*1 UNITED STATES. EWING v.
No. 8308. Appeals for the States Court
United Columbia. District of 1, 1942. Dec.
Decided March
Writ Certiorari Denied See 63 S.Ct. 87 L.Ed. —. *2 Washington, Mr. Laughlin, of James J. C., appellant.
D. for Mr. Murray, Atty., Charles B. Asst. U. S. Washington, C., D. with whom Mr. Curran, Edward Atty., M. S. Mr. U. Fihelly, Atty., W. Asst. S. and Mr. U. John Burke, Atty., all of Asst. U. S. P. John brief, Washington, C., D. appellee. GRONER, Justice, and Before Chief RUTLEDGE, EDGERTON Associate- Justices.
RUTLEDGE, Associate Justice. Appellant was convicted and sentenced rape. appeal complains On that: (1) The evidence is insufficient to sustain verdict; (2) adequately he was represented trial; (3) counsel at his there was misconduct in the dis- assistant witness; attorney’s interrogation trict (4) there error Govern- ment’s wit- cross-examination of defense ness, Chamberlin, permitting testimony. rebuttal her evidence necessary only as is will be recited to so far make contentions clear. argument I. The does sustain the verdict to take two seems (1) that it does not show forms: witness’' complaining act consent; (2) that there was no sufficient story. of her It is valid in corroboration respect. neither nineteen, . girl, young woman Washington Utah who had come from. occurrence, gave within two weeks only the- direct the details its commission. She act years old, appellant, fifty-five testified occupying, the bedroom she was broke into retired, she act after and committed the against such could offer resistance put until, threats which through force and life, in fear her he overcame her accomplished purpose. his resistance were, His defense consented, that she the entire intercourse, incident, including the never place. Throughout the trial and had taken long hearings on motion held his denial a new trial he maintained having relations with the de girl Notwithstanding mortal fear. into, tails, that he story inherently had broken entered or been incred was not believed, her room when she at- to sus said the ible was sufficient story tack implicit occurred. His that she finding hers were tain the verdict’s *3 directly contradictory respect, put in oc and was in the incident fear and that supported by each was respects circumstantial said it did. evi- curred in she other as dence, his by cases, also the from testimony especially of There older ones are Chamberlin, apartment in require whose room jurisdictions, the which seem physical located. to the victim’s ultimate resistance powers order conviction for to sustain aspect inYet one the argument longer in But the is no this crime.1 law appeal that the evidence does not sus stage. this last-ditch Whatever tain conviction is that the girl consented. times, it is generally have been defense, this had been the If there that not shown when settled now consent is might evidence brought which have about discloses is over the evidence resistance verdict a to that effect. But such a view put woman in by come threats which the the by of event was contradicted both harm, bodily by grave fear of death or prosecutrix’ testimony by appellant’s. degree of combined with some His denial that event occurred physical of reading From a careful force.2 wholly any theory inconsistent with of appendix and the volumi printed both hand, testimony consent. On the other her record, no doubt the original nous we have and the circumstantial supporting evidence in this case was sufficient to make clearly sufficient, believed, if crime, including elements out all the show the intercourse occurred and took necessary want and use of of consent place will, force and her girl’s threats to overcome the force and sense that her resistance was overcome in To hold otherwise would resistance. physical put force and threats which her in jury’s vade function. details, of her fear life. Some them, ample she related indicated that resistance There was corrobora II. might vigor testimony have been more complaining sustained and witness’ tion of the ous, complaint alarm and prompt. States, more rule of Kidwell United under the v. They persuasive would have been 1912, App.D.C. more that case this 566. 38 factually appellant if the defense had that a con “We are aware court stated: consent, though even in that case the be sustained this offense will viction for party issue have jury testimony injured would been for to re upon effect, held, was, As it solve. their adverse But where the courts so alone. any, upon pri parties surrounding Government’s case went circumstances marily complaining point witness’ cred at time were such as ibility, accused, or, particularly least, more to whether the probable guilt of the testimony force and which she indirectly threats said were used corroborate had effect of putting prosecutrix.”3 page 38 573. 