129 F. 689 | 8th Cir. | 1904
Lead Opinion
delivered the opinion of the court.
This is a criminal action which was brought by the United States against Letson Balliet for an alleged violation of section 5480 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3696]. As no questions are raised in this court respecting the sufficiency of the indictment, it will suffice to say, generally, that two indictments were found against Eetson Balliet, the plaintiff in error, which were subsequently consolidated for trial; that the indictments charged, in substance, that Eetson Balliet, the plaintiff in error, had devised a scheme and artifice to defraud certain persons, which was to be consummated by opening correspondence with them by means of the United States mail; that his scheme was to pretend that he was the owner of the White Swan Gold Mine, located at Baker City, in the state of Oregon, and to induce persons to subscribe and pay for stock in said mines by false representations as to the richness, value, condition, and output of the mines, with intent to convert the money so obtained from the sale of stock to his own use; and that in furtherance of such scheme he deposited various letters, circulars, newspapers, etc., in the mail, which were addressed to certain persons, all of which contained various false representations concerning the value and condition of the mines, that were known to him at the time to be untrue. The trial of the consolidated indictments resulted in the production of a great mass of evidence, oral and written, which tended to support the charge, and on the strength of which the accused was ultimately convicted.
In this court the accused seeks to obtain a reversal of the judgment below, because the names of certain witnesses who were allowed to testify in behalf of the government were not indorsed on the indictments prior to the trial, and because no notice was served upon the accused, in advance of the trial, that such persons would be produced as witnesses against him, also because incompetent testimony was introduced during the progress of the trial, and because the jury were misdirected. The record discloses that, by an order made by the District Court of the United States for the Southern District of Iowa in June, 1859, certain chapters of the Code of Iowa, relating to grand jurors and criminal procedure, were adopted and put in force in that District. Two sections of the local statute, which are now sections 5276 and 5373 of the Code of Iowa of 1897, that were so adopted and put in force, in substance, require the names of all witnesses on whose evidence an indictment is found to be indorsed thereon before it is presented in court, and also provide that the county attorney, in offering evidence in support of an indictment, shall not be permitted to introduce any witness who was not examined before a committing magistrate or the grand jury, and the minutes of whose testimony was not presented with the indictment, to the court, unless he shall have given the accused, at least four days before the commencement of the trial, a notice in writing stating the name, place of residence, and occupation of such witness, and the substance of what he expects to prove by him on the trial. It further appears that from and after the promulgation of the aforesaid rule, and up to the year 1893, it was the uniform practice in the federal courts for the Southern District of Iowa to indorse upon indictments found in those courts the names of witnesses who had testified before
In view of these facts, we conclude that the judgment below should not be reversed because some witnesses were allowed to testify on behalf of the United States whose names were not indorsed on the indictments, although no notice was given to the accused that such witnesses would be produced. Except when a person is indicted for treason or some capital offense (vide section 1033, Rev. St. U. S. [U. S. Comp. St. 1901, p. 722]), there is no provision found in the federal statutes requiring the accused in a criminal action to be furnished with a list of the witnesses who will be produced against him, or requiring the names of witnesses to be indorsed on the indictment; and the fact that a special provision is made for advising the accused of the names of witnesses who will be produced on trials for treason and other capital offenses warrants the inference that in prosecutions for other offenses against the laws of the United States it is unnecessary to advise the accused of the names of witnesses who will be sworn.' The maxim, “Expressio unius est exclusio alterius,” clearly applies. By virtue of section 1033 [page 722], supra, a person indicted for treason or a capital offense is entitled to be furnished with a list of witnesses to be produced, three days before the trial on an indictment for treason and two days before the trial in other capital cases, and, if the accused seasonably claims this right, it is error to put him on trial, and permit witnesses to testify against him, without furnishing him with a list. Logan v. United States, 144 U. S. 263, 304, 12 Sup. Ct. 617, 36 L. Ed. 429. But in the absence of some statute prescribing a contrary fule, there is neither error nor irregularity in permitting a witness for the government to be sworn in criminal cases, other than those above mentioned, whose name does not appear on the back of the indictment or has not been furnished to the accused. Thiede v. Utah Territory, 159 U. S. 510, 515, 16 Sup. Ct. 62, 40 L. Ed. 237. Waiving, on this occasion, any consideration of the question whether it was competent ,for the Circuit Court of the United States for the Southern District of Iowa to adopt a rule, as it appears to have done, which would operate to exclude as witnesses in criminal proceedings, other than capital cases, persons who were qualified to testify under the laws of the United States, because their names were not indorsed on the indictment or furnished to the defendant, we are of opinion that, even if it was competent for the court to prescribe such a rule, the rule was practically abrogated and annulled, nearly 10 years before the case at bat was tried,
The errors that are assigned because of the admission of incompetent evidence relate to two kinds of testimony: First, to oral testimony; and, second, to written and printed exhibits, consisting of letters, telegrams, circulars, and publications in various newspapers, which the defendant had caused to be printed and distributed by means of the mail. In so far as the assignments are addressed to oral testimony which was received On the trial, they will be ignored, because they are not assigned in conformity with rules n and 24 of this court (89 Fed. vii, xi, 32 C. C. A. xiv, xxiv), to which we have frequently alluded. Neither in the assignment of errors nor in the brief of counsel is the substance of the objectionable testimony quoted in full, as the rules require, nor are we referred to the pages of the record where the testimony is reported, so that we can find it conveniently without loss of time, and ascertain if a seasonable objection in due form was interposed when it was offered. Where this is not done, and the record, as in the present case, is lengthy, we will not consider objections to the admission or exclusion of oral testimony, as we _ have frequently decided. Lincoln Savings Bank & Safe-Deposit Co. v. Allen, 27 C. C. A. 87, 82 Fed. 148; City of Lincoln v. Sun Vapor Street Light Co., 8 C. C. A. 253, 59 Fed. 756; United States v. Indian Grave Drainage District, 29 C. C. A. 578, 85 Fed. 928. If counsel will not take the trouble to state the full substance of evidence which they claim to have been erroneously admitted, and point out the pages in the record where it can be found and examined, we may well assume that the alleged error is not material, and accordingly ignore it.
