Di Carlo v. United States

6 FEDERAL 36á <@=11661/2(0 DI CARLO v. 6. Criminal law UNITED STATES.* of —Commitment government’s perjury presence witness in for jury of held not reversible error. RUFFINO v. SAME. government’s Commitment of for witness perjury presence (Circuit Appeals, in of because of of Second Circuit. previously accused, refusal to 9, 1925.) March by grand jury, though her before the inadvisable practice, other possibility intimidating of because of 192, Nos. 199. witnesses, was not reversible error. — <@=>407(1) of 1. Criminal law Identification — <3=380(5) 7. Witnesses Latitude accused is admissible in prosecution examining its recalcitrant wit- where trial believes accused’s from court discretion, ness trial is within court’s and acquiesced conduct that hé therein. quiry may contradictory extend to state- accused, court, ments. made of out of Identification prosecution examining merely in ac- because made Latitude allowed is not admissible court, wholly its recalcitrant witness discre- presence, within trial when cused’s judge, questions may tion of warrant, trial and extend con- from accused’s with some believes (cid:127) inquiry to cross-examination and whether wit- acquiesced duct therein. that he contradictory ness at other has not times made jury statements, may gather so that truth from by <3=414(2)— wit- 2. Witnesses Statements bearing. his whole conduct and veracity challenged, be- ness made whose arose, fore admissible. motive fabricate are <3=351(10) Testimony 8. Criminal law — veracity chal- Where witness’ accused’s secrete re- wife asked witness lenge fabricate, state- to court, of motive volvers held Admissible. by motive ments made arose, admissible. of before out prosecution obstructing justice for and In testimony stand, are on consistent with conspiracy injure witness, intimidate un- and Code, (Comp. 135, St. §§ §§ der Criminal 10305, asked witness testimony 10306), accused’s wife — <3=417(9) of Declarations 3. Criminal law revolvers was admis- to secrete buying government’s witness, always sible, of permissible convicted to show since; accused, that picious to conceal sus- accused accused has made threats narcotics him, evidence. held admissible. attacked witness, government’s who Declarations of (8) 9. Criminal offer law of <3=351 —Evidence buying narcotics had accused, convicted of been by attorneys of bribe held of accused’s one identifying them, selling ac- of and persons competent, notwithstanding attorney name of him, made attacked cused as mediately suppressed.' hospital, ad- and after attack justice prosecution obstructing justice, obstructing prosecution for missible in conspiracy injure witness’ intimidate injure conspiracy to intimidate and of person, 135, Code, §§ under Criminal Code, witness, Criminal §§ under (’Comp. 10305, 10306), wit- St. §§ 10306), being (Comp. be- made St. §§ ness had been offered bribe one of accused’s attorneys notwithstanding competent, arose. fore fabricate name attorney mistakenly suppressed, of of consideration agreement attorney, <3=1169(2) be- under identifi- 4. Criminal law —Whether .both by government’s witness tween sides. cation of accused immaterial, in view admissible I0„ <3=723(1) Unit- Criminal law —Address previous admissibility declarations. improper. ed States held not government’s Where declarations áttorney, pros- States Address United identifying narcotics, prosecution for sale Code, 135, 136 ’§§ Criminal ecution undér him, accused who attacked obstructing 10305, 10306), (Comp. St. §§ assault, immediately admissible in injure justice to intimidate and obstructing justice prosecution spiracy con- “dagger witness, jury calling rule to end witness, injure under intimidate power behind these and stiletto” “invisible (Comp. notwithstanding Code, defendants,” improper, §§ §§ Criminal held 10306), revolvers, whether sub- immaterial witness’ it was not stilettos. accused used standing alone, sequent identifications, would Prosecuting attorney, 11. Criminal law <3=713—

