City National Bank of Baton Rouge, Testamentary of the Succession of Para Pierce Aldrich v. United States
383 F.2d 341
5th Cir.
1967
Check Treatment

CITY NATIONAL BANK OF BATON ROUGE, Testamentary Executor of the Succession of Para Pierce Aldrich, Appellant, v. UNITED STATES of America, Appellee.

No. 24061.

United States Court of Appeals Fifth Circuit.

Aug. 9, 1967.

Rehearing Denied En Banc Sept. 14, 1967.

341

the prosecuting attorney repeatedly suggested his desired answers. Time after time, objections to the leading questions were sustained, yet the prosecutor persevered. Ultimately, the court was required to find him contemptuous, stating “you have constantly and continuously engaged in this leading question business after I have repeatedly warned you and warned you and warned you. You leave me no alternative.”

The Government sought to introduce evidence of oral statements claimed to have been made by Kidd approximately six months before the date of the robbery. When inquiry concerning these statements was directed to one witness, the court sustained appellant‘s objection. The ruling was apparently based upon the fact that since the accused was not shown to have been then connected with the declarant, the proposed evidence was immaterial and prejudicial. The prosecutor persisted, attempting, thereafter, to elicit the same rejected evidence from two additional witnesses. The attempts were made in the presence of the jury. The import of the excluded testimony was again suggested and emphasized. The defense moved for a mistrial. In the light of subsequent events, it is regrettable that the motion was not granted.

In his closing argument, the prosecutor improperly expressed his own personal opinion, unsupported by evidence, as to Kidd‘s motivation in undertaking to exculpate the appellant. Moreover, he misquoted evidence, stating, in effect, that a witness Crippen had testified that Kidd had told her that he and appellant had committed the robbery. She did not so testify. She testified only that Kidd had told her that someone, unidentified, was with him when the robbery occurred.

This severely prejudicial misrecollection and misstatement, absent objection, would not, of itself, necessitate a retrial. We are unable to perceive why objection was not made by the appellant‘s trial counsel. He does not represent the appellant here. He requested no jury instructions, not even that which would have admonished the jury to view evidence of oral declarations with caution.

In post-conviction proceedings, the district judge expressed agreement that the prosecution‘s case “wasn‘t * * * * * very strong *.” This truth strengthens our opinion that a conviction resting upon the cumulative effect of many prejudicial irregularities should not stand.

Reversed and remanded.

Victor A. Sachse, Breazeale, Sachse & Wilson, Baton Rouge, La., for appellant.

Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, David O. Walter, Robert Waxman, Attys., Dept. of Justice, Washington, D. C., Louis C. LaCour, U. S. Atty., New Orleans, La., Walter F. Gemeinhardt, First Asst. U. S. Atty., of counsel, for appellee.

Before RIVES and DYER, Circuit Judges, and JOHNSON, District Judge.

PER CURIAM:

The issue of whether a one-third interest in a Louisiana partnership was a taxpayer‘s separate property as a bona fide partner with her husband was originally decided by the district court adversely to the taxpayer, in an opinion reported as

. The district court held that the taxpayer had failed to prove the existence of a bona fide family partnership between her and her husband “in accordance with the controlling Federal law“. (Emphasis added.) On appeal that judgment was at first affirmed by per curiam opinion. On rehearing before a different panel, it was held that state law rather than federal law determines the ownership of property subject to federal estate taxes, and the case was remanded for further consideration.
. In remanding the case, this Court stated: “Due to the peculiarities of Louisiana law, we hesitate to decide those [state] issues for the first time on appeal. Careful consideration by the district judge, thoroughly versed in the law of his State, will make a correct decision more certain.”
. The district court gave full consideration to the case on remand and again decided adversely to the taxpayer. In an able opinion the district court held that, under Louisiana law, a wife may not validly enter into an ordinary partnership with her husband, and that, in any event, no such partnership existed in this case.
.

This Court has recently stated: “We give great weight to the view of the state law taken by a district judge experienced in the law of that state, although of course the parties are entitled to review by us of the trial court‘s determination of state law just as they are of any other legal question in a case. See Wright, Federal Courts 206 (1963).”

.1

After careful study, we agree that, under the law of Louisiana, the wife cannot become an ordinary partner with her husband for the reasons so fully and ably stated in the opinion of the district court. The judgment is therefore Affirmed.

ON PETITION FOR REHEARING EN BANC

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, Rule 25a, subpar. (b), the Petition for Rehearing En Banc is denied.

Notes

1
1. Accord:
; 1 Barron & Holtzoff § 8, p. 42, n. 6.14; 1A Moore F.P. ¶ 0.309 [2], p. 3330, n. 15; 5 Moore F.P. ¶ 52.03 [2], p. 2631.