Page:Federal Reporter, 1st Series, Volume 10.djvu/563

 UNITED STATES V. SCHINDLEE. 551- �objection a party may always be sworn. In this case, for all that appears, no objection would have been made to swearing Smith. Indeed, the district attorney waived this objection when he pressed upon the jury that the defendant had not asked to have Smith sworn. Still fiirther, to render it impossible for the defendant to present Smith's testimony to the jury, not only must objection have been made, but the objection must have been sustained by the court at the trial. There was no sueh ruling at the trial. Smith was not offered as a witness. Necessarily, the objection that he was a party to the record was not made; conseqnently, there could have been no ruling that he was incompetent, nor can the presumption be now made that Smith would have been held to be incompetent if he had been offered, and in this way foundation be laid for the proposition that it was impossible for the defendant to present Smith's testimony to the jury. So far as is known, no adjudged case bas declared that, on the trial of an iudictment in a federal court, held within the state of New York, a party to the record, who is not a party to the trial, is an incompetent witness; and it cannot now be surmised that if the ob- jection had been taken to Smith upon this ground, at the trial, he would have been excluded, and sueh surmise be made the foundation for an application for a new trial. Moreover, the minutes show that upon the trial the competency of Smith as a witness for the defend- ant was aesumed by the prosecution and the court, and also by the counsel for the defendant. For, in the summing up, the district attorney pressed upon the jury the fact that the defendant had not called Smith, and, in charging the jury, the court used the language quoted, without eliciting a suggestion in behalf of the defendant that Smith was incompetent. Purthermore, it was strongly implied, in that portion of the charge aiready quoted, that Smith was competent as a witness for the defendant. If it was intended in behalf of the defendant to make a point based upon the incompetency of Smith, this implication in the charge should have been made the subject of an objection to the charge taken at the time, and in sueh a form as to call the court's attention to the implication, and that it was com- plained of by the defendant. The general objection wholly failed to do tlUB, and, doubtless, because the incompetency of Smith was not then thought of. Any other supposition would impute to the counsel for t) e defendant an intention to conceal from the court the point of bis objection and the reason of his request. But the implication in the charge that Smith was competent as a witness for the defendant was a ruling in favor of the defendant, and certainly, in the absence ��� �