Ingersoll

The defendant was informed against for the crime of robbery. He was convicted, and this appeal is from the judgment and from an “order denying defendant’s motion to vacate and set aside order denying defendant’s motion for a new trial.”

On behalf of the defendant it is insisted that the trial court erred to the prejudice of the defendant in submitting to the jury the question as to whether or not a certain person should be subpoenaed to testify as a witness for the defendant. Apparently the trial court did submit such a question to the jury, but we are at a loss to conceive how such procedure prejudiced the defendant. Evidently the court acted in the matter with the acquiescence of counsel for the defendant. However that may be, neither the judge nor jury could have prevented the witness in question from being subpoenaed to testify upon behalf of the defendant, and the judge’s consent was not a necessary prerequisite to the issuance of a local subpoena. If the suggested witness was possessed of knowledge which would have been material to the defendant’s defense it was the privilege and duty of counsel for the defendant to have procured a subpoena for the witness regardless of the…