case is in one sense a trial at common law. Nevertheless, this enactment has no application to criminal prosecutions.

99. State Statutes Cannot Control Rules of Evidence in Criminal Cases in Federal Courts. Before its adoption two men were jointly indicted in the Circuit Court of the United States for the Eastern District of Virginia, for murder on the high seas. By permission of the Court they were tried separately. One of them called the other as a witness in his behalf. A statute of Virginia adopted in 1849 and in force at the time of the trial, provided that no person not jointly tried with the defendant should be incompe tent to testify in any prosecution by reason of interest in the subject-matter thereof. Congress had declared that the laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, should be regarded as rules of decision in trials at common law in the Courts of the United States. The Supreme Court, speaking through CHIEF JUSTICE TANEY, said:

"It could not be supposed *** that Congress intended to give to the States the power of prescribing the rules of evidence in trials for offenses against the United States. For this construction would in effect place the criminal jurisprudence of one sovereignty under the control of another. *** Neither could the Court look altogether to the rules of the English common law as it existed at the time of the settlement of this country. * * * Nor is there any Act of Congress prescribing in express words the rule by which the Courts of the United States are to be governed in the admission of testimony in criminal cases. But we think it may be found with sufficient certainty, not indeed in direct terms, but by necessary implication, in the Acts of 1789 and 1790, establishing the Courts of the United States and providing for the punishment of certain offenses. And the law by which, in the opinion of this Court, the admissibility of testimony in criminal cases must be determined is the law of the State as it was when the Courts of the United States were established by the Judiciary

Act of 1789. *** But no law of a State made since 1789 can effect the mode of proceeding or the rules of evidence in criminal cases."1

It was accordingly held that the testimony of the co-defendant was properly rejected..

In 1887 one Logan, in the United States Circuit Court for the Northern District of Texas, was put on his trial for conspiracy and for murder. The Act of 1862 had been for many years in force. It was then embodied in section 858 of the Revised Statutes. The Government offered as a witness a person who had been convicted of felony in a North Carolina State Court. He had never been pardoned. Against the objection of the defendant he was permitted to testify. Texas became an independent Republic in 1836. Its Congress adopted the common law of England as to evidence. It was admitted into the Union in 1845. Since 1858 its laws have declared that anyone convicted of felony within it or in any other jurisdiction should, unless pardoned, be incompetent to testify in criminal trials. The Supreme Court held that no one of the Acts then consolidated in section 858 of the Revised Statutes had changed the rules which in Reid's Case it had laid down as to evidence in criminal cases in the Federal Courts. The common law was in force in Texas when it was admitted into the Union. By that law a conviction in another State had no effect by way of penalty or of personal disability or disqualification beyond the limits of the State in which the judgment was rendered. It followed that the trial Court had not erred in allowing the witness to testify.2

100. Congress May Change Rules of Evidence in the Federal Courts.-Congress may at any time alter the rules of evidence governing trials in the Federal Courts. It has from time to time done so. It has made the accused a competent witness. His failure to take the stand does not create any presumption against him; and the prosecuting counsel may not comment upon it.

1 United States vs. Reid, 12 How, 361. Logan vs. United States, 144 U. S. 298.

101. In Criminal Cases in Federal Courts Husbands or Wives Are Not Competent Witnesses for or Against Each Other.-In the Federal Courts the common law rule which, with certain carefully limited exceptions, rendered a husband incompetent to testify in a criminal case either for or against his wife, and the wife either for or against her husband, still remains in force.1 Congress, it is true, has provided that in certain kinds of prosecutions, such as for bigamy, polygamy and unlawful cohabitation, the lawful husband or wife of the accused shall be a competent witness. Ir the State Courts of Maryland a husband or wife may testify for or against the other, but they will not be permitted to disclose cor fidential communications. In criminal trials in the Urited States Courts they are not, as a rule, permitted to testify at all.