(cid:127)have admissible. addressing properly jury, may endeavor side, persuade jury of truth <3=417(9) law Criminal —Identification impartial of evidence. limited to statement government’s admis- witness held accused addressing Though attorney, prosecuting sible, from which made under circumstances rigidly defense, jury, not confinedto but than is more limited say antedated motive could impartial statement fabricate. persuade endeavor government’s iden- Declarations emphasis. oratorical his side tifying accused, time after assault made some <3=1166(I)— him, Consolidation admissible 12. Criminal .in charging Code, misdemeanor with §§ indictment §§ Criminal justice prejudicial, obstructing charging felony 10306), and con- acquitted-of misdemeanor. injure spiracy witness, where circumstances accused charging mis- indictment that identification were such that could Consolidation charging felony was indictment demeanor with of witness antedated motive to fabricate. * Certiorari denied S. Ct. L. Ed. —. plaintiff witness, and Di Carlo was witness, charge against them. nected firmed. recourse indictment. ness, for were convicted of ments Ruffino was obstructing ments, both that defendants withstanding Circuit the United States. idating a misdemeanor and York. one. under Criminal necessary §§ defendant was and took out nal Code er 10306]). Each sought on tion dictment and ed States and the two 14. Criminal for show new nected with ment’s witness person Louis L. Thrasher Before HAND, In error to Ernest Joseph J. Di Carlo William One Pattitucei was a raised- of the 10305, 10306), In Order conspiracy prejudicial, Criminal bought injure others, defendant Di Carlo. Di Carlo was convicted on both ; with trial on one for defendants were still Judges. being to executive in error Ruffino. Jamestown, of the Criminal Code a separate W. who [Comp. HOUGH, witness refusing alleged for the Western J. Circuit codefendant justice law conspiracy McIntyre, Buffalo, set Donovan, Buffalo, convicted furnished person the District Court of the to intimidate codefendant where alleged obstructing justice was furnished Code, separately supplies held not reviewabie. sufficiency <3=^427(4) evidence was indictment had two reviewabie; <@=>1156(1)— refusing recantation to intimidate and to indicted (section evidence for testified as new consolidated Judge. conspiring to and writ. Since no MANTON, acquitted accused N. who had testified §§ and John obstructing recantation held admissible to show1 10305]), morphine addict, had ended. trial after and acting intimidating wit- from Di Y., part by persons con —Evidence 135 of the and bring clemency. under two that bail acting also convicted of District of New DI defendant’s by government’s Joseph ° same as Order on the first in- outline of second. Each injure [Comp. admissible and tried and the oth- S. CARLO plaintiff error. Af- acquitted unison, proof, justice Carlo, intimidate N. conviction, N. Leonard, unison. HAND, witness, for one Ruffino govern- to each counts, Y., Y., indict- indict- Crimi- injure intim- Unit- St. § that Pattitucei had out of court declared that 6 F.(2d) (sec- not con- only v. UNITED bail and two men identification, ly, remembering, license number be convenient raised in the both indictments. tucci within policemen, dieaso, tion that same told them two more besides. Di Carlo and the assault he was Ruffino that nesses to show there arrested them. sion of the evidence of a number of witnesses two pital, him in the chin. He ran from had shot tueei, who was in ants of an alibi. indictment them to others. May victed, Buffalo tucci had ‘been Di Carlo and one morphine had been set to two sailants as Station, caped Capodieaso were the ally raided, witness Western served. dictment of ant in the indictments States and convicted On trial, same night other men. Pattitucei only him. He had Gilmore, was attacked gave STATES chief years’ imprisonment, a defendant who before the District of New some distance from the By arrangement with following him, stepped especially objections Di Carlo used them night their names to two armed that Di Carlo and Giallelli had first Bragg did not take for Di five minutes of the Di Carlo and he issue at the trial he was at home. appeal all Di Carlo’s Case. Giallelli were to take injury, night ear as the sale subpoenaed he later Carlo Ruffino was learned trial His restaurant Carlo out of motor the District grand jury in company at the New York Central Giallelli, was arrested taken to a the admission January defendants cared Pattitucei concern and himself, ear. men men, one of arises from the admis finally reaching a hos- Ruffinoand and up and that or about Gorski, became the produced for and which contained out a writ. York, and another Giallelli bar, in the ear. Two At the Giallelli, morphine for. identified his trial, on another which judge. the conduct cases a witness. aswas who shooting, Ruffino hospital, the streets found them