next day after the homicide, that the deceased had committed suicide, and that he so testified before the coroner's jury. He also testified that he did not say before the coroner's jury that he did not know whose knife it was with the blood on it." The bunk upon which the deceased lay when the homicide was committed was about three feet from the window, which contained four small lights of glass. Two knives were found in the bunk where the deceased slept; one was open, and the big blade and the knife was all bloody. The other knife was not bloody, The surgeon testified that he found a wound in the throat of the deceased about three and a half or four inches in length and two and a half or three inches in depth, severing the wind-pipe, the jugular vein and the carotid artery, and that, in his opinion, he died from hemorrhage from the wound in his neck, and that a person who had received such a wound could not possibly live over thirty minutes; also, that it would be impossible for a man, after laying three or four hours with such a wound, to articulate. The evidence showed that, at 2 o'clock, p. m., the next day after the homicide, it was so dark in the cabin, with the door open, that a candle had to be lighted to remove the corpse. A witness testified as follows: ་ Another "We went into the cabin first, and had to light to see." witness testified as follows: "I went into the cabin, and the room was so dark I couldn't see who it was. It might have been a negro, and I wouldn't have known the difference. It was shown by the testimony that the moon would not be visible on the night of the alleged homicide in that locality until nearly 6 o'clock in the morning. The coroner testified that the witness Peterson was asked before the coroner's jury, whose knife it was that had the blade open; and he answered that he did not know; that Peterson said at the |