102. No Person Disqualified as a Witness by Reason of Race, Color or Previous Condition of Servitude.By statute all disqualifications on the ground of color, race or previous condition of servitude have been removed.

103. In Federal Criminal Cases Rules Governing Competency of Witnesses, Except When Changed by Congress, Same as in the State When Admitted to the Union. With the exceptions above stated, the rules governing the competency of witnesses in criminal cases in the United States Courts sitting in any particular State are those rules which existed in that State in 1789, or at the subsequent date at which it was admitted to the Union. only important difference between the rules as to the competency of witnesses in criminal cases applied in the Federal Courts and in the State Courts of Maryland is that, as already stated, in the Federal Courts in criminal cases husbands or wives are ordinarily incompetent to testify for or against the other.

1 Cohen vs. United States, 214 Fed. 29.

The

104. Evidence Admissible in Cases of Disputed Handwriting. The rules governing the admissibility of evidence in criminal trials in the Federal Courts and in the State Courts of Maryland are substantially the same. The one exception of importance to this general statement has been recently removed by Congress.

Formerly, in the Federal Courts, the genuineness of a disputed handwriting could not be determined by a comparison of it with other handwriting of the party, unless the paper admitted to be in his handwriting, or to have been physically subscribed by him, was in evidence for some other purpose in the cause. If it was, it might be compared by the jury with the disputed writing. This comparison could be made either with or without the aid of expert witnesses.1

In Maryland, as in most of the States, this common law rule was years ago changed by statute. Section 7 of Article 35 of the Code of Public General Laws provides that comparison of a disputed writing with any writing proved to the satisfaction of the Court to be genuine, shall be permitted to be made by witnesses, and such writing and the evidence of witnesses respecting the same may be submitted to the Court and jury, or to the Court, as the case may be, as evidence of the genuineness of the writing in dispute.

The Act of Congress of February 26 1913,2 declares that any admitted or proved handwriting of a person by whom the disputed writing is alleged to have been written shall be competent for comparison by witnesses, judge or jury.

105. All Who Take Part in Violating a Federal Law Are Principal Offenders.-All who participate in a violation of a Federal law are principals. Section 332 of the Penal Code provides that whoever directly commits any ac constituting an offense defined in any law of the United States, or aids, abets, conceals, commands, induces or procures its commission, is a principal. The common law rule governing the participants in the commission of misdemeanors has.

Hickory vs United States, 151 U. S. 305 237 Stat. 683.

therefore, been extended by Congress to all those who are in anywise concerned in the commission of a felony.

106. In Criminal Trials in the Federal Courts Juries Are Not Judges of the Law.-After the evidence is all in, it becomes necessary to determine what the applicable law is. In Maryland and in some other States, the jury in criminal cases are the judges both of the law and the facts. In the Federal Courts this is not so. In both civil and criminal cases the judge instructs the jury as to what the law is. It is his duty so to do. It is their duty to accept the law as he declares it to be. This duty is however, a moral one only. It may be that the facts in the case are practically undisputed. They may make out a clear case of guilt. The judge, however, cannot instruct the jury to find a verdict of guilty. He cannot set aside a verdict of not guilty if they return it. A person who has been once put in jeopardy cannot for the same offense be again tried, unless the first verdict is set aside at his instance.

In spite of the fact that a jury may ignore the instructions, the power to instruct is of great importance. In the overwhelming majority of cases juries accept the law as the Court declares it.

In Sparf vs. United States1 JUSTICE HARLAN for the majority of the Court, and JUSTICE GRAY for the minority, brought a wealth of historical and legal learning to the discussion of the relation in criminal cases of the jury to the Court. The case will richly repay careful reading.

107. A Federal Judge May Comment Upon the Facts. A Judge of the Federal Court may also review the facts of the case. He may make such a charge as an English judge may and does. The Federal judges habitually charge their juries even in criminal cases and in so charging review the facts more or less elaborately. They can comment on the evidence as they see fit provided they do not do so in an

1156 U. S. 51.