Ernest Tatum v. United States

conforming majority those does beliefs Tax might good faith issues. well raise constitutional suggest about doubt their petitioner’s members belief us now is practices for them are beliefs and broadly petitioner ec whether is in an religious ligion belief. and a religious society clesiastical sense a or church, narrowly under this sources standard Reference to particular qualified statute for tax terms discloses definitions exemption.6 ordinary “religious” “religion” Indeed, rigid concepts. usage are not We hold on this record and under the 4 controlling works statutory standard petitioner the definitions these free together qualifies religious means corporation no are as taken “a or ambiguity. society” would building definitions Some “is one religion. only primarily regularly Some include the Christian used its con- worship gregation religious a di public worship.” in and for belief call recognition ruling aof power or vine Reversed and remanded. controlling man’s supernatural power def destiny. in these included But also some of “devotion is the idea

initions faithfulness; fidelity principle; or strict affecting conscientiousness, at pious

tachment.” Congress exemption granting tax states, statute, under like most legisla- giving expression to a broad grant elements tive TATUM,Appellant, Ernest good regarded community community. exercise of its In the America, UNITED STATES of Congress power has extended

undoubted Appellee. only immunity and bo- tax to sincere No. 13354. religious but also to na fide activities patriotic Appeals socie- various educational States Court of District of Columbia Circuit. groups programs are ties and whose thought public interest and to be in the Argued Nov. 1956. buildings exemption welfare. be- Decided Nov. longing “religious corporations or so- exemption to cieties” is in a context of Rehearing In Banc Petition Denied galleries, libraries, charities, art 6, 1957. Dec. many hospitals, colleges, schools and organizations. named To construe

emptions strictly that unorthodox or

minority worship forms of would granted exemption nied the benefits Court, proof, Ed.; Dictionary (1951 Daw to the satisfaction 2d Black’s duly appointed, ordained, Ed.) that he is regular such and that he communion Among definitions of the verb “to Religious Society of which he following: perform worship” “to member, hereby is, this 30th ho is religious services.” Webster’s Now In- day July, 3947, authorized to cele- Dictionary, 2nd Ed. It is in ternational marriage in the rites of the Dis- brate petitioner qualifies, sense that not in trict of appointed as he remains Columbia so paying homage super- to a sense above- or ordained being. natural Society.” Religious named Humanity Fellowship County Eng.Dic. Ed.); (1955 6. Cf. Shorter Oxford Cal.App., Dictionary, Alameda, P.2d 394. International Webster’s New Washing- Dougherty,

