THE UNIVERSITY OF CHICAGO LAW REVIEW

issuance of process to require the attendance of witnesses within the state.? It is therefore difficult to see why it should invalidate the provision of the uniform act. The activities condemned as "unreasonable searches and seizures" are usually those which compel a person to give evidence against himself.'8 Compulsory testimony which, when given before a court which has jurisdiction of the witness, is not for any reason an "un- reasonable search and seizure" should not be deemed such when the witness is com- pelled to testify outside the state. Another ground assigned for the invalidity of the statute is the violation of the right to free ingress and egress to and from the several states guaranteed by the privileges and immunities clause of the Fourteenth Amendment of the Federal Constitution.'9 The witness is made to leave the state against his will and to go into another state when he does not wish to. His privilege of going into any other state he desires is denied him. If compulsory egress in the interest of the administration of justice does deny the witness free egress and ingress into the state of his choice, it nevertheless is not an un- justifiable restraint. Every citizen attending a trial within the state is, to the same extent, temporarily deprived of his right to leave the state at his will. The right of free egress is suspended in favor of the paramount obligation of the individual to con- tribute to the administration of justice. The last objection made is that the act deprives the witness of his liberty without due process of law. The witness here, however, is afforded the protection of due process to a greater extent than he would be if he were forced to testify within the state.'0 He is given an opportunity to be heard as to the materiality of his testimony and as to his objections to the compulsory order before the subpoena issues. He will be com- pelled to attend only if it will not cause undue hardship and if the laws of the state in which the prosecution or inquiry is pending and the states through which he must pass in traveling will protect him from service of civil or criminal process. Finally, he is fully reimbursedl and need travel no more than iooo miles.

Evidence-Hearsay-Admssibility of Docket of Justice of Peace-[Idaho].-The defendant was charged with violating an Idaho statute' by writing a check with intent to defraud. At the hearing before a justice of the peace, the defendant admitted writ- ing the check. The justice thereupon entered a plea of guilty and sentenced the de- fendant to ninety days in jail. Upon appeal to the district court under a statute' au- 17Flint v. Stone-Tracy Co., 220 U.S. 107 (1gI). iBoyd v. United States, i6 U.S. 616, 633 (1886); Rottschaefer, Constitutional Law 743, 746 (1939). '9 William v. Fears, 179 U.S. 270 (I9OO); Slaughter-House Cases, i6 Wall. (U.S.) 36, 75 (1872); see Hague v. CIO, 307 U.S. 496, 521 n. 1 (1938); cf. Crandall v. Nevada, 6 Wall. (U.S.) 35 (r867). Lien, Privileges and Immunities of Citizens of the United States 8o (i9x3). 20Cf. Rest., Conflict of Laws §94 (1934); 4 Pomeroy, Equity jurisprudence § 1437 (4th ed. 1919). 21Compare the ten cents per mile and five dollars a day provided by the uniform act with the five cents per mile and one dollar a day provided for witnesses within the state by Ill. Rev. Stat. (1939) c. 53, § 65. 'Idaho Code Ann. (1932) § i7-39o8. 2Ibid., § i9-4o42. RECENT CASES

thorizing trial de novo, the state introduced in evidence a copy of the justice's court docket as a confession of guilt. The defendant's counsel failed to object to introduc- tion of the docket or the method of its authentication, or to attempt to explain the cir- cunstances surrounding the plea of guilty. Subsequently the defendant testified that he had not actually pleaded guilty to the charge. He claimed, rather, that after ad- mitting having written the check, he had attempted to deny the fraudulent intent, only to be silenced by the justice, who recorded a plea of guilty. The jury found the defendant guilty of the misdemeanor charged, and he was sentenced to six months in jail. On appeal to the Supreme Court of Idaho the judgment of the district court was affirmed, two justices dissenting. State v. Sedam.3 Although no objection was made by defendant's counsel to the introduction of the docket as a confession of guilt, the dissenting opinions raise the problems of the ad- missibility, conclusiveness, and methods of authentication of such dockets. The docket of a justice of the peace is usually admissible to evidence the proceedings in his court. 4 The justice is under a dutys statutory in this case,6 to keep a docket of the cases before his court, and the presumption favors the veracity of such dockets.7 These dockets are, therefore, within the scope of the "official document" exception to the hearsay rule.8 In this case, however, the court might have hesitated to admit the docket had the defendant's counsel made proper objection.9 Counsel could have contested whether the defendant had in fact pleaded guilty and have claimed that the prejudice resulting from the admission would over-balance the evidential weight.' o Very probably the court would have ruled that the prejudice could be dissipated by permitting the de- fendant to explain away the admission, for the docket is not conclusive." The courts take judicial notice that justices of the peace are, for the most part, not learned in the law.2 Counsel could then, even assuming that the defendant did not deny his former plea of guilty, have contended that his subsequent plea of not guilty acted to withdraw it."s The majority of courts do not permit the prosecution to mention a former plea of guilty which has been withdrawn, for the effect of the reference upon the jury would negate the privilege of withdrawal.X4

3 107 P. (2d) io65 (Idaho i94o). 4 Sykes v. State, i57 Miss. 6oo, 128 So. 753 (1930). s 5 Wigmore, Evidence § 1633 (3d ed. 194o); 9 Wigmore, Evidence § 245o (3d ed. i94o). 6Idaho Code Ann. (1932) § 19-4004.

