Mr. Ingersoll. That is not the point. Of course that will stand for what it is worth. I was arguing this point: Can the jury hatch and putty and plaster the secondary evidence with a presumption born of the failure to produce the books and papers?
The Court. What I mean is just this: If you should fail to produce the primary evidence, and then the secondary evidence of the contents is not contradicted——
Mr. Ingersoll. [Interposing.] It may not be contradicted, because it happens to be inherently improbable.
Mr. Merrick. The Government claims the law to be as your Honor has intimated, and we have formulated it in one of our prayers. But that abstract proposition is hardly applicable in the present case, for the Government claims the application of another and plainer proposition: That wherever a defendant himself takes the stand and has in his possession a certain paper which, when called upon on cross-examination to produce, he refuses, then a presumption unquestionably arises of such potency that it is difficult to resist.
Mr. Ingersoll. There is no difference, so far as the law is concerned, whether the defendant, as a defendant, fails to produce the books and papers, or whether, in his capacity as a witness, he fails to produce the books and papers. The law, it seems to me, is exactly the same.
Now, in this case of the United States vs. Chaffee et al. (18 Wall., 544), Justice Field denounces that you should presume against the party because he fails to produce books and papers known to be in his possession. And why? I suppose a party can not be presumed out of his liberty; he cannot be presumed into the penitentiary; and you cannot make a prison out of a presumption any more than you can make a gibbet out of a suspicion.
And again, the court instructed the jury that the law presumed that the defendants kept the accounts usual and necessary for the correct understanding of their large business and an accurate accounting between the partners, and that the books were in existence and accessible to the defendants unless the contrary were shown.
That same thing has been claimed here.
The Court. No.
Mr. Ingersoll. We have heard it very often that this was a large business.