1. It is not a regular mode of assisting the recollection of a witness to recur to his recollection of his testimony before the grand jury. If.it was not true then, it is not true now; if it was time then, it is true now, and can be testified to as a fact. Of what importance is the fact that he had a memorandum to aid him in testifying before the grand jury? To ask what he testified to before the grand jury has no tendency to refresh his memory. The fact of his having testified to it then is not testimony now. It is an attempt to substitute former for present testimony.
2. As to evidence of sales of which there was no evidence before the grand jury, there can be no doubt that the instruction was right. Here the issue is whether the defendant is a common seller. Suppose his shop is in a large street, and a hundred people go in and each buys liquor; must the government call the whole hundred before the grand jury, in order to call them before the jury of trials ? Exceptions sustained.