and es- acquitted on assailants identified all giving proof Ruffino was eventu- with the time of securing officer, His assail- scene, many wit- whom and Patti- ear, for dispensed sentenced separate- principal was con- he never and defend- The in- for certain It will one or selling others, lemán, points Patti Capo- raises Patti- who who shot sta as- FEDERAL purposes implying inadmissible, when the within this is that earlier identifications declarations 1915A, lowed 209 N. Y. jurisdictions, probably ber of those jection there to with what he anyway, witness is is well the motive arose. The common sense of such a rule tions deed evidence statements made titueei’s accusation in the plainly not the evidence of how the defendants met Pat- ipso theless fendant thing is a common error to hearing missible. (Mass.) 485, that from ference the trial four presence port Claymonst, They suggest close a es, Christie’s dence, Pearl, challenge generally accepted who so swore. The Mass. competent be found cited 14 A. facto admissible of the men before the discretion of the trial arguendo it, However, On the other good law. Do the facts at bar fall cluded argument 501; that the evidence is more must settled ease be a serious error. these admissions. heard himself identified a since the witness that we assent to objection incompetent, judge fabricate, been too But the Case, in the subject made before which have decided the rather within the rule Pet. enough for bias. Without in acquiescence may argument, we cross-examined. 'delicate State v. says declarations will that, as conduct of the defendant the statement. this is true N. J. 23 N. E. 223. Other we believe that the evidence 103 N. E. ^[1914] (semble); Com. v. on the quite appear strong is in substance'not Justice hand, when the the Law, Flint, one, law. some they would, Wigmore challenge admission of this evi- a number of witness- admit the identifica- A. C. suppose another competent stand, only it is held in for the formal ob police it, Jenkins, 9 L. Ed. dependent largely off the stand than that the de- Story took hearsay, Hewitt 60 Vt. warrant believes existence People him. 114 A. 155. It a defendant reasonable in- scarcely We 545; veracity This greater judge, assume that place in the fabrication. The ground. (2d station think, cases because of merely Ann. Cas crime. To in Ellicott hypothesis admitting any think consistent While were ad- witness inferred. State v. and in clude them one must Ed.) of mo- Corey, before put never- every- on the Katz, many stand. sense num Gray cases good 316- seems after in so identifications cán of a sup- are the al means of It cumstances which unable to not of ing tal, volve police station, especially deed have He police. falls no reason to puting would be time, which escaping, accorded near most under the which the able ing tive to ants as his assailants. to attacks means of victed his He sor to which from saying upon made, they gestion fication under tive to [4,5] His declaration to.Thierfeldt His declaration In the seems to us supposing that should have he would had therefore Wigmore (section testimony, though within Giallelli in time as to only immediately the contrivance his Buffino, these, stand. the assault to sake of identify upon fabricate? for their admission, may and subconscious, though innocent, cases at bar immemorial custom in us fantastic. Carlo and Giallelli in a new crime, wounded, escaping operation established commuting testimony identifications we are all already upon a part, interested in reason to sentenced, are show that the impute spontaneous be suppose comply chief that were brought reason whom he had oath is insuring sarnie universally seized thought precluded neutral witness’ concocted a have the fresh recollection of the favorable, might from a after the at all. this is not complaint to him such a design Pattitueci had been con- suppose reasoning. removed rule, suppose Bragg of that his persons theoretically possible. strongest subject. the stand the defend- not the result of 1130) the ease of a neutral identifications in the form a valid answer the motive His therefore admissible since coupling declarations sentence; if made under cir- murderous public subsequent because, any admitted. To ex- be impeached. admitting it was or made When Di Carlo abe own theretofore been sentence, by verity generally declarations, or that Profes- pseudo memory is these alone in event, that in in time, whom he had scheme desire of the in the hospi- is, possible an adequate We release, He may in- such cases. valid cheek event as Gorski, authorities plain testimony with the such be- through improb- justified are far was so attack, station freshly so do- identi- at the earlier same, sug- mo-' but al- mitment in the

