Mr. Ingersoll. Why should we make the offer after your Honor had decided that we could not do it?
Mr. Merrick. I will answer the question. Because whether it would have been accepted or not was a question for the counsel for the Government when the offer was made. And again, the learned counsel will recollect that after the notice was given, when S. W. Dorsey was on the stand on cross-examination, I demanded those books and those stubs, and he asked leave to consult his counsel. The Court denied that request, and then there was a peremptory refusal to produce any book or any paper.
The Court. Oh, yes. Mr. Ingersoll and Mr. Davidge repeatedly announced to the Court that they were not going to produce books to assist the prosecution.
Mr. Ingersoll. Yes; I said that twenty times, and the Court, as I understood it, held that after we had refused to produce the books and driven the other party to secondary evidence, we could not then produce the books.
The Court. You made no offer to produce the books.
Mr. Ingersoll. I resisted the opinion of the Court and made the best argument I could, but the Court said that was not the law.
The Court. The remark of the Court arose upon an argument on the part of Mr. Ingersoll, and if I am not mistaken, upon the effect of the refusal to produce the books and papers, Mr. Ingersoll contending that there was no presumption against his client on account of the refusal to produce the books and papers, and that the jury ought to be instructed that the only effect of refusing to produce the books and papers was to leave the case upon the secondary evidence.
Mr. Ingersoll. I am not referring to that discussion, nor to that decision of your Honor; I am referring to the decision you made during the trial.
The Court. That was the only occasion since this trial began, in which the Court referred to that rule of law which denied the right to introduce primary evidence for the purpose of contradicting the secondary evidence, after the primary evidence had been withheld in the first instance.
Mr. Ingersoll. Of course, I am not absolutely certain, I never am; but I will endeavor to find in the record exactly what you said on that subject.