Mr. Thomas J. C., ton, D. with whom Mr. Jerome H. Heckman, Washington, (both ap- D. C. brief, Court) pointed was on the appellant. Lane, Atty., D. Asst. U. Mr. John S. Gasch, Messrs. Oliver U. whom S. Atty., Carroll Arthur J. Me- Lewis con- Attys., of its Laughlin, were on and is offered for the truth Asst. U. S. Cir., Riccardi, tents.” brief, appellee. States Before Bur- Prettyman, Bazelon is had There no doubt that Judges. ger, Circuit legally witness form been unavailable his Judge. testimony er admissible BURGEE, would have been Circuit by proved steno could have been carnal of Appellant was convicted graphic transcript trial. Cf. of first child, fol- knowledge nine-year-old of a Meyers States, 1948, 84 U.S. by lowing prior conviction reversal of a App.D.C. 800, 101, A.L.R.2d 11 this on points raised this court.1 The denied, certiorari 336 U.S. admissibility cer- appeal of concern the 69 re 93 L.Ed. 1076. Court necessity testimony and the tain medical porters by appointed are officials of instructions. certain authority for court under of statute question whether first The preserving testimony, and of testimony admitting of court erred in by statute,3 transcripts, their “shall be admittedly had expert who witness prima deemed facie a correct statement facts independent of no recollection ”* 4 testimony taken. testified,2 who testified to which he testimony judi- reviewing disputed recorded Nor should it be that a his subject Appellant transcript proper claims cial at testimony trial. is the the first meeting past a record of Courts inadmissible as recollection.5 long acknowledged “present propriety recollec- of have the standards of either adopting re- “past recorded recollection witness a recollection tion revived” or existing corded”, past from in the recol- prejudice resulted where his once cross-examining difficulty impossibility lection has vanished. precluding chief of past effectively. recol- the use of recorded witness lection accuracy “the has been the need insure challenged testimony con- involves record,” e., identity i. mentally appellant com- was clusions that petent re- the memorandum or document crime, on based at the time of the past 3 flects the witness’ recollection. appellant made of mental examinations ed.1940). Wigmore, (3d To Evidence 64 August September the witness rules this end courts have formulated trial, of of 1949. the record The first designed guarantee recorded that the which formed the of the witness’ basis knowledge accurately clearly was by early present testimony, Feb- occurred rec- membered the witness when the ruary of 1950. or verified. United ord was made States testimony in The effect of witness’ requirements Riccardi, supra. If these the circumstances of this case was to reliability met, are the nature of troduce in evidence the substance of prepara- mode of record as well as the testimony as recorded at the first immaterial. tion should be directly “Whether the record admitted judicial evidence, transcript indirectly by per- into of a use reporter parroting witness, an officialcourt at missive it is recorded memory which the events to the wit- a substitute time when nevertheless acceptance Wigmore States, 1951, 1. Tatum v. advocated United 88 U.S. testimony App.D.C. 386, whenever the witness 190 F.2d 612. former was testify, presently unable to even Upon the witness ad- cross-examination responsible lapse time was where present recollection mitted that his con- Wig- present recollection. 5 loss of solely present recognition sisted appellant of a (3d ed.1940). more, § Evidence 1408 and the fact that he authority paucity on note 5. We past. him in amined point. 125 cited at A.L.R. 246 See cases 753(b) (1952). (1940). 3. 28 U.S.C. § concerning extensively fairly in his ness testified were fresh second trial of re his medical from the mind liability. essential tests formulated satisfies the examinations; Keeping rules in mind that limitation governing past rec recorded effectiveness this cross-examination the use of partially oppor developed secure at least cured ollection were “to witness, tunity memory afforded for cross-exam best available guarding against imposition ination at first Mattox while trial. See memoranda,” purporting 15 S. false use willing say Ct. 39 L.Ed. circum 409. In these are that the resulting admitting prejudice stances we do not find abused his discretion in testimony. Socony- procedure from the in Cf. United States followed the 231- Co., 310 court. Vacuum Oil 7, 84 1129. 237, 60 L.Ed. urges Appellant also the trial court committed fail reversible error in present the the witness In ing charge jury appellant to the that if transcript trial. the reviewed the insanity acquitted by should b.e reason of proce Perhaps orderly judicial a more he would be sent to a mental institution in recommend dure this situation would long safety as his as produce and the the use witness public require. Appellant contends appears testifying.7 transcript while under charge v. United States8 such however, appellant record, from this insanity mandatory was whenever authenticity did is a defense.9 reviewed the witness document which and, being record, public such an not make did matter mandatory transcript to instruction in times available the sense was at all oppor in appellant. all had an its omission Thus circumstances is interpret tunity verity testi error. We versible precise need not to check the used, against mony transcript direct effect of and there Furthermore, instruction, others, discrepancies. sub- this like attention to then, ject look, to Rule 30.10 to We must was in fact cross-examined the witness mandatory ed.1940). prospectively Wigmore, (3d an instruction 6. 