There is nothing in this case to take it out of the ruling in
Isaacs v. United States, 159 U. S. 457,
that an application for a continuance is not ordinarily subject to
review by this Court.
In the trial of a person accused of crime, the exercise by the
trial court of its discretion to direct or refuse to direct
witnesses for the defendant to be summoned at the expense of the
United States is not subject to review by this Court.
Moore v. United States, 150 U. S.
57,
150 U. S. 61,
affirmed and applied to a question raised in this case.
While it is competent, if a proper foundation has been laid, to
impeach a witness by proving statements made by him, that cannot be
done by proving statements made by another person not a witness in
the case.
It is within the discretion of the trial court to allow the
introduction of evidence, obviously rebuttal, even if it should
have been more properly introduced in the opening, and, in the
absence of gross abuse, its exercise of this discretion is not
reviewable.
Rev.Stat. § 1033 does not require notice to be given of the
names of witnesses called in rebuttal.
If the defendant in a criminal case wishes specific charges as
to the weight to be attached in law to testimony introduced to
establish an alibi, he may ask the court to give them, and, if he
fails to do so, the failure by the court to give such instruction
cannot be assigned as error.
The plaintiff was indicted on the 8th of February, 1895,
Page 160 U. S. 71
for the murder of Ernest Melton, a white man, and not an Indian.
The crime was charged to have been committed at the "Cherokee
Nation, in the Indian country, on the 18th day of November, 1894."
Prior to impaneling the jury, on the 23d of February, 1895, the
accused filed two affidavits for continuance until the next term of
court. The first, filed on the 12th of February, 1895, was based on
the ground that for some time prior to the finding of the
indictment, the defendant had been in jail, was sick, and unable
properly to prepare his defense, and that he was informed, if
further time were given him, there were witnesses, whose names were
not disclosed in the application, who could be produced to
establish that he was not guilty as charged. This was overruled.
The second was filed on the 22d day of February, upon the ground
that four witnesses, whom the court had allowed to be summoned at
government expense, were not in attendance, and that there were
others, whose names were given, who could prove his innocence, and
who could be produced if the case were continued until the next
term of court. The affidavit made no statement that the four
witnesses had been actually found at the places indicated, and gave
no reason for their nonattendance, and asked no compulsory process
to secure it.
Before the trial, the accused filed three requests for leave to
summon a number of witnesses at government expense. The first was
made on the 12th of February, and asked for twenty-five. The
affidavit made by the accused gave the names of the witnesses, and
the substance of what was expected to be proven by them. The court
allowed fifteen. Of the ten witnesses disallowed, two were
government witnesses, and were already summoned; seven were the
wives of witnesses whom the court ordered summoned, the affidavit
stating that the husband and wife were relied on to prove the same
fact. The other witness disallowed, the affidavit disclosed, was
also relied on simply to corroborate the testimony of some of the
witnesses who were allowed. The second request was made on the 16th
of February, asking for six witnesses, all of whom were ordered to
be summoned. The third request was made on the 19th of February for
two additional witnesses -- one Harris and wife.
Page 160 U. S. 72
This application was refused, both being government
witnesses.
On the trial, the uncontradicted testimony on behalf of the
government was that at about noon, on the day stated, two men
robbed a store at a town in the Indian Territory, and that during
the course of the robbery, the murder was committed by one of those
engaged therein. The testimony for the prosecution tended to
identify the accused not only as having been one of the robbers,
but also as being the one by whom the murder was committed. The
testimony for the defense tended to disprove that of the
government, which identified the accused, and tended, moreover, by
proof of an alibi, to demonstrate the impossibility of the
offense's having been committed by him. There was a verdict of
guilty as charged. The defendant brings the case, by error,
here.
MR. JUSTICE WHITE, after stating the facts, delivered the
opinion of the Court.
There are 14 assignments of error. Two address themselves to the
refusal of the court to grant the applications for continuance;
three to the action of the court in denying the request to summon
certain witnesses at government expense; four relate to rulings of
the court admitting or rejecting testimony; and, finally, five to
errors asserted to have been committed by the court in its charge
to the jury. We will consider these various matters under their
respective headings.
In a recent case we said:
"That the action of a trial court upon an application for
continuance is purely a matter of discretion, not subject to review
by this Court unless it be clearly shown that such discretion has
been abused, is settled by too many authorities to be now open to
question."
