This is аn appeal from a judgment upon a verdict of guilty in a prosecution for removal and concealment of distilled spirits upon which the tax had not been paid, in violation of the provisions of the internal revenuе laws. The facts were that defendant and his wife owned jointly a building in which they lived and a part of which they used for cоnducting a restaurant and grocery store. State officers made a search of this building and found ■eight pints of moonshine whiskey concealed in an old ice box in an unfinished bath room. Defendant had the key to this room, and he аnd his wife were present when the whiskey was discovered by the ■officers. While denying ownership of the whiskey, defendant stated to the officers who arrested him that he did not intend to fight the case.
The trial judge excluded evidence of declarations by defendant’s wife to the witness Lillie Bledsoe to the effect that the whiskey belonged to her and not the defendant and also testimony to like effect given by the wife at the hearing of defendant before the United States Commissioner. There was testimony that the wife was ill and unable to be present at the time of the trial, but thе evidence, was that her illness was of temporary character and there was no motion to continue the cause so that she might be present and testify. There was no motion for directed verdict or other chаllenge to the sufficiency of the evidence offered by the government until after verdict, when motion was madе for a new trial. The assignments of error are that the court erred in excluding the declarations of the wife to the witness Bledsoe and her testimony given upon the hearing before the Commissioner and that the verdict was without evidence to support it.
Little need be said as to the sufficiency of the evidence. It is too well settled in this court to justify discussion that a motion to set aside a verdict and grant a new trial is addressed to the sound discretion оf the trial judge, and that the denial of such motion affords no basis for review on appeal. We have power, of course, to notice plain error which would result in a patent miscarriage of justice, even though the appellant may not properly have preserved in the lower court his right to review it; but no casе is presented here for the exercise of such power. The whiskey was found concealed on the premises of defendant and his wife in a room to which defendant had a key. The circumstances were of a character calling for explanation by the defendant, and his explanation was not acceptеd by the jury to whom he made it. We manifestly could not say in such situation that their action was unsupported by the evidenсe.
The testimony of the witness Lillie Bledsoe to the effect that defendant’s wife had told her that the whiskey found by the оfficers belonged to her was properly excluded as hearsay. Apart from the fact, as we shall hereafter more fully point out, that no sufficient showing was made that the wife was not available as a witness, the rule in the federal courts clearly excludes such extrajudicial declarations. Donnelly v. United States
-Different principles apply with respect to the admission of the testimony given before the Commissioner. This testimony was given under oath and the witness was .subject .to cross exаmination. It was not, therefore, an extrajudicial declaration but falls within the class of testimony given upon a fоrmer trial or hearing, which is admissible if it be sufficiently shown that the presence of the witness cannot be secured. Mattox v. United States
Testimony of this character is admitted only because the witness cannot be produced; and it should not be admitted where the presence of the witness at the trial of the cause might be had by the exercise of due diligence. The reason for the exclusion of the testimony, here is thus stated in the record: “The action of the court being based on -the ground that Nettie Smith was alive and no sufficient reason was given why her testimony should not be given in person rather than by hearsay. That while it appeared from thе testimony of Dr. Handy that Nettie Smith was, at the time of this trial, in such condition as not to be available as a witness, it likewisе appeared that Dr. Handy considered this condition as temporary. That the said Nettie Smith had not been subpoenaed as a witness and no motion had been made for a continuance of the case beсause of her illness and until she could testify.” The sufficiency of the showing of facts making the former testimony admissible is a mаtter addréssed very largely to the discretion of the trial judge. State. v. Budge,
There was no error and the judgment appealed from will be affirmed.
Affirmed.