1 Tomlinson, 719; 1861, 898, Cf. State v. 11 Iowa 169 Va. 194 S.E. State v. authority quoting 401, allowing 1938, 71, 591; Shults, 85 P.2d 43 N.M. Ellison, 428, 1914, three eases: “When narcotics have 19 N.M. 144 State v. many administered, 10; 1920, Armijo, when are en P. State v. N.M. gaged against 553; female, 666, Territory, Mares v. P. strong go ar man attacks one who has not 10 N.M. 65 P. age puberty,” necessity rived at and anoth of corroboration and the insuf- adding helpless ficiency particular er as until circumstantial “resistance differing respects fatigue,” important evidence, faints female and the purpose. here, of instant murder. dread See also from that shown for this State Hoffman, 1938, 228 v. N. Wis. Miller, (1934) Criminal Law upon 357, 359, W. re Wharton, (12th 1932) Criminal Law Ed. recognized lies, where court that “fear bodily great harm,” of death “fear injury,” obviously personal Appellant’s great “fear ‘so contention is un- overpowers tenable, re the Kidwell is distin- dares case ” nullify sist,’ respect etc., guishable one, consent, from this would necessity sufficiency corroboration, facts insufficient found the show the prosecutrix of such fear. Other in that case was existence authorities because age cited, Commonwealth, Jordan under the consent. Appellant’s argument requests in terms rested and questioned might also have been again “inquire regarded we into whole as corroborative to some extent. theory necessity of the effect, of corroboration” Medical girl evidence established that the the rule stated in the had recently reverse intercourse for the first Kidwell substituting one which re- time and period within jury such that the quires prose- “direct corroboration could find night ques it occurred on the tion, cutrix.” If “direct corroboration” Lyles cf. States, supra. v. United eyewitness, meant the Physical exhibits and medical result would cases that convic- be most presence established the of blood and except upon tion could not spermatazoa be had the de- upon clothing girl wore fendant’s confession. If it means less than night retired; after she and several that, it is hard how it could relate to see witnesses with whom she discussed the *4 anything than circumstantial other evi- matter day following the to testified supports prosecutrix’ story, dence which the her unusually distraught nervous and con and requires. this is what Kidwell case the dition. There an entire absence aphorism Lord Hale’s concerning these proof part charge on her motive to accusations still son, and is valid for that rea- appellant with offense the the other than declares, as the case Kidwell “it is reason she gave; and statements made duty of to carefully safeguard the court police, preliminary first then at to the every pro- the defendant stage at hearing, finally and the trial were essen ceeding, legal and to trial secure him a substantially tially Nor consistent. respects.” corroboration, Hence in the by vigorous they cross-exam were shaken sense that there must be circumstances circumstances, which need ination. Other proof support prosecu- which tend to corroborated her testi not be set forth also story, trix’ required, and for lack of it mony. Kidwell’s for conviction one offense was circumstances were against oth As reversed. stated, ers, which tended to we safeguard But by appellant’s version, the defendant re that corroborate quiring woman, corroboration this sense is one he had not intercourse with thing. To throw around him a wall of and still the view that the inter others immunity requiring But, of an course her consent. was had with eyewitness evidence,” or “direct which is regardless inconsistency, entire of this circumstantial, in support more than prosecutrix’ story, appellant’s advantage evidence tending is another. areWe proved deprive circumstances not did stated in satisfied the rule that Kid- support story of girl’s corroborative decision well is one which should not be conflict merely created with effect. It them. overthrown.4 rule, Kid prevailing stated in Within States, well there was sufficient v. United We shall not state the corroborating corroboration. They circumstances in detail. are found represented Appellant III. proof, things, among ap that attorneys, including his son his trial five pellant present in Miss Chamberlin’s appearance. formal The who did enter apartment visiting prose with and the chief counsel was and is brief concedes shortly crucial time, cutrix spent before the ability lawyer and distinction” civil “a night either the living room principal associate “is an that hall; inor a room across the that force lawyer many years with expert criminal door, bedroom was used a new break in the making of these experience.” In concessions view already lock, defective present counsel, who came agree with explain we with no other evidence to the new a only when the motion for condition; into case complaint was made to. that “with pending, such trial was hours, new Roney friends within twelve cf. allega make the array of States, an. counsel App.D.C. 533, 535, 1915, 43 United adequately was not twenty-four, [appellant] tion that Lyles police within cf. seem to under represented come would States, v. United ‘Strange it or Not’ or heading ‘Believe shortly by appel and was followed ” Perhaps this should suffice as it Seems.’ lant’s arrest confrontation with dispose of the contention. prosecutrix. His conduct first ar- (11th 1935) (1940) Wharten, Wigmore, 2061-62; Evidence ed. Criminal Evidence §§
§§
supporting
lin,
important
few
most
But much made of
exceptions
testimony.
considera-
defendant’s
Similar
objections were
and fewer
recollection,
tions,
credibility,
going
of the trial.
taken in the course
incompe-
effect,
or avoid-
the creation
general
not one of
cumulative
contention is
defense,
attorneys con-
case for the
that the
ance of conflict
tence.
is rather
incompetently.
matters critical to
value
ducted
this case
presented questions
testimony,
a witness’
presented at
argument was
The same
judgment
coun-
exercise
length upon
new
the motion
great
found,
each
sel.
