charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him. (Mar. 16, 1878, c. 37, 20 Stat. 30.)' 28 U.S.C.a.Section 732, now 18 U.S.C.A. § 3481.
The provision that defendant 'shall, at his own request but not otherwise, be a competent witness', does not make the competency of one defendant as a witness dependent on the consent of a co-defendant, and his testimony voluntarily given is admissible against his co-defendant. Rowan v. United States, 5 Cir., 281 F. 137, certiorari denied 260 U.S. 721, 43 S. Ct. 12, 67 L. Ed. 481.
I believe the provisions of the Act of Congress are personal to the defendant. Where counsel represents two defendants, and one desires to testify, it is the duty of the Court to receive the testimony even though the defendant's counsel advises him not to testify.
Barnes was allowed to testify in rebuttal under examination of government's counsel after the Court explained to him, out of hearing of the jury and in the presence of his counsel, as to his rights and privileges under the laws of the United States.
Barnes testified that on or about the 22nd day of September, 1947, he went to the farm of Johnson in the truck owned by Haynes, and after they arrived, the eight gallons of whiskey were secured from Johnson; that he then proceeded to Aliquippa, Pennsylvania, where he was subsequently arrested; and that he had been to see Johnson on one prior occasion with Haynes. He also contradicted Haynes' testimony in many material respects. Barnes was subjected to a grueling cross-examination by his own counsel.
The order of the reception of evidence lies largely within the discretion of the trial judge. The desire of defendant Barnes to testify was not known to the Court until after the government had closed its case. There was no way possible for Barnes to testify other than by rebuttal, since his attorney would not call him to the witness stand. I do not believe any prejudice arose from said order of proof. In my judgment, it would have been a miscarriage of justice, and the extension of a helping hand by the Court to defendant Haynes to clear himself of the criminal charges, if I had not permitted Barnes to testify. United States v. Montgomery, supra.
The order in which testimony is presented at a criminal trial is solely within the discretion of the trial judge. The Court is to be impartial to both the government and the accused. I would certainly have favored the accused Haynes if I had not permitted the testimony of Barnes. Courts must not shut out the truth but should endeavor to develop it.
I believe that a federal judge had the right and duty to facilitate by direct participation the orderly progress of a trial, and the permitting of queries, which is an aid in clarifying testimony, is proper if done in a nonprejudicial manner. Ocha v. United States, supra.
From a study of the record and a thorough consideration of the argument of counsel, I believe there was ample substantial testimony supporting no other reasonable hypothesis than that of the guilt of each of the defendants on all charges. The verdict of the jury is well sustained. Unless there was some error in the conduct of the trial, the verdict of the jury must stand.
It is the duty of the Court to make positive that each of the defendants was given a fair and impartial trial.
I conclude that there was no error in the conduct of the trial and that the defendants were properly convicted. It would be a miscarriage of justice to grant a new trial. On this date an order will be filed denying defendants' motion for arrest of judgment and/or a new trial.