Mr. Carpenter. Just read it, Mr. Stenographer. He says nothing of the kind.
The Stenographer, (reading)
I insisted that we had the right then to produce them, and the Court decided that we had not.
Mr. Ingersoll. That is exactly what I say.
The Court. The Court did not give any intimation at that time, but after that point in the trial had passed, several days, several weeks, I think, the attention of the Court was called to this question, and the Court remarked, in the course of the opinion, that it understood the law to be that after a party, upon whom notice had been given to produce books, had failed to produce the books, and the other side had given secondary evidence, then the Court would not allow the party having the books to produce them for the purpose of contradicting the secondary evidence.
Mr. Ingersoll. That is all I claim.
The Court. But there was no such offer made, so far as I recollect.
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.