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.
The Court. You have not heard anything of that kind from the Court.
Mr. Ingersoll. I am not saying that. I said "claimed"; if I had referred to your Honor I should have said "decided." Here is another instruction of the court:
If you believe the books were kept which contained the facts necessary to show the real amount of whiskey in the hands of the defendants in October, 1865, and the amount which they had sold during the next ten months, or that the defendants, or either of them, could by their own oath resolve all doubts on this point; if you believe this, then the circumstances of this case seem to come fully within this most necessary and beneficent rule.,