tion was made that those parts of the transcript dealing with this question be read to the jury. After a lengthy discussion during which government counsel expressed his opposition, the judge finally decided that he would have the portion of the transcript read which, we now know, showed that “Sarge” was, at the time of the alleged offenses, a paid government informer.
By the time the decision had been reached to let the jury have the information, that body had given notice that it had reached a verdict. In answer to a question from the judge, the foreman declared that they no longer had need of an answer to their earlier question. The verdict of guilty was thereupon returned.
The point of the jury’s question was highly relevant. The court had just explained what entrapment was and on the matter of entrapment the question whether “Sarge” was a government employee was certainly something to be considered. In view of the circumstances present in this case, we think that the failure to permit the reading of the relevant testimony at a time when it would have been useful in the jury’s deliberations created unfairness to the defendant.
That the jury may be given information upon what a witness has said if it is possible to furnish it is well settled. See Annotation 1956, 50 A.L.R. 2d 176, 180. Usually the matter rests in the discretion of the court, United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, 598-599; United States v. Carminati, 2 Cir., 1957, 247 F.2d 640, 646; United States v. Campbell, D.C.N.D.Iowa 1956, 138 F.Supp. 344, but in this particular situation we think the defendant was entitled to have the jury informed as a matter of right. See Annotation 1956, 50 A.L.R.2d 176, 185 ;1 cf. Henry v. United States, 6 Cir., 1953, 204 F.2d 817, 819 (reversal for permitting the repetition of testimony).
The second question raised has to do with the refusal of the trial judge to allow defendant’s counsel in summation to comment upon the fact that the Government did not call “Sarge” as a witness. He was not so called, why the record does not disclose. When counsel started to comment upon the point, the prosecuting attorney objected. The judge concluded that this witness was equally accessible to each party and, therefore, did not permit the comment. The Government does not object to the general rule as quoted from Graves v. United States, 1893, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 :2
“The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.”
But it relies upon the often repeated exception to the rule and supports the district court’s decision that this witness was equally available to either side.3 23 The witness, it is claimed, had been in the court room for at least a portion of the trial. And it is said that the defendant who had admitted knowing “Sarge” could easily have found him had he wanted to do so.
This argument misses the point. Although the Government concedes that the question is not one of mere physical accessibility, the argument made in effect denies the admission. In this case it is pretty clear that the informer, whose connection with the alleged sales were testified to by the main Government witness, was an important part of the building up of the case, in which the defendant’s conviction occurred. The chief
1
This annotation is an excellent general survey of the cases dealing with the right to have the reporter’s notes read to the Jury.
2
See also McCormick, Evidence 533-534 (1934); 1 Wharton, Criminal Evidence 263 (12th ed., Anderson, 1955); United States v. Lowe, 3 Cir., 1956, 234 E.2d 919, 923.
3
See 1 Wharion, op.
cit. supra note 2, at 26.3-269; 2 Wigmore, Evidence 169-170 (3d Ed. 1940).