Isaacs v. United States, 159 U.
S. 487, and authorities there cited. We can see nothing
in the action on the applications for continuance,
Page 160 U. S. 73
which we have recited in the statement of facts, to take it out
of the control of this rule. The contention at bar that, because
there had been no preliminary examination of the accused, he was
thereby deprived of his constitutional guaranty to be confronted by
the witnesses, by mere statement demonstrates its error.
There was likewise no error in the action of the court in
relation to the various requests to summon witnesses at government
expense. On the contrary, the fullest latitude was allowed the
accused. Were it otherwise, the right to summon witnesses at the
expense of the government is by the statute, Rev.Stat. § 878, left
to the discretion of the trial court, and the exercise of such
discretion is not reviewable here.
Crumpton v. United
States, 138 U. S. 361,
138 U. S.
364.
There was proof showing that at the time of the robbery, a watch
charm had been taken by the accused from one of the persons present
in the house which was robbed. This charm was produced by a witness
for the prosecution, who testified that it had been given him by
one Verdigris Kid, who the testimony tended to show had
participated in the robbery; that this giving of the charm to the
witness had taken place in the presence of the accused; that at the
time it was given, the fact of the robbery was talked of by the
accused, he saying "that he had made a little hold up, and got
about one hundred and sixty-four dollars, as well as I remember,
and that he had shot a fellow, I believe." To the introduction of
the watch charm objection was made. We think it was clearly
admissible, and came directly under the rule announced in
Moore
v. United States, 150 U. S. 61.
John Schufeldt, the son of the man whose store was robbed, in his
testimony on behalf of the government, identified the accused not
only as one of the robbers, but also as the one by whom the murder
was committed. He was asked on cross-examination whether he had
heard his father, in the presence of a Mr. John Rose, say that the
robbers were one an Indian and the other a white man. He answered
that he did not recollect hearing him make such a statement. On the
opening of the defendant's case, Schufeldt was recalled for further
cross-examination, and the question was again asked
Page 160 U. S. 74
him, he replying to the same effect. Thereupon the defense put
Rose upon the stand to testify to the conversation had by him with
the father of Schufeldt in his (John Schufeldt's) presence, the
father not being a witness in the cause. On objection, the
testimony was excluded on the ground that, while it would be
competent, if the proper foundation had been laid, to impeach the
witness by proving statements made by him, it was incompetent to
affect his credibility by proving statements made by another
person, not a witness in the case. The ruling was manifestly
correct.
The government called a witness in rebuttal, who was examined as
to the presence of the defendant at a particular place at a
particular time, to rebut testimony which had been offered by the
defendant to prove the alibi upon which he relied. This testimony
was objected to on the ground that the proof was not proper
rebuttal. The court ruled that it was, and allowed the witness to
testify. It was obviously rebuttal testimony. However, if it should
have been more properly introduced in the opening, it was purely
within the sound judicial discretion of the trial court to allow
it, which discretion, in the absence of gross abuse, is not
reviewable here.
Wood v. United
States, 16 Pet. 342,
41 U. S. 361;
Johnston v.
Jones, 1 Black 209,
66 U. S. 227;
Commonwealth v. Moulton, 4 Gray 39;
Commonwealth v.
Dam, 107 Mass. 210;
Commonwealth v. Meaney, 151 Mass.
55;
Gaines v. Commonwealth, 50 Penn.St. 319;
Leighton
v. People, 88 N.Y. 117;
People v. Wilson, 55 Mich.
508, 515;
Webb v. State, 29 Ohio St. 351; Wharton's
Criminal Pleading and Practice § 566; 1 Thompson on Trials § 346,
and authorities there cited.
During the course of defendant's evidence and before he had
closed his case, testimony was elicited on the subject of the
defendant's hat, the purpose of which tended to disprove some of
the identifying evidence given on the opening of the case. When
this was adduced, the prosecuting officer notified the defense that
he would be obliged to call in rebuttal one Heck Thomas.
At a subsequent period in the trial, Heck Thomas was sworn. As
he was about to testify, objection was made, as follows:
Page 160 U. S. 75
"Counsel for Defendant: We were going to object to Mr. Thomas'
being sworn. We now object to his being examined as a witness on
the ground that, under the statute, the defendant is required to
have forty-eight hours' notice of witnesses to be used by the
government, and we have had no notice of an intention to use Mr.