circumstances whom, jury, pra, left have put the identifications outside and his of the authorities. ing, this evidence larations if mean strong tification be him on the men in the motor. hold of Di us the ally E. him, and as true that thought the them Pattitueei had fabricate at fair material whether or not the second cept the rule quite independently of whether we should antedating mean that excluded them. night, after their arrest grossing tified them date original Y. seems to us a Several ei’s This does the absurd to event which first was weight the first statements to the that the identifications did presented, it People it is he had for been whether the circumstances were such as conceivably station house. helped Carlo between The next corroboration law, as reasonably 106 N. hours had indeed repetition ease, turned Gilmore that his declaration, we Indeed, his attention for the might motive, distinctly we have the the the declarations such, his motive if the street, but it time the time. We do v. to Di not, say that, thought admissible, the question along tenuous distinction police E. 105, Seppi, People may fairly be admitted impeachment. at the That circumstances escape the evidence, month been in the merges imperceptibly these, Carlo as and Ruffino as is admissible he possible said, People if admitted. Hence we suggested In the undergone the conviction. upon in the end to it stood alone. Holding, police, had court when it perjury. Ann. Cas. 221 N. arises might v. police add believe Pattitueei would escape original following elapsed, Jung Hing, admissibility which, how made apply think it if admitted. view given the well, testimony, should be taken as he at anything DI CARLO Jung moment. .It is station. that such not, Y. any have as we probative did not add next, identification stance of that it was in fact ante- has not were such be his sentence. lay the It seems question the the witness 1915D, if Before declaration under such admissible, in the case about the stand. to one of operation, once iden- Giallelli as Hing, promoted quite the Pattituc- attacked the motor are tak- Ruffino, do, custody already arrests, 116 N. course, 212 N. But it himself during gener- to would duct given As iden- com have 6 F.(2d) into dec- y. We the the refused to the of its the the trial en- where the ac- su- as to tion to a made UNITED STATES face, tack, witness Gilmore to hart prosecution, story not to the possibility er she corroborate viction should inadvisable. Still ed, The others substance timidated. That which we times agents possibility versal, We cannot taken 267 F. 670 enough. Geraei, F. little more than that he did not believe the examination she was Whatever grand jury Our decision in Rutherford v. three, bar we us fanciful to assume such slight importance for the stories of opinion upon could not prosecution. longer this was judge might bluntly unconstrained. Davis did more then when as we have which concerns the examination of the be the a ground alone, our supposed but there is 169 C. C. thought the trial great yet Pattitueei Leonard Smith and Davis. It already Davis alone could have been affect she the same can find none such as to whom to such witnesses as the began judgment presiding judge may ear, had attacked Pattitueei. thought point do disguise was more testify (C. A. 8), Delahunt, as examined she had identified Di result; were either it would plainly surprised officers or officials. Of refused to latitude in record there so, to not detail. witnesses persons C. be the rule in she was herself. effect to cross-examine her examined out of although A. possibility it At the conclusion of We up thing. be before the the nothing reversal, largely the somewhat seems committed considered leads to the have it Degenhart in court. States, except Degen reversed and his evidence was upon the defendants. can see as one than faet that this who, stepping practice appears concealing unfair her have included She similar action was police in McNutt U. been to she declared that presented witness, and for to indicate other witnesses. point a federal formal, except .is examination us that told the have learned told the possibility this action is dramatic grand