fect its admissibility. See also Hartman vs. U. S., 168; Fed. 30.

This doctrine has been approved and followed by the Fedderal Courts, even though the property unlawfully or irregularly seized belonged to a third person, as was decided in U. S. vs. McHie et al. 196, Fed. 586. In that case District Judge Sanborn held that a Federal Court has power to impound books and papers, although the property of a third person and unlawfully and irregularly seized by officers of the government, where they are shown to be essential evidence in a criminal case.

In Hardesty et al. vs. U. S., 164; Fed. 420, the Circuit Court of Appeals for the Sixth Circuit decided in a per curiam opinion that it is no objection to the admissibility of evidence which is pertinent to the issue in a criminal case that it was obtained by means of a search warrant illegally issued or executed.

To the same effect was the decision of the Circuit Court of Appeals for the Ninth Circuit in Lum Yan vs. U. S., 193; Fed. 970, which determined that letters were not inadmissible against the accused because unlawfully seized by the authorities, where the search does not appear to have been seriously resisted.

§ 21a. Method for Recovering Illegally Secured Evidence. A party may, upon the filing of a proper motion setting forth the facts, secure from the court in which the cause is pending an order directing the prosecution to return to him such papers or evidence as was illegally secured.

Certain inspectors having accompanied a marshal to serve a warrant on defendants, arresting them for misuse of the mails in furtherance of a scheme to defraud, remained and searched their office and seized their books, papers, letters and documents, removing the same to their office, whence they were ordered delivered to the clerk of the court and sealed. Upon this state of facts, after a motion had been filed to have the papers returned, District Judge Pollack, in U. S. vs. Mounday et al. 208, Fed. 186, held that, the material having been secured as the result of an unconstitutional search and seizure, defendants were entitled to have the same returned to them, though such documents might contain incriminatory

evidence which the district attorney desired to submit to the grand jury and use against them.

When, however, there is an element of the voluntary surrender, no relief will be granted upon such an application, and this applies to oral testimony by one. Powers vs. Weeks vs. U. S., 232; U. S. 383; U. S. vs. Hart, 214; Fed. 655; same case 216; Fed. 374.

U. S., 223; U. S. 303.

In Weeks vs. U. S., 232; U. S., 383, cited above, the court held that while an incidental seizure of incriminating papers, made in the execution of a legal warrant, and their use as evidence, may be justified, and a collateral issue will not be raised to ascertain the source of competent evidence, Adams vs. N. Y., 192; U. S. 585, that rule does not justify the retention of letters seized in violation of the protection given by the Fourth Amendment where an application in the cause for their return has been made by the accused before trial.

Continuing, the court said in that cause that the court has power to deal with papers and documents in the possession of the district attorney and other officers of the court and to direct their return to the accused, if wrongfully seized, and where letters and papers of the accused were taken from his premises by an official of the United States, acting under color of office, but without any search warrant and in violation of the constitutional rights of accused under the fourth amendment, and a seasonable application for return of the letters and papers has been refused, and they are used in evidence over his objections, prejudicial error is committed and the judgment should be reversed.

§ 216. Production of Documents.-The constitutional guarantees protect the defendant in a criminal cause against involuntary disclosures or against unreasonable searches and seizures. In Schatz vs. Winton Motor Carriage Co., 197; Fed. 777, Circuit Judge Noyes held that the production of documents by the adverse party in actions at law in Federal Courts is governed by the Statutes of the United States, and under such statutes a court at law cannot compel a party in an action to produce documents in advance of the trial for the inspection of the other party, citing Carpenter vs. Winn, 221; U. S. 533.

ப

H

§ 22. Comments or Improper Argument of District Attorney. Too much care cannot be given by counsel to words they use in addressing the jury. Attorneys for the prosecution and the defense should be jealous indeed to guard themselves from remarks that are unsupported by the testimony, or that are individual opinions rather than legitimate deductions from the law and the evidence. One of the abuses of the modern practice is the proneness of the attorneys defending to express unbounded belief in the innocence of their client, even to the staking of personal reputation. Great censure also is due the prosecution for intemperate and immoderate expressions, due ofttimes to the vehemence of opposing counsel but never excused. The only remedy the prosecuting officer has against such unfair argument is to appeal to the trial judge. Defending counsel can save the point by bill of exception, and present the language of the prosecuting officer to the appellate court for review. Trial judges should, therefore, be extremely careful to enforce, by proper ruling, not prejudicial to the interests of the prosecution or the rights of the defandant, a fair argument, devoid of personal opinions, and as free from prejudicial and inciting statements as fair discussion will permit. In the case of Williams against the United States, 168 U. S., 382, the defendant was convicted of extortion in exacting money from Chinese immigrants for permission to land and remain in the United States. The defendant proposed to show by witnesses that while he was acting in such official position, there were more females sent back to China than ever were sent back before or after. The representative of the government objected to this evidence, as irrelevant, saying in open court, and presumably in the hearing of the jury: "No doubt every Chinese woman who did not pay Williams was sent back." The Supreme Court said: "The observation made by the prosecuting attorney was, under the circumstances, highly improper, and not having been withdrawn, and the objections to it being overruled by the Court, it tended to prejudice the rights of the accused to a fair and impartial trial."