Thomas as a witness."
"The Court: The court has always held, if it is in rebuttal, it
is absolutely impossible to give the defendant notice of the
witness. If that is the rule, that we have to give forty-eight
hours' notice to the defendant of witnesses to be used in rebuttal,
it would simply amount to a defeat of justice, and a defeat of a
trial altogether. The reason of the rule is very manifest, but,
when it comes to facts that are purely in rebuttal, no notice can
be given, because it is impossible."
"Counsel for Defendant: Of course, I understand the position of
the court, but we simply want to discharge what we thought our duty
in this matter, and we except to any statement of what the witness
will prove, and we except to the use of the witness. We do not
think it is competent either in chief or rebuttal, and therefore we
waive an exception to the whole pleading."
"The Assistant District Attorney: The facts I want to establish
by Mr. Thomas are about these: that he, in attempting to capture
the defendant, had a fight with him on the 16th of November. A
witness for the defendant was on the stand, and the court remembers
what he says about the time he saw the defendant, a week after the
Frank Daniels fight. We propose to show the date of that fight,
which will be the 16th of November, and also as to the kind of hat
the defendant was wearing, and that he had at that time a wire
cutter in his possession."
"Counsel for Defendant: The wire-cutter part would certainly not
be rebuttal."
"The Assistant District Attorney: Yes, it is, because they have
introduced evidence to show that this country was covered with wire
fences."
Conceding that the facts as to which the witness was called to
testify were matters of rebuttal, the absence of the notice
Page 160 U. S. 76
required, Rev.Stat. § 1033, did not disqualify him. The
provision of the statute is that
"When any person is indicted for treason, a copy of the
indictment and a list of the jury, and of the witnesses to be
produced on the trial for proving the indictment, . . . shall be
delivered to him at least three entire days before he is tried for
the same."
The next sentence in the section makes the foregoing applicable
to capital cases, but reduces the time to two entire days before
the trial. The words "for proving the indictment" and the
connection in which they are used clearly refer to the witnesses
relied upon by the prosecution to establish the charge made by the
indictment. They do not extend to such witnesses as may be rendered
necessary for rebuttal purposes resulting from the testimony
introduced by the accused in his defense. Indeed, that they do not
apply to rebuttal is obvious from the very nature of things, for if
they did, as was well said by the trial judge, it would be
impossible to conduct any trial. Upon state statutes containing
analogous provisions, the authorities are free from doubt.
State v. Gillick, 10 Ia. 98;
State v. Ruthven, 58
Ia. 121;
State v. Huckins, 23 Neb. 309;
Gates v.
People, 14 Ill. 433;
Logg v. People, 92 Ill. 598;
State v. Cook, 30 Kan. 82;
Hill v. People, 26
Mich. 496.
That the testimony as to the hat, sought to be elicited from the
witness Thomas, was purely rebuttal is equally clear. This is also
the case with regard to the testimony as to the wire cutter. The
defense, in its attempt to make out the alibi, introduced testimony
tending to show that the defendant at a given time was many miles
from the place of the murder, and that by the public road he could
not have had time to reach this point and have been present at the
killing. In order to prove that he could not have reached there by
any other more direct route than the public road, one of his
witnesses had testified that the country was covered with wire
fences. It was competent to show in rebuttal of this statement that
the accused was in possession of a wire cutter by which the jury
could deduce that it was possible for him to travel across the
country by cutting the fences. Of course, the weight to be
Page 160 U. S. 77
attached to the proof was a matter for the jury, but it was
clearly rebuttal testimony, and its admissibility as such is
covered by the ruling in
Moore v. United States, ubi
supra.
The four errors assigned as to the charge of the court do not
complain of the charge intrinsically, but are based upon the
assumption that, although correct, it was misleading, and tended to
cause the jury to disregard the testimony offered by the defendant
to establish an alibi. But the charge, in substance, instructed the
jury to consider all the evidence and all the circumstances of the
case, and, if a reasonable doubt existed, to acquit. If the accused
wished specific charges as to the weight in law to be attached to
testimony introduced to establish an alibi, it was his privilege to
request the court to give them. No such request was made, and
therefore the assignments of error are without merit.
Texas
& Pacific Railway v. Volk, 151 U. S.
73,
151 U. S.
78.
Affirmed.