jury. jurisdictions regarded throughout, that he confined In the case and Smith officers S.,U. this court, Carlo and of the she could such con the mere the truth certainly v. prosecu perjury- because express may a trial strait- a con court. seems event same volte than oth the in re at S., At as FEDERAR fer of proached sides marily ation was has made efforts ways They wife had asked evidence. he son and in court. what cessity accordance with the truth of words uttered ers which Geraei ing ity find no 160 C. C. A. 584 170. earlier abused as in Rosenthal U. answers he ing, approved, S., 567, 34 C. C. A. coma v. dictory ly, present truth, ination, but, if Tacoma R. & P. Co. a witness whether he has not made contra- such circumstances Ct. more amination of a discretion statements, (C. duced. The latitude to dence jury, ^[9] In St. Clair U. ^[8] said that the 162 U. S. suppressed, U. S. C. admissible. These proves even see of the agreed he permissible for him. did hot arise here. Nor was the The unfair oath The before the that the ease sworn was A. difficulty'in before, statements before the brought says statements at other times. Hays, what bribe. were in 38 on other occasions. from his whole conduct and That was 9). as entirely qf evidence Delahunt and Davis in court. next recalcitrant, the stand one of his L. than now is not the questions to contradict Di also in 687, 16 the trial v. him to secrete they See, also, Hickory this, Ed. 936, mistakenly out have It is necessary to do 545 out (C. The name of the point grand jury There see and hear of decided it. in preference F. show that the defendant must respect are none the S., all C. A. (C. C.) Carlo’s and would (C. neutral made at other times. accept confine Swift is quite clear S. Ct. attorneys away S. Ct. extend to etoss-exam- ate argument, If, that was 154 U. witnesses were who has been judge. Nothing is indeed they C. is it allowed in the 8). wholly that from all before the 49 that Di no A. house. v. truth, as the truth the decided 106 F. inquire questions. S., certain revolv- Her actual evi- The procedure was not bring Putnam v. U. conclude Carlo’s contradictory contradictory C. C. A. 115 S. The Short, mythical 8); Hays of consider real, party with the of 248 F. done less suspicious that both within the 134, 38 L. Ed. .but that be mon to those of all oratorical emphasis, possibil that It Carlo’s L. Ed. evidence. gather decid U. He is grand 92 P. intro- called alibi. is al 14 here. what right bear- per pri was ap Not Ta nize ne eonvieted. we ex- S., S. of v. on the (cid:127) could have been tion was or another with consolidation. dictrqent tion raised the first ond ghostly phantom been an latitude to the vinced before ing attorney execution of the criminal law cept tirely to of which he rigidly ther was tion to cline to without warrant. jury. comments. It ants.” We cannot find Nowack Metropolitan counsel R. Co. Rambo, attorney is strous ^[12] persuade [10,11] The address of the United States justice; Rep. for a 135 with that under section arrested his argue evidence was that the as the used. 60 N. to by allusion to the stiletto when a revolver “invisible not be inferred from their “attitude These rule of now to reverse the misdemeanor, limited stand.” Rufflno raises those put.some permitted consolidate was accepted assimilate its was allowed to show until the Di Carlo. The felony. He is an who were second E. An “invisible it for misdemeanor to an precisely called jurisdictions for him earnestly he begins ought based Ruffino’s Case. is Wigmore, § than the the “dagger is to defense, The any prejudice jury Di Carlo. no While, a power bail lived of the innocent man indeed fatuous to theoretical incident very himself complained clearly impartial As It consisted of a moder-, the indictment longer any or evidence to F. advocate, deny we was connected position Rufflno L. R. A. to confine a up end, when the learned behind these defend defense, of is to cannot them competent, & O. is first same. while furnished all. judgment to its course, power” might what has 280(2). thoroughly statement of the two by questions Ry., load way arose from the analysis abuse in such was an of, but when Rufflno to that and it is en To shear him 8 C. A. co-operation custom more leaving argument' 592, Am. we in one to each see that yielded that was points C. put agreement. end, under sec 166 N. Y. we trials, acquitted prosecut complain prosecu must stiletto,” B. perora serious falsely always he it