Again, the entries of third persons are admitted upon the following principles: Where the "entries consists of those which constitute parts of a chain or combination of transactions between the parties, the proof of one raising a presumption that another has taken place. Here the value of the entry, as evidence, lies in this: that it was contemporaneous with the principal fact done, forming a link in the chain of events, and being part of the res gestæ. It is not merely the declaration of the party, but it is a verbal contemporaneous act, belonging, not necessarily, indeed, but ordinarily and naturally, to the principal thing. It is on this ground that this latter class of entries is admitted, and therefore it can make no difference, as to their admissibility, whether the party who made them be living or dead, nor whether he was, or was not, interested in making them; his interest going only to affect the credibility or weight of the evidence when received." The reason would be stronger if there should be no interest at all. Now, are the entries trustworthy? That is the crucial question. We are after the truth in this case. What motive appears from the evidence which would have induced this gentleman, the bookkeeper of this New York concern, to have made untrustworthy entries? None whatever appears, and, indeed, he testifies to his knowledge of each particular transaction with reference to which these entries are made. A very learned discussion of this topic will be found in the recent and valuable work of Wigmore on Evidence (volume 2, par. 1522): "The reasons justifying the admission of this class of statements, untested as they are by cross-examination" and they may be tested here, "have not been as clearly defined by the judges as in other hearsay exceptions; but they seem fairly clear. They fall within the second general type already described; i. e., the situation is one where, even though a desire to state falsely may casually have subsisted, more powerful motives to accuracy overpower and supplant it. In the typical case of entries made systematically and habitually for the recording of a course of business dealings, experience of human nature indicates three distinct, though related, motives which operate to secure, in the long run, a sufficient degree of probable trustworthiness and make the statements fairly trustworthy." The first of these is: "The habit and system of making such a record with regularity calls for accuracy through the interest and purpose of the entrant [that is, the bookkeeper], and the influence of habit may be relied on, by very inertia, to prevent casual inaccuracies, and to counteract the casual temptation to misstatements. This reason has been referred to in the following passage: "Tindal, C. J., in Poole v. Dicas, 1 Bing. N. C. 649: It is easier to state what is true than what is false; the process of invention implies trouble, in such a case unnecessarily incurred.'" Why should this gentleman have exerted in any unnecessary manner his invention to have made inaccurate entries in these books at the time these entries were made? Again: "Since the entries record a regular course of business transactions, an error or misstatement is almost certain to be detected and the result disputed by those dealing with the entrant. Misstatements cannot safely be made, if at all, except by a systematic and comprehensive plan of falsification.” This might be illustrated, if there was any evidence before the court, by the reference of the learned counsel for the defense to certain insurance companies in New York, which observation, however, could have no possible effect upon the determination of this legal question. "As a rule this fact (if no motive of honesty obtained) would deter ali but the most daring and unscrupulous from attempting the task." Mr. Ford does not appear to be a “daring and unscrupulous man." "The ordinary man may be assumed to decline to undertake it. In the long run it operates with fair effect to secure accuracy." Again: "If in addition to this, the entrant makes the record under a duty to an employer or other superior" here he was under duty to Reed & Flagg, "there is the additional risk of censure and disgrace from the superior, in case of inaccuracies-a motive on the whole the most powerful and most palpable of the three." This reason has been more than once mentioned, and a number of authorities are cited. There is, however, perhaps a controlling authority on this subject in the decision of the Supreme Court of the United States, which I hurriedly ascertained during the progress of this argument, in Fennerstein's Champagne Case, 3 Wall. 145, 18 L. Ed. 121. The facts involved are given in the following headnote: "In order to show the actual market value of merchandise at a particular place in a foreign country, letters by third parties abroad to other third parties, offering to sell at such rates, if written in ordinary course of the business of the party writing them, and contemporaneously with the transaction which is the subject of the suit, are admissible as evidence, even though neither the writers nor the recipients of the letters are in any way connected with the subject of the suit, and though there is no proof that the writers of the letters are dead." In the case Mr. Justice Swayne said: "We think the