UNITED STATES 11. MULLANEY.
(OVrC'ltz't (lou", E. D. ltli8aouri, E.D. September 20, 188'l.)
A party prosecuted in a United States district court for violating the election law, by writing namesimproperly on the registration book, who on the trial testifies, in his own behalf, that he did not write the names unlawfully written, m,aybecompelled,onhis cross-examination, to write the same names on , In the pre/lence of the jury, and such paper inay be offered in evidence a on and tbe jury permitted to compare it with the in the registrationbook; Bs,this iSB legitimate method of cross-examination,: and the witness, is ,not thereby compelled to furnish testimony ag-ains,t himself. l
Op 'writ o! Error to District Oourt. "' ThOB, P.Basnaw, Dist., Atty" for the United ,States. Ohester ,H. Krum, for defendant. ',
J., (or(tUy.) , This is a writ of error from the, district court. ,A llingleqpestion only has been presented and argued. That qU,estion is this: The defendant was chargl;ld'Yithaviolation of th,e election law. . The he wrqte nll,mes improperly on the registr!ttiop al1u testiniony tend.ing that ,fact. ,defendaJ;lt himself )Vept Qn the, witness stand, and was When it, Hsked .th;e, si:qgle qu 'stiou",hetAer wrote those names in that book. He that he did not. The goverllment, 9n called upo):} him totake a peuand write in the presence ofthejurytpose names.> objected., The court ,overrUled the objection, and pe wrot,e the names, ,and, when ,had the government, in rebuttal, offered the names thus written by him. The writing . was admitted, in Ejvidepce, and the jury were permitted to 'compare it with inthe registration error complained . of, defendant was compelled to fU,rnisp testim()J,ly against himself by thus writing in the presence of thy jury,and that the jury were WrJ;nitl1e4Jocompare this with that in, Counsel have argued the question under, aspects: First, they insist that it is not legitimate cross-examination of any witness who has simply testified that he did not make It writing; and, slxlYfld, that it is compelling him to furnish testimony against himself in violation of the constitutional protection. I think really there is but one question, and that is whether it was legitimate, in the cross-examination ofa witness who gave such direct testimony as he did, to compel him to so write in the presence of the jury. For while a defendant in a criminal case cannot be compelled to
I Respecting the latitude permissible ill a cross-examination of a defendant in a criminal prosecution, where he offers himself as witness, see Disque v. State, (N. J.) 8 AU. v. (Cal.) Rep. 281, and note; State v. Saunders. rOr.) 12 Pac. Rep. 15 Pac. Rep. 86; State v. Robertson, (S. C.) 1 S. E. Rep. 443; TlCkell v. RaIlway Co., (Mo,) 2 S. W. Rep. 407; State v. Brooks, (Mo.) 5 S. W. Rep. 257; State v. Johnson, (Iowa,) 34 N. W. Rep. 177.
give testimouyagainst himself. while he may not be put upon the stand against his will, yet if he avails hinlself of the privilege, and goes onto the witness stand, and testiJies in his own behalf, he subjects himself to the ordinary rules of cross-el'.amination, and, if thisw/ls legitimate cross-examination, then he cannot be heard to say that by it he furnished testimony against himself. He may be impeached in any way that any other witness, can be. Of Murse, cross-examination is, in the federal courts, limited to the matter of the <lirect examination, and cannot e:1\:tend beyond the facts and circumstances which are a part of or connected directly with the subject-matter of the direct testimony. The question will perhaps resolve itselfinto two forms or two phases. The first, is the writingof;the same names on an independent piece of paper, a matter directly connected with the subject of the direct testimony. I think there can be little doubt on that point. Of course, it would not be doubted but that questions could be asked as to whether the witness was present at the time of the writing, whether he could or could not write, and other kindred matters, because all that is connected directly with the question whether he did or did not make the writing upon the book. I suppose it matters not whether the case is one in which the testimony is sought to show that he did 'or did not make the writing. Supposing, in any civil case, a witness testifies that he did make a particular writing, would not it be germane to that matter to show that he 'could not write at all; to give him a pen, and have him show before the jury that he either could not write at' all, or tbat his writing was so completely variant from that in question that it was utterly impossible that he could have written it? Surely, the two matters are connected as closely as two things can be; and it would be conclusive against the ,testimony of any witness that he had written a certain writing, if it appeared from his own demonstration before thejury that he could not write at all, or that his handwriting was completely variant from that in question. ,Then the other phase is whether you can compel a witness on crOssexamination to do other than answer questions. This was a physical act which he was called upon to dl) in the presence of the jury. It is a matter of common experience in a court-room that witnesses are' often called upon either for some exposure of their person, or to do some physical act supporting or contradicting their direct testimony. A chemist who has stated that a certain test discloses the presence of poison may be called upon to repeat that test in the presence oithe jury, that they see whether the testimony is true, and the test accurate. A person who testifies as to his physical condition may be cOQlpelled, there being no improper exposure of person, to uncover his body, that the jury mllY see whether there be such a physical condition as·he has testified to,. The witness. may say, for instance, that he never was wounded ill the arm, and on cros&-examination .it would be competent to compel .him to lift up his sleeve, that the jury may see whether or no there 'was a scar or mark of wound on his arm.. In some recent cases, aHhoughthe JDatter has aou):lshave required plaintiffs in yersPnal
age cases to sUbmit themsel\'es to an examination of the witnesses of the defendant outside of the court-room, in order that their testimony might be given to the jury as to thephyeical condition; so the fact that the witness is called upon to do some physical act, or to make some exposure of his person, which supports or contradicts his direct testimony, is . not necessarily objection to its validity. Taking this question in either one of the two phases, as to whether the matter was connected with the subject-matter of the direct testimony, or whether in the act,-the physical act which he was called upon to do,-there was any invasion of his rights, I am clearly of the opinion there was no error in the ruling of the district court, and that the testimony was legitimate cross-examihation. The judgment of the district court will· be affirmed.
