E v , 1075a, n 7 and cases cited CorporationS The same rule applies to cor- porationS Missouri Pac R Y Co v Kennett, Still less can any ad v erse inference arise where a party subsequently produces a present witness whose testimony he is said to ha v e attempted to suppresS 9 " It is for the jury, within the bounds of reason, to say what inferences, if an Y are to be drawn, under all the circumstances, from the failure of the parties respecti v ely to call the particular person as a witness in any gi v en cas E 91 Explanation Permitte DThe inference against spoliation, like e v ery real presumption or assumption of procedure, is rebuttabl E Either party is at liberty, so far as the inference affects him, to explain why an a v ailable and material witness, apparently helpful to a bona fide contention, was not call ed" 2 A party is always at liberty to show that the absence of missing witnesses is not caused by his fault and that he has made e v ery reasonable effort to pro- cure their attendanc E 91 * No ad v erse inference can properly be drawn where the facts co v ered by the testimony of the witness in question ha v e already been fully gi v en by other witnesses and the person not called could, therefore, ha v e furnished only corroborati v e 94 or cumulati v e 95 e v idence to an unnecessary degre E 96 Where a gi v en class of e v idence is made pri v ileged by statute, a sufficient explanation is deemed to ha v e been offerd and no ad v erse inference is said to arise from any non-production of the pri v ileged witnesS 97 So no ad v erse inference can be drawn where a party is pre v ented by the operation of some other rule of law 9lS from calling the particular " witness whose knowl- edge would be most conclusi v e on the matte r 92 People v Clark, 106 Cal 32, 39 Pac 53 96 Ellis v ! Sanford, 106 Iowa 743 75 X W (1895); Tuthill v Belt Ry Co of Chicag O 660 (1898): Higman v Stew art 38 Mich 145 111 App 50 (1908) ; State v Brannum, 513 (1878) ; Meagley v Hoyt, 125 X Y 771, 95 Mo 19, 8 S v v 218 (1888) : 2 Chamb, 2(5 X E 719 (1S01) : 2 Cham B E v , 1075c, E v , 1075c, N 1, and cases cite D N 5, and cases cite D93 State v Hotran, 67 Conn 581 35 Atl 97 Arnold v City of Mary v ille, 110 Mo 508 (1S96): Reehil v Fraas, supra ; State v App 254, 85 S W 107 I 1905 I See al So Ogde N 39 O r 195 65 Pac 449 (1901); 2 Baldwin v Brooklyn Heights R Co, 91 X Chamb, E v 1075c, n 2 and cases cited v Supp 59 00 App Di v 496 M004 ) But It has e v en been held that on a second trial while no inference, strictly speaking, may of a cause, it is proper to admit testimony arise in such cases it will be difficult to pre- accounting for the failure of a witness to v ent the jury so far as the party could ha v e testify at first triaL McDonald v City Elec- called a witness, from drawing such delibera- tric Ry Co, 144 Mich 379, 13 Detroit Leg ti v e deductions from his course as they deem X 252, 108 X W 85 (1906) On the con- warrante DKirkpatrick v Allemannia Fire trary, it has been held that a party was not Ins Co 92 X Y Supp 466, 102 App Di v at liberty to introduce e v idence accounting 327 (1905 ) for the absence of a particular witnesS Gil- 98 Cartier v Troy Lumber Co 138 TiL him v Xew York, etc, Co (Te X Ci v App 533, 28 X E 932 14 L R A 470 (1891 ) 1903), 76 S W232 99 Adams v Main, 3 Ind App 232, 29 Equity CauseS The inference against spoliation from failure to call a material witness operates in equity as at la W 1 Admiralty Xuits may exemplify the operation of the same deliberati v e inferenc E 2 Criminal CaseS In criminal cases the same principles of reasoning ap- pl Y Failure by the defendant to call a material witness who has important knowledge gi v es rise to an ad v erse inference of fact ' which is strong in pro- portion to the extent to which it would be reasonable to expect that he would produce the witness, if fa v orable to him, rather than lea v e it for the prosecution to do So 4 The force of the inference is much affected where the witness in question is one naturally connected with the prosecution 5 e g, is the president of a prosecuting corporatio N The same inference operates against the prose- cution, under similar circumstanceS 7 Suppression of E v idence in general is, in criminal, as in ci v il cases, usually cogent circumstanctial e v idence of guil T 8 436 [Onmia Contra SpoliatoremJ ; Failure to Testif Y 9 Where a part v de- clines to submit to an order U( or request lx for a physical examination, 12 to appear in court on the trial of his cause, 13 or to testify aS a witness, 14 on his N E 7 ( J2, ;>0 Am St Rep 206 (1801); Carter v Beale, 44 X H 408 (1862 ) A party' may forestall the inference from sup- pression by.