letters in question in this case were properly admitted." I think they stand upon precisely the same footing as the books here. Indeed, the case at bar is much stronger for the reasons already giventhe proven verity of the books, I mean, and their trustworthiness. "In reaching this conclusion," the learned justice continues, "we do not go beyond the verge of the authorities to which we have referred. In some of those cases the person asserted to be necessary, as a witness was dead. But that can make no difference in the result. The rule rests upon the consideration that the entry, other writing, or parol declaration of the author was within his ordinary business. In most cases he must make the entry contemporaneously with the occurrence to which it relates. In all he has full knowledge, no motive to falsehood, and there is the strongest improbability of untruth. Safer sanctions rarely surround the testimony of a witness examined under oath. The rule is as firmly fixed as the more general rule to which it is an exception. Modern legislation has largely and wisely liberalized the law of evidence." This decision was made in 1865, and the process of liberalization of the rules of evidence has steadily proceeded from that date to this. For all these reasons I think the books are clearly admissible. UNITED STATES v. GREENE et al. (District Court, S. D. Georgia, E. D. March 9, 1906.) CRIMINAL LAW-EVIDENCE-TESTIMONY OF DECEASED WITNESS GIVEN IN PRIOR PROCEEDING. A proceeding before a commissioner of a Circuit Court of the United States for the removal of a person charged with a crime against the United States to another federal district for trial, in which the accused is present and witnesses are examined and cross-examined, is a judicial proceeding, and the testimony of a witness who is fully examined and cross-examined in the presence of the accused on the issue of probable cause, and which was taken and transcribed by a stenographer and is duly authenticated, is admissible on the subsequent trial of the accused, where the witness has died in the meantime. [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1230-1232.] On Objection of Defendants to the Admission of Evidence. Marion Erwin, U. S. Atty., Alexander Akerman, Asst. U. S. Atty., and Samuel B. Adams and Thomas F. Barr, Sp. Assts. to U. S. Atty. Peter W. Meldrim and William W. Osborne, for defendants. SPEER, District Judge. The government offers the testimony of four witnesses who are now dead. These witnesses were R. F. Westcott, W. H. Venable, C. H. Van Deventer, and Thomas J. Agnew. They all died during that period in which the accused had absented themselves from the jurisdiction of this court, and while the government was resorting to judicial proceedings in order to secure their return from Canada or other distant jurisdiction to which they had repaired. Had the case been brought to trial at the time when it was originally assigned, all of these witnesses were in life and all might have testified in person. In point of fact, all had testified before John A. Shields, United States commissioner, in the case pending in the Southern District of New York wherein the government sought to secure the return of the prisoners from that judicial district to this district, where the indictments were pending. We are left in no doubt as to that subject. In the first place, the record of the proceedings before Commissioner Shields makes it indisputable that, not only the prisoners on trial were present, but that they were confronted with the witnesses against them, including these witnesses now dead, and had the most unusual opportunity, not only for the cross-examination of these witnesses, but to introduce evidence in reply to their testimony and any other evidence which might tend to show that there was no probable cause of their guilt and that they ought not to be removed to this district for trial. In addition, this has been judicially ascertained by the District Court of the Southern District of New York. This holding was, in effect, affirmed by the Circuit Judge of that district and was completely and in express terms affirmed by the Supreme Court of the United States on appeal from the decision of the Circuit Judge. Greene v. Henkel, 183 U. S. 249, 22 Sup. Ct. 218, 46 L. Ed. 177. For a clear understanding of these facts we have but to look to the statement of the case made by the Supreme Court itself. Adopting the declaration of the District Judge as its own, that court recites: "The commitment by the commissioner and his finding of probable cause have been made after an extremely full hearing of all the evidence offered on both sides. No evidence reasonably pertinent has been rejected.” Not only, as appears from the record now before the court, was the fullest cross-examination had, but objections that irrelevant and incompetent testimony was offered by the government were made and considered by the commissioner, overruled by him, his judgment was not disapproved by the District Judge, and was affirmed by the Supreme Court itself. The District Judge further stated that: "As respects the finding of probable cause, I have carefully considered the very extended briefs and arguments of counsel, and have examined the voluminous evidence with a view to ascertain whether there was competent evidence before the