3 Evidence 100 from decision. pro- however, held, 7. It has been 30, Fed.R.Crim.P., U.S.C., 10. memorandum of Rule 18 duction in past court of provides part; party may pre- “No as not an essential recollection is sign portion charge requisite error testi- as to the admission objects mony. State, 1903, therefrom he Wis. omission unless Loose v. 120 jury retires thereto before con 97 N.W. 526. distinctly verdict, stating sider 1955, U.S.App.D.C. 373, 222 F.2d 95 objects and matter which he stated: “But In this case the court objection.” complain grounds of his person an has think that when accused we years was 9 old when the of witness may insanity, pleaded and the counsel occurred fense 1949. One judge jury that if inform the he should preclude a defendant from Rule 30 was acquitted by will reason timely exploiting own failure make presumed con to be insane be be objections. In is not this case there ‘hospital insane’ for the as fined in a suggesting even a basis the failure * safety [his] ‘the oversight of counsel. was omitted). require.” (Footnotes welfare’ encourage, or To even tolerate page 379, page 222 F.2d at Id. one-sided “Russian Roulette” instruction, how omission of could lead to a breakdown all courts ever, not made a of reversal system already in a law enforcement Taylor. Ibid. See also Durham v. by multiple plagued trials. Tatum’s next States, 1956, U.S.App.D.C. 132, 99 plea, gave one, if him be could well 760; Kelley States, v. United F.2d 237 speedy that he has been denied U.S.App.D.C. 13, 236 F.2d 746. States, See Williams v. United U.S.App.D.C.-, Lyles 1957,-U.S. States, 9. In F.2d 19. App.D.C.-, --F.2d-, we made such sanity “will injustice he has recovered resulted manifest see dangerous to future reasonable from the omission. and, upon demand or others” himself shows in this case The record court, notice prosecutor, request the court counsel did not fense findings. hearing, makes those same Following jury. instruct charge, Attor- the United States this stat effect the enactment What ap- possible given ney issue of the raised the to be the instruction ute had The trial ease. plication of the jury full court came before the regard - he did not indicated U.S.App.D. Lyles v. United mandatory. Defense counsel struction un C.-,-F.2d-. heldWe given urged ob- nor that it be neither affirmatively rec “appears on less it defendant jected omission. The to its not want the “defendant [does] ord” ** deliberately having consciously and thus given an instruction s asking instruc- for the refrained of insan whenever hereafter object having similarly failed to tion fairly ity raised, shall omission, heard he will not be to its complain legal meaning jury instruct as to the now, years after seven of it guilty by of of in a verdict not reason of * * * years after his first and six offense sanity Exactly jury .” what the Considering record, not do entire we the merely indicated, did must told we this instruction of the omission believe referring, elaborate, instead, not to our appellant’s prejudiced substantial the so rights Taylor problem discussion in deprive him a fair trial. of as to States, page U.S.App.D.C. United at 379, page judgment 222 F.2d at therefore below is Affirmed. requiring The reason for instruc the tion, pointed dissenting my as I out in - Lyles, U.S.App.D.C. in at Judge (dissent- BAZELON, Circuit -,-F.2d at-, that, it, a without ing). jury, by specter of violent influenced the Taylor States, 1955, 95 In community, lunatics turned in loose the U.S.App.D.C. 373, 379, may despite strong “convict, of evidence that “when an ac- we established the rule insanity at of crime.” the time the See person pleaded insanity, has coun- cused States, also Durham v. United 99 U.S. may and should inform the sel the App.D.C. 132, (1956). 237 F.2d 760 If jury acquitted by of if that he is reason justice done, jury is to be a “the has insanity presumed will be insane to be right meaning know [a to the of verdict ‘hospital and be confinedin for the a guilty by insanity] of not accurately reason of safety and insane’ as * * ‘the by as it knows commonknowl require.” We welfare’ [his] meaning edge pos two the other (1951) D.C.Code 24-301 which cited § Lyles verdicts.” sible provided that, acquittal, in of - - U.S.App.D.C. -, F.2d at -. “may” certify the court the to the fact Security who, Federal in Administrator “may” usually impossible order After turn confinement. show the to decision, Congress Taylor prejudice our amended exact extent of to the defend- resulting make a statute to commitment ant omission of in- mandatory justice requires. in institution mental cases struction which We ob- acquittal pro- questions prejudicial reason of and viated future as to viding by holding Lyles procedure standards for ter- effect in the in- mandatory mination confinement.1 The substance struction is unless the defend- person affirmatively thus con- the statute ant shows that he does not doing, course, fined will remain confined until su- it. In want we did perintendent hospital Taylor any way in certifies that overrule dimin- (1951 (e) V). Aug. 9, 1955, (d) Supp. D.C.Code, § Act 09 Slat. 24-301 ap- later, contrary, About two in comment months ash force. On the appellant’s in cases in proved hold that affidavit did not it. We application Taylor Lyles, proceed in- for leave to with- decided between prepayment costs, properly out filed have been omit-