Concerning the written and printed exhibits which, as the plaintiff in error claims, were erroneously admitted in evidence, it is to be observed, in the first place, that some of them are not set out in full in the bill of exceptions, and, in the second place, that the objections which were made to the admission of all the exhibits were couched in the most general terms, the objection being that they were “incompetent, irrelevant, and immaterial.” None of the exhibits are copied in the bill at the places where they appear to have been offered and read, but they are found elsewhere; some of them are copied in part only, while others are not copied even in part, but are described merely by. their date and general purport. This method of preparing a bill of exceptions is subject to grave criticism, and the practice of making up a bill in that form ought to be discouraged, since it renders it impossible for an appellate court to determine readily what evidence was in fact admitted, what was its precise nature, and what may have been its bearing upon the issues in the case. Waiving these objections to the bill of exceptions, however, and conceding that the question whether these exhibits were properly admitted in evidence is before us in such a form that we can consider it, we have concluded that the question must be answered in the affirmative. The letters and telegrams in question were principally written by the defendant himself. They showed that he exercised absolute control over the affairs.of the White Swan Mines Company, Limited, whose stock he was engaged in selling. They further
We have next to consider whether the jury were misdirected, and only one alleged error of this sort is called to our attention. At the conclusion of a somewhat lengthy charge, the trial judge made this statement, to which an exception was duly taken:
“It has been suggested that I have overlooked one thing. I may say you may consider, in determining the question, the fact that the defendant having gone upon the witness stand, if he has not fully explained, or has not explained matters which are material to the issues in this case, and which are naturally within his knowledge, you may' consider that as a circumstance tending to show that the facts, if explained, etc., would bear out the contention of the government, and his failure to explain them or give a truthful explanation is against him.” „
We have not been able to conclude that this instruction states a correct rule of law, or that the giving of it was not a material error. As we interpret this instruction, it means that, inasmuch as the defendant had elected to testify in his own favor, if while on the stand he had not fully explained all matters and things material to the issues in the case which the jury might think were naturally within his knowledge, then the jury might conclude that the facts, etc., if he had indulged in an explanation concerning them, would have borne out the contention of the government — that is, shown that he was guilty — and that his failure to explain was against him; that is, would justify a conclusion of guilt. This rule of law would put the defendant in a criminal case in a peculiar attitude, for if he takes the stand as a witness he must perforce explain every fact and circumstance which has been put in evidence against him, as tending to establish guilt, which a jury may deem material, and such as he could explain, at the risk of having them conclude, because of his silence as respects such facts and circumstances, that they are true and that he is guilty. If a defendant in a criminal case desires to take the stand and contradict some particular fact or circumstance that has been testified to, he cannot safely do so for fear of raising a presumption of guilt by his failure to explain other facts and circumstances in evidence which the jury may happen to regard as material and may think the accused could explain. The federal statute (Act March 16, 1878, c. 37, 20 Stat. 30 [U. S. Comp. St. 1901, p. 660]) provides, in substance, that a person charged with an offense “shall at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him.” When the defendant in a criminal case, in compliance with this statute, waives his constitutional privilege by taking the witness stand, he occupies the attitude of any other witness, and may be cross-examined like an ordinary witness, and to the same extent. Fitzpatrick v. United States, 178 U. S. 304, 315, 20 Sup. Ct. 944, 44 L. Ed. 1078. The federal statute does not, like the statutes of some states (vide Rev. St. Mo. 1899, § 2637), expressly provide that the examination of the accused shall be limited to the matters testified to on his direct examination, but we apprehend that it should be so limited, because that is the general rule which obtains in the federal courts relative to the cross-
The judgment below is accordingly reversed, and the case is remanded for a new trial.
Concurrence Opinion
(concurring). I concur in the result, and in the opinion in this case, with this exception: The opinion contains the statement that it is the general rule in the federal courts relative to the examination of all witnesses, except when the rule is relaxed, as it sometimes is, on grounds of convenience or necessity, that the cross-examination must be limited to the matters testified to upon the direct examination of the witness. I concede the general rule, but I do not understand that it is discretionary with the federal courts to relax the rule, on the ground of convenience or necessity, so far as to permit a cross-examiner to cross-examine a witness, produced by his opponent,