In Hall against the United States, 150 U. S., 76, a judgment of the trial Court was reversed, because the District Attorney was permitted to make an argument, against the objection of the defendant, not based on evidence, which

tended to prejudice the jury against the defendant. See also People vs. Mull, 167 N. Y., 247. In the case of Lowdon against the United States, 149 Fed., 677, this question was raised: The attorneys for the defendant had insisted that six men could not return a verdict, nor could eleven; that it required twelve. The District Attorney, in answering that argument, said in substance that it was true that six could not return a verdict, nor could eleven, and, that, as matter of fact, it did take twelve; but that he would hate to be the obstinate juror, for fear when he returned home, his friends and neighbors, who possibly were not versed and familiar with the various technicalities and intricacies of the law might conclude that the jingle of the broken banker's unlawful and illy gotten gold in his pocket had influenced his action. The Court, in that case, held that the argument was improper, and said: "We would not embarrass free discussion, so essential to proper administration of the law. We would not regard many hasty but exaggerated expressions of attorneys made in the heat of debate, which are not expected to become factors in the formation of the verdict. We wish to follow established rules, and to avoid introducing another element of uncertainty in the trial of criminal cases by making a new precedent for the reversal of judgments. The difficulty of drawing a line between legitimate and improper arguments admonishes us that the trial judge often has a delicate and difficult task imposed on him; but, under the circumstances of this case, considering the character of argument, the refusal of the trial judge to interfere at the time the objection was interposed, or to correct the probable effect of the argument by a subsequent instruction, and because it does not appear affirmatively to us that no injury was done to the defendants, we are constrained to hold that the judgment should be reversed and a new trial granted. See also Allen vs. United States, 115 Fed., p. 4.

So, also, the District Attorney may not comment in argument upon the failure of the defendant to offer evidence of his previous good character. McKnight vs. United States, 97 Fed., 208; Bennet vs. State, 86 Ga., 401; Davis vs. State, 138 Ind., 11; Fletcher vs. State, 49 Ind., 124; Thompson vs. State, 92 Ga., 448; the People vs. Evans, 72 Mich., 367; Lowdon vs. U. S., 149 F., 677.

Neither can the defendant, by questions, be compelled to disclose evidence against himself, as, for instance, he cannot be asked to produce the original, else a certified copy will be permitted. McKnight vs. United States, 115 Fed., 972.

See U. S. vs. Snyder, 14 F., 554, where District Attorney comments on failure of defendant to testify in his own behalf. See also Dimmick vs. U. S., 121 Fed., 638. Also case of Latham et al vs. U. S. Circuit Court Appeals 5th Circuit, 226 Fed. p. 000, decided in October, 1915, reversed because District Attorney said, "if it had not been that a train was three hours late he would have produced another witness."

8 22a. Procedure When Improper Argument or Remarks are Made.-When the prosecuting officer has indulged in argument not supported by the record or makes use of unfair and prejudicial statements either in argument or in the examination of witnesses, or at any other time in the presence of the jury, the defense should at once object, and thereupon it becomes the duty of the court to instruct the jury not to consider what the prosecuting officer has said, and the remark or argument or statement should also be withdrawn by the prosecuting officer. If this course is not taken, the defense should except and preserve such exception by a proper bill. It is also a safe practice to request a special charge governing the occurrence and if such special charge is not given, to reserve a bill to that action of the court. Higgins vs. U. S., 185; Fed., 710; Donaldson vs. U. S., 208; Fed., 4: Stewart vs. U. S., 211; Fed., 41; Fish vs. U. S., 215; Fed., 545. Ammerman vs. U. S., 185; Fed., 1; Goodwin vs. U. S., 200; Fed., 123; Rogers vs. U. S., 214; Fed., 981; Carlisle vs. U. S., 194; Fed., 827. In the above cases will be found a number of illustrations as to what the court will and will not permit.

In Carlisle vs. U. S., 194; Fed., 827, the court said that the rule that a district attorney shall not refer in his argument to defendant's failure to testify in his own behalf does not prevent argument amounting only to a claim that the government had made out a prima facie case, which had not been contradicted.

In Ammerman vs. U. S., 185; Fed., 1, the court went further than I have ever known it to go when it held that