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mony given upon such a former trial by a witness who has since died.4

Statutory presumptions arising from certain facts have been held to be constitutional; but not where they were conclusive and irrebuttable. A statute is valid which makes an extract from official records for the certificate of a public officer prima facie evidence. So much of a statute as declared that the judgment of conviction against the principal felons should be admissible in a criminal prosecution against the receiver of property of the United States, which had been embezzled, stolen or pur

ing the case was again called; and the foregoing facts being made to appear, the court ruled that evidence of what the witness had sworn to at the former trial was admissible. In this we see no error. The accused was himself personally present in court when the showing was made, and had full opportunity to account for the absence of the witness, if he would, or to deny under oath that he had kept her away. Clearly, enough had been proven to cast the burden upon him of showing that he had not been instrumental in concealing or keeping the witness away. Having the means of making the necessary explanation, and having every inducement to do so if he would, the presumption is that he considered it better to rely upon the weakness of the case made against him than to attempt to develop the strength of his own. Upon the testimony as it stood, it is clear to our minds that the judgment. should not be reversed because secondary evidence was admitted." Reynolds v. U. S., 98 U. S. 145, 159, 160, 25 L. ed. 244, 247, 248, per Chief Justice Waite.

4 Mattox v. U. S., 156 U. S. 237, 39 L. ed. 409.

5 Mobile, Jackson & Kansas City R. R. Co. v. Turnipseed, 219 U. S.

35, 43; "That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from the proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.

"If a legislative provision not unreasonable in itself prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him." See also Luria v. U. S., 231 U. S. 925; State v. Wilson, 15 R. I. 180.

6 State v. Beswick, 13 R. I. 211. Contra, State v. Thomas, 47 Conn. 546, 36 Am. Rep. 98.

7 Johnes v. State, 55 Maryland

350.

loined, as evidence of such embezzlement, theft or purloinment, was held to be unconstitutional. A statute was unconstitutional, which compelled the owner of property, in proceedings for its forfeiture, to produce, upon the trial, his books and papers for the inspection of the United States Attorney; and provided that, in case of his refusal, the allegations on the part of the Government should be taken as confessed.10 It was held to be a violation of this amendment upon a prosecution for violating the law in regard to oleomargarine to admit in evidence the monthly returns to an officer of the internal revenue made by a manufacturer of oleomargarine which showed sales to the defendant.11

Depositions are inadmissible; 12 but the defendant may waive by stipulation his right to object to one.13

The presence of the counsel for the defendant at an inspection of the place where he is charged to have committed the offense described in the indictment is a waiver of his right to be present, when not requested by him.14

The jury cannot be permitted after their retirement to make an experiment, such as a test of opium to see if it was suitable for smoking, in the defendant's absence.15

§ 522d. Compelling attendance of witnesses for the Government. Subpoenas for witnesses, issued on behalf of the United States, in a criminal case may be served in any district of the United States, no matter how distant it may be from the place of trial. The language of the statute 2 seems sufficiently broad

8 Act of March 3, 1875, c. 144, 18 St. at L. 479.

9 Kirby v. U. S., 174 U. S. 47, 61, 43 L. ed. 890, 896.

10 Boyd v. U. S., 116 U. S. 616, 29 L. ed. 746.

11 U. S. v. Elder, 232 Fed. 267. 12 People v. Murray, 52 Michigan 288, 290.

18 Diag v. U. S., 223 U. S. 442, 56 L. ed. 500.

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§ 522d. 1 U. S. R. S., § 876.

2 Quoted supra, § 342. It has been held that, in the Southern Dis trict of New York, subpoenas issued by a United States Commissioner on behalf of a defendant cannot be served outside of the county where he holds a hearing; unless a United States judge, upon an affidavit of the prosecutor or District Attorney, or of the defendant or his counsel, stating that the affiant believes that the evidence of the witness is material and his attendance at the trial is necessary, indorses, on the

to give the same right to the defendant in a criminal case. The Revised Statutes further provide: "Witnesses who are required to attend any term of a circuit or district court on the part of the United States, shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney." 3

