Opinion of the Court.

stances can be accounted for consistently with his innocence, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would tend to support the charge." The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable. 1 Starkie on Evidence, 54; People v. Hovey, 92 N. Y. 554, 559; Mercer v. State, 17 Tex. App. 452, 467; Gordon v. People, 33 N. Y. 501, 508.

But this presumption does not apply to every fact in the case which it may be in the power of the defendant to prove. He is not bound to anticipate every fact which the government may wish to shew in the course of the trial, and produce evidence of that fact. In this case the wife was not a competent witness either in behalf of, or against her husband; if he had brought her into court, neither he nor the government could have put her upon the stand, and he was under no obligation to produce her for the purpose assigned by the district attorney, that the witnesses for the government could see her and identify her as the woman who was said to have been with the defendant in the Indian country before the unknown man's remains or bones were found. Permission to make this comment was equivalent to saying to the jury that it was a circumstance against the accused that he had failed to produce his wife for identification, when, knowing that she could not be a witness, he was under no obligation to do so. The jury "would be likely to draw the inference that she was prevented from testifying for her husband because her evidence might be damaging. It was in fact as if the court had charged the jury that it was a circumstance against him that he had failed to produce his wife in court.

The view we have taken of this assignment of error renders it unnecessary to consider the others.

The judgment must be

Reversed, and the case remanded with instructions to set aside the verdict and grant a new trial.

Dissenting Opinion: Brewer, J.

MR. JUSTICE BREWER dissenting.

case.

I dissent from the opinion and judgment of the court in this I think that the absence of the defendant's wife from the court-room was, under the circumstances, a legitimate subject of comment in argument. The theory of the prosecution was, that one of the two men who came to Vian was murdered by the other; that the body found was that of the murdered man; that the defendant was the murderer. The testimony was abundant that these men were accompanied in their trip by the wife and two small children of one of them. Defendant attempted to prove an alibi, and to show that at the times named, and when these two men were in the Territory, he was in Washington County, Arkansas, more than a hundred miles away, and that his wife was with him there. Witnesses for the prosecution who saw the two men and the woman at Vian, and who identified this defendant as one of those men, would unquestionably be strengthened in their testimony, if upon seeing the woman they were also able to identify her. There might be some mark, some peculiarity of feature in the wife-something, perhaps, for the time being forgotten which would make the witnesses absolutely sure that she was the woman who was present in the Territory. And, conversely, there might be some peculiarity in the features of that woman which, not found in the defendant's wife, would have led the witnesses to hesitate as to their identification of him. One way or the other, a sight of her by the witnesses for the prosecution might be a significant factor in determining his identity. There was evidence before the jury that she was in Fort Smith during the trial, and yet she was not in the court-room by the side of her husband, or where she could be seen by all the witnesses. It is true several reasons for her absence might be suggested: She might have been in such a condition of health as to render it unsafe for her to come to the court-room; she might have been alienated from him, and indifferent as to his conviction or acquittal. But, nevertheless, it was a suggestive fact, and an obvious fact, and, therefore, a legitimate subject of comment

Dissenting Opinion: Brewer, J.

by counsel. I do not understand that a jury in their deliberations are limited to a consideration of that which is, strictly speaking, testimony, but may properly consider any facts developed in the trial from which a reasonable inference may be drawn for or against either party. If, for instance, the fruits or instruments of crime are introduced in evidence, is not the action and conduct of the defendant at the sight of them, as also his demeanor generally in the presence of the jury, a matter of consideration and legitimate comment? If it be developed that a witness exists, presumably under the control of the defendant, who can throw light upon a vital matter, and he is not produced, may not the jury fairly consider that fact, and may not counsel comment on it? In the case of Commonwealth v. Clark, 14 Gray, 367, there was testimony tending to show that the son of defendant was present and participated in some of the acts relied upon as evidence of guilt. The son was not called as a witness by the defendant, and in the argument of the district attorney this fact was commented upon as tending to show his guilt. An instruction was asked to the effect that the jury must find the defendant guilty, if at all, upon the evidence given under oath in the case, and not from the absence of any witness who might have been produced, but was not. This instruction the court refused to give, but told the jury in substance that it was proper to consider the omission to produce this witness. In respect to this matter the Supreme Court observed as follows: "The omission of the defendant to produce his son as a witness to meet and explain the evidence offered by the government in support of the indictment was a proper subject of comment by counsel, before the jury, and might well be considered by them in connection with the testimony in the case. The witness was in the employment of the defendant and in his interest, and could probably have given an explanation of some of the facts tending to show the guilt of the defendant, if they were susceptible of any construction favorable to his innocence. The failure to call the witness was not relied on as substantial proof of the charge by the government; other evidence had been. offered to establish that, which was submitted to the jury

