auditors respectively charged with the examination of those accounts and authenticated under the seal of the Treasury Department.'

12

"Copies of the quarterly returns of postmasters and of any papers pertaining to the accounts in the office of the sixth auditor, and transcripts from the money-order account-books of the Post Office Department, when certified by the sixth auditor under the seal of his office shall be admitted as evidence in the courts of the United States, in civil suits, and criminal.prosecutions." 3

"All records and exemplifications of books, which may be kept in any public office of any State or Territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with the certificate of the presiding justice of the court of the county, parish, or district in which said office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the State, or Territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or country aforesaid in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Territory or country, as aforesaid, from which they are taken."4

This does not require the adoption of the practice in the State courts as to the preliminaries required for the introduc

2 U. S. R. S., §§ 887, 884. See U. S. v. Gaussen, 19 Wall. 198, 22 L. ed. 41, supra, § 333a.

3 U. S. R. S., § 889, supra, § 333b. 4 U. S. R. S., § 906, Comp. St., § 1520.

tion of such papers including filing before trial and notice to the other side.5 It has been held that when books of account are in court and subject to the inspection. and use of the defendant's counsel, it is not error to allow a summary of their contents to be put in evidence.6 State statutes authorizing historical, medical, and scientific books to be read in evidence have not been followed."

§ 523c. Competency of witnesses in criminal cases. The statute providing that the rules of decision as to the competency of witnesses shall be the same in the State and Federal courts,1 does not apply to criminal cases. It has been said that the law which there applies is that of the State as it was when the courts of the United States were established by the Judiciary Act of 1789.8

A conviction of a felony in a court of the same, or another State does not disqualify a witness from testifying in the Federal court. It has been held in the Second Circuit that a witness previously convicted of felony does not thereby become incompetent as a witness in a Federal court. It seems to be the rule in the Second," Fifth, and Eighth, circuits that a con

8

5 Myres v. U. S., C. C. A., 216 Fed. 779.

6 Lemon v. U. S., C. C. A., 164 Fed. 953, 960. As to admissibility of books of a corporation. See supra, §§ 332, 333g.

7 Union Pac. Ry. Co. v. Yates, C. C. A., 79 Fed. 584; U. S. v. Perkins, 221 Fed. 109.

§ 523c. 1 U. S. R. S., § 858; supra, § 339.

2 U. S. v. Hughes, 175 Fed. 238; U. S. v. Miller, 236 Fed. 798, but see U. S. v. Simms, 161 Fed. 1008, holding that their competency must be determined by the common law.

8 U. S. v. Reid, 12 How. 361, 363, 366, 13 L. ed. 1023, 1024, 1025; Logan v. U. S., 144 U. S. 263, 301, 36 L. ed. 429, 442; U. S. v. Hughes, 175 Fed. 238.

4 Rosen v. U. S., 245 U. S. 467,

affirming s. c. C. C. A., 237 Fed. 810; Pakas v. U. S., C. C. A., 240 Fed. 350; Brown v. U. S., C. C. A., 233 Fed. 353; Logan v. U. S., 144 U. S. 263, 36 L. ed. 429; U. S. v. Hughes, 175 Fed. 238. Contra, U. S. v. Hughes, 175 Fed. 238.

5 Logan v. U. S., 144 U. S. 263, 303, 36 L. ed. 429, 443.

6 Safford v. U. S., 252 Fed. 471, 474.

7 Safford v. U. S., 252 Fed. 471, 474.

8 McCoy v. U. S., C. C. A., 247 Fed. 861, in which the opinion was based upon the law in force in Florida when that State was admitted to the Union. See Rosen v. U. S., C. C. A., 237 Fed. 810.

9 Manuel v. U. S., C. C. A., 254 Fed. 273.

viction in a Federal court does not make a witness incompetent to testify. But the rule in the Eighth Circuit is otherwise in case of a conviction in a Federal court of an infamous crime.10 The conviction of a military offense by a court martial does. not disqualify a witness.11

A pardon even if not accepted 12 restores the competency of a witness.

It has been held in the Ninth Circuit that a witness who does not believe in a Supreme Being, who will reward or punish in another world for sins committed here, is not competent.13

The lawful husband, or wife of an accused is incompetent to testify against him or her, as the case may be, upon a criminal prosecution, except in special cases.14 By the common law the wife could testify when the prosecution was for personal injury to her.15 A few cases hold that this exception should be extended so as to permit the wife to testify against her husband upon the trial of an indictment for his inducing her to go, in transporting her from one State to another for immoral purposes. A Federal statute makes the wife a competent witness in a prosecution for bigamy, polygamy or unlawful cohabitation.17 It has been held that upon a trial for conspiracy where the husband has pleaded guilty, the wife may testify against the other defendants to facts which do not involve her husband.18

16

The act of March 3, 1887, provides, "In any proceeding or examination before a grand jury, a judge, justice, or a United States commissioner, or a court, in any prosecution for bigamy,

79, 55 L. ed. 102; Johnson v. U. S., C. C. A., 221 Fed. 250; Denning v. U. S., C. C. A., 247 Fed. 463.