It has been held that a Federal court should not, upon the application of the District Attorney of the United States, compel the production of a witness confined in the State penitentiary for assault with intent to murder, when the State authorities oppose the application. The Revised Statutes further provide: "Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offense against the United States may, at the hearing of any such charge, require of any witness produced against the prisoner, on pain of imprisonment, a recognizance, with or without sureties, in his discretion, for his appearance to testify in the case. And where the crime or offense is charged to have been committed on the high seas, or elsewhere within the admiralty and maritime jurisdiction of the United States, he may, in his discretion, require a like recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused, whose testimony in his opinion is important, and is in danger of being otherwise lost."5 "Any judge of the United States, on the application of a District Attorney, and on being satisfied by proof that the testimony of any person is competent and will be necessary on the trial of any criminal proceeding in which the United States are parties or are interested, may compel such person to give recognizance, with or without sureties, at his discretion, to appear to testify therein; and, for that purpose, may issue a warrant against such person, under his

subpœna, an order for the attendance of such witness. U. S. v. Beavers, 125 Fed. 778; and, in the Eastern District of Pennsylvania, that such a subpœna cannot be served in another district, although within one hundred miles of the

place where the hearing before him is appointed to be held. U. S. v. Stern, 177 Fed. 479.

3 U. S. R. S., § 877.

4 U. S. v. Barefield, 23 Fed. 136. 5 U. S. R. S., § 879.

hand, with or without seal, directed to the marshal or other officer authorized to execute process in behalf of the United States, to arrest and bring before him such person. If the person so arrested neglects or refuses to give recognizance in the manner required, the judge may issue a warrant of commitment against him, and the officer shall convey him to the prison mentioned therein. And the said person shall remain in confinement until he is removed to the court for the purpose of giving his testimony, or until he gives the recognizance required by said judge." "In the District of Vermont, all recognizances of witnesses, taken by any magistrate in said district, for their appearance to testify in any case cognizable either in the District or Circuit Court thereof, shall be to the Circuit Court next thereafter to be held in the said district."7

§ 522e. Compelling attendance of witnesses for the defendant. The Revised Statutes provide that: "Every person who is indicted of treason or other capital crime, shall be allowed, in his defense, to make any proof that he can produce by lawful witnesses, and shall have the like process of the court to compel his witnesses to appear at his trial, as is usually granted to compel witnesses to appear on behalf of the prosecution." It' has been held that the accused has the right to compulsory process, to compel the attendance of his witnesses, even before an indictment.2 This section of the Revised Statutes does not give the defendant the right to compel the attendance, as witnesses, of ambassadors or consuls who are exempted from subpœnas by treaty.3 "Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose evidence is material to his defense; that he cannot safely go to trial without them; what he expects to prove by each of them; that they are within the district in which the court is held, or within one hundred miles of the place of trial; and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the court in term, or any judge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid.

6 U. S. R. S., § 881.

7 U. S. R. S., § 880.

§ 522e. 1 U. S. R. S., § 1034.

2 Burr's Trial, vol. I, p. 77.

3 Re Dillon, 7 Sawyer, 561.

In such case the costs incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States." The statute makes the order rest in the discretion of the court, and a denial of the application will rarely, if ever, be the cause of a reversal upon writ of error.5 Where the application was not made until the trial was nearly concluded, and it would have taken several days to bring the witnesses before the court; and where the court granted the application as to some, but not as to all, of the witnesses named; 7 it was held that the rulings would not be reviewed. It has been held that the court may limit to four upon each point of the defendant's proof the number of witnesses that shall be subpœnaed for him at the expense of the government.8

6

§ 522f. Statutory presumptions in criminal cases. Amongst other presumptions which have been established by statute in criminal cases are the following:

By the Act of August 27, 1894, concerning the forging, counterfeiting or fraudulently using or selling of stamps, "if any person shall knowingly and without lawful excuse (the proof whereof shall lie on the person accused) have in his possession any washed, restored, or altered stamps, which have been removed from any article, paper, instrument, or writing, then, and in every such case, every person so, offending, and every person knowingly and wilfully aiding, abetting, or assisting in committing any such offense as aforesaid, shall, on conviction thereof, forfeit the said counterfeit, washed, restored, or altered stamps and the articles upon which they are placed and be punished by fine not exceeding one thousand dollars, or by imprisonment and confinement to hard labor not exceeding five years, or both, at the discretion of the court. And the fact that any adhesive stamp so bought, sold, offered for sale, used, or had in possession as aforesaid, has been washed or restored by

4U. S. R. S., § 878.

5 Crumpton v. U. S., 138 U. S. 361, 365, 34 L. ed. 958, 960; Goldsby v. U. S., 160 U. S. 70, 73, 40 L. ed. 343, 344.

6 Crumpton v. U. S., 138 U. S. 361, 364, 34 L. ed. 958, 959.

7 Goldsby v. U. S., 160 U. S. 70, 40 L. ed. 343.

8 O'Hara v. U. S., C. C. A., 129 Fed. 551, 64 C. C. A. 81.

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