Graves v. United States (150 U.S. 118)/Opinion of the Court
The first assignment of error is to the action of the court in permitting 'the district attorney, in his closing argument to the jury, over the objections of the defendant, to comment upon the absence of the defendant's wife from the presence of the court, and to state, among other things, to the jury, that the defendant's wife ought to have been sitting by the side of her husband during the trial, so that 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; and other like arguments, statements, and declarations.' While we do not wish to be understood as holding that comments by the district attorney upon the facts not in evidence, or statements made, having no connection with the case, or exaggerated expressions, such as counsel, in the heat of trial, are prone to indulge in, will necessarily vitiate a verdict, if not objected to, yet when the attention of the court is called to them specially, it is its duty to interfere, and put a stop to them, and objection is made, if they are likely to be prejudicial to the accused. Wilson v. U.S., 149 U.S. 60, 13 Sup. Ct. Rep. 765; Hall v. U.S., 150 U.S. --, 14 Sup. Ct. Rep. 22.

Had the wife been a competent witness, the comments upon her absence would have been less objectionable. It was said by Chief Justice Shaw in the case of Com. v. Webster, 5 Cush. 295, 316: 'But when pretty stringent proof of circumstances is produced, tending to support the charge, and it is apparent that the accused is so situated that he can offer evidence of all the facts and circumstances, as they existed, and show, if such was the truth, that the suspicious circumstances 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, Ev. 54; People v. Hovey, 92 N. Y. 554, 559; Mercer v. State, 17 Tex. App. 452, 467; Gordon v. People, 33 N. Y. 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 show 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 errors 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.

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