Page:Federal Reporter, 1st Series, Volume 10.djvu/562

 550 FEDERAL REfOBTEB. �part by "Wendalin Smith ; that on the next day, at the house of Mrs. Helfrich, the whole was paid to her, — Wendalin Smith, as well as him- self, being then present, and also Henry Peters. �Mrs. Helfrich swore that she never indorsed and never saw the pension check, and that when the money was paid to her she waa told by Schindler that the amount of the pension allowed was $500, which sum and no more was paid to her. �Peters was called by the proseeution, and he confirmed Mrs. Hel- rich's statement. The testimony of Wendalin Smith became, there- fore, of the utmost importance to Schindler, if bis statement was true. Schindler called Smith's wife as a witness, but omitted to call Smith, and without assigning any reason for the omission. The district attomey, in summing up to the jury, called attention to the fact that the defendant had omitted to call Wendalin Smith, and the court, in charging the jury, said : �" One man was there who is absent from the trial, and that is Wendalin Smith ; and it is my duty to call your attention to that f eature in the case. The failure to call Smith as a witness is an important feature in the case. It is for you to say whether the failure to call him is consistent with the statement of the accused, in view of the evidence in regard to Smith's conneo tion with the affair; his presence with the accused at the house of Mrs. Hel- frich on former occasions ; bis presence when the letter containing the check was opened; hisgoing to Montioello; his custody of the silver; and theother circumstances narrated by the witnesses." �At the close of the charge, the defendant's connsel excepted to the foregoing part of the charge, and requested the judge to charge that no inference is to be drawn against the defendant because of the non- production of eaid Smith as a witness ; which request was ref used and the defendant duly excepted to such refusai. The validity of these two exceptions is now to be considered. �It is said that error was committed in charging as above quoted, and in refusing to charge as above requested, because Wendalin Smith was not a competent witness for the defendant, for the reason that he was jointlyindicted with the defendant for the alleged ofience. This argument wrongly assumes that the fact disclosed by the indict- ment, namely, that Smith was a party to the record, rendered it im- possible for the defendant to present Smith's testimony to the jury. Manifestly, no such assumption can be permitted. It cannot be held to be a legal impossibility to swear a party to the record as a witness for the defendant. To exolude a party to the records from being a witness, it is necessary that objection be made. In the absence of ��� �