commissioner sufficient in itself to sustain his finding of probable cause." And said the Supreme Court in its opinion (183 U. S. 258, 22 Sup. Ct. 222, 46 L. Ed. 177): "On subsequent hearings before the commissioner, evidence pro and con as to probable cause was given, and also as to the drawing of the grand jury, and that officer decided that 'after full and fair examination touching the charges in the annexed warrant named it appears from the testimony offered that there is probable cause to believe the defendants guilty of the charges therein contained.' And he thereupon for the second time committed the defendants to the marshal's custody to await a warrant of removal to be signed by the District Judge. When the application for the warrant of removal was made to that judge, he held that a proper case was made out and signed the order for removal." In defining the action of the District Judge in affirming the conclusions of the commissioner, the Supreme Court, Mr. Justice Peckham delivering the opinion, remarks: "When the judge refers to the testimony taken before the commissioner, although he does in terms say that he expresses no opinion upon the merits, yet he states that upon the evidence before him it is a proper case to be submitted to a jury for trial. That is, in effect, a finding of probable cause." Nor was there, as insisted by defendants' counsel, any holding of the Supreme Court in this case that, because the indictment from the Southern District of Georgia was produced, the sole question before the commissioner was one of the identity of the prisoners. On the contrary, it is, indeed, interesting to observe that the Supreme Court at that time withheld any declaration as to the conclusiveness of an indictment as evidence of probable cause. It remarked (183 U. S. 260, 22 Sup. Ct. 223, 46 L. Ed. 177): "It is not a condition precedent to taking action under section 1014 of the Revised Statutes [U. S. Comp. St. 1901, p. 716, which provides for the removal from one federal judicial district to another of persons accused of crime] that an indictment for the offense should have been found." It states that: "In this case there was a sworn charge-in other words, a preliminary affidavit-prima facie showing the commission of an offense against the United States, cognizable by the District Court of the United States for the Southern District of Georgia. To substantiate the charge, a certified copy of an indictment found in the Georgia Court was produced, and in addition evidence was given before the commissioner which, as he found, showed probable cause for believing that the defendants were guilty of the offense charged in his warrant." Subsequently, in Benson's Case, 198 U. S. 1, 25 Sup. Ct. 569, 49 L. Ed. 950, the Supreme Court of the United States amply sustained the views of this court, expressed when these prisoners were permitted for months to resist in New York the process of this court. There the Supreme Court declares that it is scarcely seemly for a committing magistrate to examine closely into the validity of an indictment found in a federal court of another district. In conclusion the court analogizes the proceeding to an adjudication which obtains in case of international extradition, and adds: "There must be some competent evidence to show that an offense has been committed over which the court in the other district had jurisdiction and that the defendant is the individual named in the charge, and that there is probable cause for believing him guilty of the offense charged." It follows, then, from this recitation, that the judicial character of the action of the commissioner cannot be questioned. Where there is accusation, arrest, submission of evidence for the prosecution, submission of evidence for the defense, examination, cross-examination, and effective judgment rendered, the proceeding is judicial. A United States commissioner is indeed a judicial officer. In Benson's Case, 198 U. S. 11, 25 Sup. Ct. 569, 49 L. Ed. 950, the court stated that his functions are practically those of an examining magistrate in an ordinary criminal case. He is appointed by the court and is commissioned with certain judicial powers. Section 627 of the Revised Statutes [U. S. Comp. St. 1901, p. 499] provides: "Each Circuit Court may appoint, in different parts of the district for which it is held, so many discreet persons as it may deem necessary who shall be called 'commissioners of the Circuit Courts,' and shall exercise the powers which are or may be expressly conferred by law upon commissioners of Circuit Courts. This power has been expressly conferred upon him by law." We turn to section 1014 of the Revised Statutes and we find: "For any crime or offense against the United States, the offender may * * by any commissioner of a Circuit Court * * * of any state where he may be found ** be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense." The statute provides for the return of copies of the process into the clerk's office of the court, and in cases where the offense is committed in another district makes it obligatory upon the judge of the District Court where such offender on the report of the commissioner is imprisoned seasonably to issue and of the marshal to execute a warrant for his removal to the district where the trial is to be had. The |