,(District Oourt, D.
Oarolina. September, 1887.)
Plaintift' was a witness in a case under recognizance, and also at the same time a grand juror. He was paid his per diem as such juror. Held, that he was only entitled to the per diem of a witness from the time he was discharged as grand juror. '
Thompson H.(Jooke, for petitioner.
SIMONTON, J. A. B. Turner was a witness in this case under recognizance. He was bound over by the government. He was also a g-rand juror, and served as such until the seventeenth of this month. He resides in Greenville, and has been paid his per diem as juror. He now claims per diem as a witness in this case from the first day of the term to his distlharge as a witness. It has been ruled in this court that a defendant, under recognizance, who has also been bound over as a witness for the government, is entitled to his per diem and mileage as such witness. The ground of that decision was that, inasmuch as the person so summoned as a witness owed no duty to the government in attending court as a defendant, if he were sumn'lOned by the government as a 'witness, he was entitled to per diem and mileage as a witness. In re Addis, 28 Fed. Rep. 794. This is a different question. The mileage and per diem are paid to reimburse the witness for expenses to which he was put by reason of the recognizance or subpcena which him here. But when he has already been brought to the court, and maintained here at the expense of the goverpment, this reason ceases. The whole practice and law of these courts of the United States are opposed to double pay for the same services. If.one who receives per diem and mileage as a juror, at the same time receives per diem as a witness, he would receive double pay for the
M'CLUNG V. STEEN.
:lame service. The /;lase of Edwarda v. Bond, 5 McLean, 300, decides that a juror can also receive pay as a witness. After careful consideration of the opinion in that case, I cannot agree with the learned judge. It is ordered that the applicant, A. B. Turner, be paid the per dieJTI of a witness from the time he was discharged as grand juror, and no longer.
and others v.
(Oircuit Oourt, D. Minne8ota.
PtmLIC LAl'lDB-WHEl'l· TITLE PASSES-QUITCLAIM.
On payment of the purchase price and issue of the receiver's final receipt, the full equitable title passes to the person who has entered the land, and this title he may convey by quitclaim prior to obtaining the patent. 1 As· against the grantee under an unrecorded quitclaim executed, after issue of fino1 receipt, by one who had entered the land under a warrant, a grantee under a subsequent quitclaim executed after patent issued takes no title. Where a deed is regular on its face and duly recorded. the burden of proof is on the party attacking it to show facts establishing its invalidity.
The fact that, at the time the grantor in a quitclaim deed executed it and left it with his agent for delivery, the name of the grantee and the amount of the consideration were not written in, does not render the deed void, where the agent had authority to fill out,the. blanks in a certain way and did so fill them out before the deed was delivered. In Wisconsin, where money or other securities of one person are used by another to purchase property in his own name. an implied trust arises in favor of the party with whose means the purchase is made. Where A. and B. are the only parties to a suit affecting the title to one of several tracts of land conveyed by a quitclaim, a judgment in that suit de· claring the deed to be void is. as to C. and D., neither of them privies with A. or B., simrly 1'ea inter alioa acta, and, in a suit by C. against D. to quiet title to another 0 the tracts covered by the quitclaim, is neither binding as rea adjudicata nor estoppel.
JUDGMENT-EFFECT ON THIRD PARTIES.
EVIDENCE-ANCIENT DEED-CONDITIONAL ADMISSION.
In a suit to quiet title the court intimated before the argument was closed that judgment would go for the plaintiff, The defendant thereupon moved to open the case and to introduce parol testimony to show that the deed under which plaintiff claimed title was in fact void. The deed in question was 36 years old, and the parties to it as well as those who were cugnizant of the circumstances of its execution were dead. Held, that it was competent for the court to impose, as a condition of the opening, that the defendant should con· sent to admit in evidence testimony of those who knew the facts about the execution taken in other cases and between different parties, and subjected to cross-examination therein. '
1 Where the right to a patent for land has become ve&ted in a purchaser, the government holds the legal title in trust for the pnrchaser anti,l the patent is issued. U. 8. v. Frevbelg, ante. 195. .