Dissenting Opinion: Brewer, J.

with proper instructions. If this evidence, unexplained, tended to prove his guilt, and he failed to bring evidence within his control to explain it, his omission to do so was a circumstance entitled to some weight in the minds of the jury.”

In that case, as in this, there might have been some satisfactory reason for the absence of the witness; but none was given, and it was held, and rightly, that his non-production was a subject for consideration and also for comment. See also Gavigan v. Scott, 51 Michigan, 373; Tobin v. Shaw, 45 Maine, 331; Commonwealth v. Webster, 5 Cush. 295, 316; McDonough v. O'Neil, 113 Mass. 92; Blatch v. Archer, Cowper, 63, 65; 1 Starkie on Evidence, 54. Somewhat analogous are the following cases: State v. Griffin, 87 Missouri, 608, in which the prosecuting attorney commented upon the fact that the defendant's mother, though living only fifteen miles from the court-room, was not present at the trial, and had evidently abandoned him; and such comments were held by the Supreme Court not sufficient to disturb the judgment. It is true, however, the attention of the trial court was not called to the matter. North Carolina v. Jones, 77 N. C. 520, in which the defendant, having had a witness sworn, declined to examine him, and that fact was commented on by the prosecuting officer in his closing argument. Objection was made by the defendant, but the court declined to interpose; and in this it was held by the Supreme Court that there was no error. Inman v. Georgia, 72 Georgia, 269, 278. In this case it appeared that a continuance had once been obtained on the ground of the absence of a witness, and that when the trial was had the witness was present in court, but was not sworn or examined. Objection was made, but the court permitted the counsel to proceed, and in respect to this the Supreme Court observed: (6 The court held that the conduct of the accused and his counsel during the continuance of the trial were the proper subjects of comment by the counsel engaged in the case. Counsel are allowed the largest liberty in the argument of cases before juries; and whether the argument be logical or illogical, or whether the inferences and deductions drawn by them are correct or not, this court will have no power to intervene.

Dissenting Opinion: Brewer, J.

Facts not proved cannot be discussed, but illogical conclusions from facts proved may be insisted upon, and there is no remedy; but in this case, we think, it was legitimate for counsel to allude to what had transpired in the case, from the time it was called through its whole proceeding, and the conduct of the party or his counsel in connection therewith was the proper subject of comment, and there was no error on the part of the court in allowing the comments of the solicitor general in this case." People v. White, 53 Michigan, 537, 539. This was a case of bastardy, in which counsel commented upon the resemblance between the defendant and the child of the complaining witness, then present in the court-room, and in respect to this the Supreme Court said: "We do not well see how the jury could be prevented from noticing the child, which was properly enough in court; and while arguments of resemblance in so young an infant, in the absence of peculiarities, are a little preposterous, it is difficult on this record to determine that any rule of law was violated in discussing it."

In this case the wife could not be a witness for her husband, it is true; and yet her presence in the court-room, a presence ordinarily to be expected, would most certainly and obviously have aided materially in the identification of the defendant. She was in the city, as the testimony showed, and her absence from the court-room, unexplained, certainly suggested a motive, and that motive one which cast suspicion upon the defendant. I think the rule that should be laid down is, that, in the absence of express prohibition, every fact which, in no illegal manner, comes to the knowledge of the jury during the progress of a trial, and which may influence their minds, is a subject of comment by counsel in their argument. The fact that defendant's wife was in the city was developed by the testimony; that she was not present in the court-room was an obvious fact; the witness who saw the defendant at or near Vian, as they testified, saw his wife there with him; and it would most certainly add to the force of their testimony if they could have said, We there saw not merely this defendant on trial, but this woman sitting by his side. Every man would feel surer of an identification which included two