recog scales there part quite wide way side, con to a sec not can end in ex de ei or 6; not correct We viction, Pattitucci, doubt refusing May ency. poisoned fendants innocent, retrial of the cause. our cumstances Judge, after spiracy. others out of decision arrest. With connection between assisted between tbe fendants were showed we have which should evidence, stating that record system slight but Gilmore, curious judgments conspirator Finally, we proof anything, recourse, the release nothing to do with the declarations submitted, produced himself. After It was and that here, it. new were too two a careful jealousy. be limited criminal tried to kill reviewable, trial. and the defendants conspirators. competent. competent, have weight are affirmed. except it showed that the must baffling. acting- admitted who had .cannot concluded written recantation doubtful to nothing procedure The situation If it be two, the other consideration assault The learned decide the ease the defendants that should in unison. certainly her, and, review the the term against another, executive After quarreled death, ARMSTRONG LANGMUIR So far as show to do. had been The evidence showing the a defect in demand the con have no that one the cir District failing, two 2. of con- In this - such clem given order their can de de- no F.(2«n plicant a 5. Patents to 9460), party, al which entitles them, pensable 3. miss ance. standing dismiss other defendants. cially, pearance, validity, dispensable for lack of substantive ternative to subject-matter miss' on that ty suit have no plicant. erally. dismissal as defendants. no jurisdiction Appearance Equity Equity Defendants, A defendant to suit constitute suit, standing generally if their motion assignor for lack coupling as that a motion to determine the party, where the second under Rev. St. <@=361 <§=361 <@=114 Assignor not to constitute party. standing over to other patent. compel general appearance. suit which without <@=9(5)— appearing of a —Defendants has no appearing specially, —Defendant move — first, them with a defendants, appearing want of moving dismiss personal patent with a served, issuance to defendants. right ask a to dismiss making standing Coupling jurisdiction well move to dismiss specially entitles motion is not defendant for lack motion to dependent though jurisdiction dismissal general taken, dismissed an adverse motion indispensable them proper adverse in the suit as to general to move served has over is an have motions appear- person- dismiss to dis- as to indis- party an al- other over gen- par- spe- ap- ask ap- ap- its § I HOUGH, Judge (concurring). Circuit Appeal from the of the District Court point the concur, but consider on one States for the Southern District enough. opinion far go court’s does not New York. continuing process, Identification is often equity by Armstrong H. Suit Edwin when witness court has identified Westinghouse and the Electric & Manufac- every previous rule accused, of reason against Irving Langmuir turing Company under di- identification at divers times and dismissing From an others. order legiti- verse circumstances should constitute complainants ap- bill, certain defendants identifying evi- corroboration mate Affirmed as to peal. parties certain defend- evi- dence. In the same manner would as to ant, reversed others. legit- previous failure dence of Appeal from an order District opposing evidence. There is no deci- imate Court of the Southern District of New York Supreme contrary sion of Court to the dismissing a bill of the de- complaint go think we far. this, and I should Lee De Radio Forest, fendants De Forest Telephone Telegraph Co., Alexander & Meissner, Secretary Navy, dismissing the bill all parties, as to be- al. ARMSTRONG et v. LANGMUIR et al. Telephone the De Forest Radio & Tel- cause (Circuit Appeals, Second Circuit. egraph Company indispensable party 1925.) March defendant. No. 237. Pennie, Davis, Edmonds, Marvin & Appearance — <@=9(2) Coupling I. of motions (Thomas City Ewing, York H. New Wm. by party appearing specially held not to con- Morton, B. Davis, and W. all of New York general appearance. stitute counsel), Armstrong City, appellants party, ap- wrong A sued district and pearing may couple specially, motion Westinghouse to dis- Mfg. Electric Co. (2d) 6 F. —24

Case Details

Case Name: Di Carlo v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 9, 1925

Citation: 6 F.2d 364

Docket Number: 192, 199

Court Abbreviation: 2d Cir.