15 Cohen v. U. S., C. C. A., 214 Fed. 23; Denning v. U. S., C. C. A., 247 Fed. 463.

16 Cohen v. U. S., C. C. A., 214 Fed. 23; U. S. v. Bozeman, 236 Fed. 432; Denning v. U. S., C. C. A., 247 Fed. 463. Contra, Johnson v. U. S., C. C. A., 221 Fed. 250.

17 Act of Mar. 3, 1887, ch. 397, 24 St. at L. 635.

18 U. S. v. Knoell, 230 Fed. 509.

polygamy, or unlawful cohabitation under any statute of the United States, the lawful husband or wife of the person accused shall be a competent witness, and may be called, but shall not be compelled to testify in such proceeding, examination, or prosecution without the consent of the husband or wife, as the case may be; and such witness shall not be permitted to testify as to any statement or communication made by either husband or wife to each other, during the existence of the marriage relation, deemed confidential at common law." 19

Confidential communications to an attorney are excluded.20 In the Federal courts, there is no law forbidding a conviction upon the uncorroborated testimony of an accomplice.21

§ 523d. Testimony of accomplices. In the Federal courts, there is no law forbidding a conviction upon the uncorroborated testimony of an accomplice,1 although a State statute so provides. Such testimony should be received with caution. It is the better practice to charge the jury to this effect. It has been held to be no error to refuse to instruct the jury that they should not rely upon such testimony, unless it produces in their mind a most positive conviction of its truth.5

§ 523e. Testimony of defendant. By the Act of March 16, 1878, Congress provides: "That in the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, Territorial courts, and

19 24 St. at L. 635, ch. 397, § 1, Comp. St., § 1466.

20 York v. U. S., C. C. A., 224 Fed. 88.

21 Richardson v. U. S., C. C. A., 181 Fed. 1; U. S. v. Murphy, 253 Fed. 404.

§ 523d. 1 Richardson v. U. S., C. C. A., 181 Fed. 1; Mark Yick Hee v. U. S., C. C. A., 223 Fed. 732; Erber v. U. S., C. C. A., 234 Fed. 221; McGinniss v. U. S., C. C. A., 256 Fed, 621; Freed v. U. S., 266 Fed. 1012.

2 Bandy v. U. S., C. C. A., 245 Fed. 98; Knoell v. U. S., C. C. A., 239 Fed. 16.

3 Lung v. U. S., C. C. A., 218 Fed. 817; Diggs v. U. S., C. C. A., 220 Fed. 545; Knoell v. U. S., C. C. A., 239 Fed. 16; Graboyes v. U. S., C. C. A., 250 Fed. 793; Hollis v. U. S., C. C. A., 246 Fed. 832.

4 Diggs v. U. S., C. C. A., 220 Fed. 545, 552; Gretsch v. U. S., C. C. A., 242 Fed. 897; Bandy v. U. S., C. C. A., 245 Fed. 498; U. S. v. Murphy, 253 Fed. 404; McGinniss v. U. S., C. C. A., 256 Fed. 621.

84.

Nee v. U. S., C. C. A., 267 Fed.

courts-martial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him." Where there are two or more defendants any of them may take the stand against the objection of the others; 2 although the witness has been promised immunity, and such promise has not been disclosed to those who refuse to testify. In such a case, it was held to be incompetent for them to testify as to their intent in doing certain acts, when they had pleaded guilty.5

A defendant cannot compel another defendant to testify.6 It is not essential to the admissibility of his testimony that he be first warned that what he says may be used against him.7 When testifying voluntarily, he may be fully cross-examined as to the testimony which he gives.8

If the defendant does not take the stand, he is entitled to an instruction in the language of the statute, provided he requests it clearly, even although there has been no comment upon his failure to testify. It is no error to refuse to give the following instructions: "The defendant has seen fit to rest his case upon the evidence which has been introduced on behalf of the government, including such testimony as may have been elicited upon cross-examination of the government's witnesses. You are instructed that he had a perfect right to do so, and that fact must in no wise prejudice you against him." 10

If the defendant takes the stand his failure to testify as to any matter may be called to the attention of the jury.11 Whether