Explaining, as part of his own case, why an important piece of e v idence, eg , the testimony of an eye witness, was not produce DMacon R Y & Light Co v Mason, 123 O A 773, 51 S E 569 (11)05) 1 Eckel v Eckel, 49 X J Eq 587 (1892) ; Hall v v anderpooL 156 Pa 1 v 2 (1893): '2 Chamb, E v , 1075d, N I, and cases cite D2 The v ille de Ha v re, 7 Be N ( U S) 328 (1874 ) 3 State v Cousins, 58 Iowa 250, 12 X W 281 (1882) ; People v Hendrickson, 53 Mich 525, 19 X W 169 (1884); People v Ho v ey, 92 N Y 554 (1883) : CoM v McMaho N 14', Pa 413, 22 Atl 971 (1891) : 2 Chamb E v , 1075e, N 1 and rases cite D 5 See, howe v er, Clifton v State, 46 Te X CriM 18, 79 S W824 (1904 ) 6 People v McGo v er N 94 X Y Supp 662 105 App Di v 296 (1905), it is error, under sujch circumstances, to instruct the jury that they may draw any presumption in fa v or of the prosecution from defendant's failure to call the president as a witnesS 7 State v Buckman, 74 v t 309, 52 Atl 427 (1901): State v Smith, 71 v t 331, f Atl 219 (1899 ) 8 For example, that a defendant, on his arrest, made away with the note alleged to ha v e been forged [State v Chamberlain, 89 Mo 129 (1886)], or offered to destroy cer- tain articles furnishing incriminating e v i- dence of barratry (Phoenix Ins Co v Moog, 78 Al A 284, 307 (1884) do not differ, in any essential particular, from other facts cir- cumstantially tending to establish guil T 9 2 Chamberlayne, E v idence, 1076- 10761) 10 Austin, etc, r Co v Chic K 97 Te X 172, "7 S \ v 403 (1903), re v g (Ci v App 1903), 73 S W 569 11 Gul F etc R Y Co v Booth (Te X Ci v App 1906 ) 97 S W 128 See Pennsyl v ania K Co v Durkee, 147 Fed 99 78 C C A 107 (1906) 12 See E v IDENCE BY PERCEPTION, infra, 1131 et seq Austin, etc, r Co v Cluck, supra.

The same rule applies to Ihe examination of a minor chil DHouston Elec- tric Co v Lawson (Te X Ci v App 1904), 85 S W450 13 Cole v Lake Shore, etc K, Co, 9T Mich 77, 54 X \ Y 638 (1893) : Johnston v McKenna, 76 X J Eq 217, 74 Atl 284 (1909) : Brown v Shoc K 77 Pa 471 (18751 14 Central Stock, etc, Exch v Chicaf" Bd of Trade, 196 111 396, 63 X E 74<> (1902) ; Kelley v City of Boston, 201 Mass 86, 87 X T E 494 (1909) : Cole v Lake Sh Ore etc r Co, 95 Mich 77, 54 N W 63^' (1893); Connecticut Mu T L TnS Co v Smith 117 Mo 201 22 S W628 38 Am St own behalf iu a suit as to which he himself is possessed of material knowledge, 15 an ad v erse inference of suppression naturally ariseS 16 Effect of Inferenc E As has been said, 17 the iufirmati v e inferences against the defendant from his failure to testify do not create independent facts in fa v or of the contention of the opposing party 18 but when that side definitely asserts the existence of a fact which the suppressing party could readily dis- pro v e, if it were false, such e v idence as can be produced in fa v or of the con- tention made will be judged in connection with the circumstance of the sup- pressio N 10 (.

'riminal CaseS While it is frequently pro v ided by statute that no in- ference shall be drawn against one accused of crime because he does not take the stand as a witness in his own behalf, 20 and although courts ha v e charged juries to the same etf'ect, 21 the precept is one with which it is practically im- possible for the jury to compl Y If the situation under which a defendant fails to take the stand is such that a logical conclusion arises of conscious inability to gain by so doing, an infirmati v e inference must be drawn against him by any tribunal using reason as its means for ascertaining truth.

22 437 [Omnia Contra Spoliatorem] ; Remo v al or Concealmen T A party may suppress the e v idence of witnesses in other wayS He may, for example, ar- range that the witness shall not be within the reach of a subpoena or other compulsory process, when his attendance is desired, by concealing him or by forcing or inducing 23 him to lea v e the neighborhood, county, state or countr Y 15 Bastrop State I'.