struction could rejection memorandum of ex- affirmative ted even absent refusing plaining es- we did was reasons for the defendant. What (1) rule we think struction. Those were tablish for future cases reasons amended statute. from the as to the instruction was must flow whether, Taylor; (2) Lyles open obiter dicta in Taylor left one, mandatory; (3) present tried rule is like case, testimony Lyles, instruction it made but mandatory psychiatrists an ab- there was clear that considered was so give mentally duty when judicial it even In view of the sound. solute brought foregoing reasons, stated memoran- been the matter dum, sincerely judge. reason- But the “This believes attention Lyles compels mentally it would have been dishonest of both give instruction with the toit the instruction.” conclusion attention, judge’s brought it was Supreme Waiver is defined it. error refuse relinquishment or Court as “intentional give refusal to right privi- abandonment of a known sustain- instant case is instruction lege.” Zerbst, 1938, 304 Johnson v. majority on the ed L.Ed. deliberately “consciously and My colleagues put terms object- requesting it and refrained from” deliberately” “consciously rejecting hold, They do not omission. to its right privilege. or cannot said It be neglect noted, mere be should he was “known” to that it request the instruction instruction, right Taylor had a to the refusal, justifies «object omission to its judge just had finished when the ¡but re- only conscious and deliberate “ * * saying, *.” not so it is then, is, fraining does so. appellant’s cannot be said that And it conscious whether there relinquish- “intentional” was an silence rejection instruction «deliberate instruction, in the face ment waiver. clear amount to as to the defense flat announcement dispute. happened not below is What give unless the instruction he not would charge given had After the by this court. to do so forced conference jury, a bench there was prosecutor said: which the suggestion that the The fact that Tay- recall, Honor, I “Your given emanated instruction be says you should tell lor case prosecution rather than the they tell jury, I all understand nothing to do with the trial fense judge’s jury, verdict defendant’s if the refusal, give it. That refusal n «ofunsound why, then, mind, will theory shown, on a was based I have until Elizabeth’s St. committed to giving dis- instruction is there —” over authorities judgment cretionary on considered interrupted: proper exercise discretion in the case, should be re- instruction in this perfectly familiar with “I am by the one fused, asked side put it and I want to Government, Nor did other. I do no such will record that justify here, argument seek to place, thing. it obiter In the first on a waiver instruction place, fusal dicta; in the second it Rather, theory. it defended it it unless I will not so and do not proper ground refusal was a Appeals that it be demands There is no discretion. ercise «done.” on the determina- is defended court’s for this record right out waiver courts should seek of waiver. tion waiver none To construe those con- where exists. be one instruction this; against rights circumstances of of which out silence waiver stitutional pre- of the law" indulge every is to weaken the fabric reasonable “courts only context, Zerbst, supra; but in other in this sumption,” Johnson concept right in which the of waiver to the however, fundamental context is, charge applicable. may be justice criminal where a scheme

Case Details

Case Name: Ernest Tatum v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 6, 1957

Citation: 249 F.2d 129

Docket Number: 13354_1

Court Abbreviation: D.C. Cir.