7Cf. Chesapeake & Delaware Canal Co. v. United States, 24o Fed. 903 (C.C.A. 3d 1917). 8 5 Wigmore, Evidence §§ 163o-33 (3d ed. i94o).

9 Moore v. State, 51 Ark. 130, 10 S.W. 22 (x888); State v. Bryan, 4 Iowa 349 (1856); 4 Wigmore, Evidence §§ r325-28 (3d ed. i94o). 10 For a competent but contentious discussion of this point and apparently a unique and original treatment thereof, see James, The Role of Hearsay in a Rational Scheme of Evidence, 34 Ill. L. Rev. 788 (1940). "9 Wigmore, Evidence § 2450 (3d ed. i94o). 12 Burris v. Davis, 46 Ariz. 127, 46 P. (2d) 1084 (x935). '3 See State v. Stafford, 26 Idaho 38r, 387, 143 Pac. 528, 530 (i914); State v. Ashman, 112 Conn. 599, 153 Atl. 654 (1931); Ex parte Jones, 128 Tex. Cr. Rep. 38o, 382, 81 S.W. (2d) 7o6, 707 (1935). '4 Kercheval v. United States, 274 U.S. 220 (1927); State v. Hook, r74 Minn. 590, 219 N.W. 926 (1928); People v. Ryan, 82 Cal. 617, 23 Pac. 121 (1890). THE UNIVERSITY OF CHICAGO LAW REVIEW

Had the defendant's counsel made proper objection and had the court ruled the plea of guilty inadmissible, the prosecution could have introduced testimony as to the defendant's statements before the justice.1S The statement of the defendant that he wrote the check would be let in as an admission,' 6 which the defendant could have explained." The prosecutor's burden, however, is increased if the docket itself is not admissible; in the present case the justice of the peace could not be called, having died pending suit in the district court. But since the defendant's counsel did not object to the admission of the docket it seems that the defendant waived his right to keep the plea of guilty from the jury. 8 The prejudicial effect of this evidence is not so great that an appellate court will hold that the trial court should have excluded it on its own motion and that failure to do so constitutes reversible error."9 That failure to exclude such evidence does not result in an unfair trial is borne out by the fact that some courts allow the introduction of a withdrawn plea of guilty.20 The docket, a copy of which was introduced by the state, was not signed by the justice of the peace who heard the case. The authenticity of the copy was certified by his successor in office, but no one certified the accuracy of the original. There being no clerk of court, it would seem that only the presiding justice could certify that the record faithfully represented that which actually occurred before him." Lacking such certification, the docket was inadmissible hearsay,'2 and the copy was secondary hear- say, likewise inadmissible. But since no objection to its admission was made, the de- fendant waived the right to have the evidence excluded.23 Admission without objec- tion does not constitute reversible error.24

Federal Courts-Procedure-Jurisdiction of Federal Courts to Render Declaratory Judgments in State Tax Cases-[Federal].-The plaintiff, a taxpayer, sued in a fed- eral district court to obtain a declaratory judgment that the Wyoming Emergency Sales Tax Act of 1935' and Use Tax Act of 19372 were unconstitutional. The state con-

'5 Any person present in the justice's court could testify as to what occurred therein, and this method of proving the defendant's statements before the justice would have given the de- fendant an opportunity to cross-examine the witness giving the testimony. 64 Wigmore, Evidence § 1059 (3d ed. 294o). 7TIbid.; Commonwealth v. Bennett, iio Pa. Super. 3o3, i68 AUt. 499 (z933); Yeska v. Swendrzynski, 133 Wis. 475, 113 N.W. 959 (1907). is 1 Wigmore, Evidence § i8 (3d ed. 1946); see Diaz v. United States, 223 U.S. 442, 450 (1912). 9 See and compare the following with the present case: People v. Dean, 253 Mich. 434, 235 N.W. 211 (i931) (evidence of similar acts); State v. Fixley, xi8 Kan. I, 233 Pac. 796 (1925) (evidence of bloodhound's trail); Perara v. United States, 235 Fed. 5,5 (C.C.A. 8th i916) (judge's comment on character evidence). 20 People v. Steinmetz, 24o N.Y. 411, 148 N.E. 597 (1925); State v. Carta, go Conn. 79, 96 At. 41x (2926). "'7Wigmore, Evidence § 2164 (3d ed. 1940). -Moore v. State, 51 Ark. i3o, 10 S.W. 22 (i888); Bridge v. Branam, 133 Ind. 488, 33 N.E. 271 (1893).

23Note i8 supra. 24 Note x8 supra. 'Wyo. L. 74 (I935) 2 Wyo. L. 118 (1937).