court
court,
inexhaustible
with
trial. The trial
applied
any basis for
this had
patience,
argument
heard
negligently
believing
had been done
motion, ad-
deciding
In
concerning it.
incompetently.
appellant,
versely
court
filed
which deals
detail
memorandum
record,
reading
From our
we
specifications
gives
principal
argument
incompetence comes
think the
concluding
the court’s reasons for
down to
much more than
incompetence.
case
show
counsel,
hindsight
aided
afforded
appeared
had not
counsel
leading
verdict,
would not have
adverse
of the Government’s
informed co-counsel
respects specified
tried
case in the
certain
available
make
*5
offer
tried,
the
of
was
and that
sum total
defense, and the
came out in co-
the
judgment
differences in
to in-
amounts
argument
jury.
counsel’s
the
Correc-
to
competence
part
on the
trial
attor-
prop-
immediately. The
tion followed
court
neys.
against
view,
As
this
we are con-
erly
“some
characterized the incident as
vinced,
court,
appel-
as was the trial
kind,
slip of
to
real
going
this
not
the
represented throughout
lant was
his trial
case,”
merits of
found it incon-
the
and
preparation
diligently,
and in
for it
as-
ceivable
such an
should
occurrence
siduously
competently.
respect
and
this
prejudicial
have
effect. Another
instance
trial
statement,
may
court’s
be
the
stipulation
making
con-
involved the
finding,
prior
as a
was: “At no time
taken
cerning
evidence,
lengthy,
medical
too
with
trial
the course of the
was
to or
circumstances
the
which induced its mak-
Court,
representation
any
made to the
nor
ing,
stipulation
The
to delineate here.
lead the
anything
did
occur which would
was,
probably
certainly
respect
in one
and
believe, that
to
defendant con-
Court
the
others,
accused,
highly
beneficial to the
them,
counsel,
his
or
sidered
of
unsatis-
regarded
They
and his
it.
counsel so
competent.”
factory
highly
or
it,
use of
in evidence and
both
effective
in
attorneys.
Appellant selected his own
The
argument.
was
It
made with the court’s
incompetence
charge of
was not made un-
permission,
appel-
objection
without
the
original
the verdict and the
motion
til after
presented
lant when it
was
evidence
filed,
new trial had been
also after
for a
counsel,
represented
according to
their present counsel
the case.
entered
Chief
to
judgment concerning
was
sound
what
represent
trial continued
counsel
urged
his
It
also that
advantage.
was
early
appellant
stages
of
new
incompetence appeared
the failure
from
withdrew,
proceedings. When he
persons
call
for
certain
as witnesses
request,
at his own
the court’s
was
with
In each instance
court
the defense.
expressed
permission,
found,
stipulation,
regarding
as it
appellant
attor-
wishes
his
properly
was
matter
one
for
ney.
judgment and that
of counsels’
exercise
shown,
incompetence is
Finally,
as is
finding
basis
negligence
there was
for
concern-
by the existence of error
argued,
incompetence
In one
what
did.
upon
relied
specific
now
matters
ing
wit-
using
counsel
case
ness,
refrained
because,
first,
appears,
reversal,
later
for
man,
he
aged
an
and infirm
because
exist;
second,
because
do
errors
given
on different
had
different versions
specific error
presence
is not
mere
occasions,
of details was
his recollection
incompetence.
to show
We
in itself
enough
uncertain,
judg-
wavering
and counsel’s
the trial
differing from
for
no basis
find
upon
not be relied
ment was that
could
appellant’s
that none
conclusion
court’s
specifications
upon
stand as
the witness
give them
charge against
supports this
An-
the trial.
related them before
he had
attorneys.
put
was
on because
(cid:127)
hearing on
the long
Near the close
testimony would have contradicted
charge
trial,
new
motion
respect
of Miss Chamber-
inadequate representation
purpose
says
took a sudden
The
Government
entirely
hearings
question
had
personal
new turn.
and social
to disclose
unduly
ap-
been
futile
Long
extended.
but
relations
between the witness
expeditions
newly
pellant
purposes
impeaching
in search
discovered
hearing
credibility.
been made. The
had former’s
United
Cf. Alford v.
States,
been
continued
to allow some
over
over
282 U.S.
51 S.Ct.
supposed
All
new lead to be followed out.
may
75 L.Ed.
have
question
624. The
failed.
final con-
When after
this a
propriety
purpose,
been of doubtful
for this
granted
tinuance had
background
the absence
of factual
special, personal
but with the
urging,
foundation which
been made or
could have
hearings
attempted
court’s
insistence
inquiries
directed
the re-
end, appellant’s
brought
by way
affidavit was
lations of the
men but less effective
Appel-
filed. So were
However,
counteraffidavits.
of innuendo.
view of
lant
negative
then insisted
those
cross-examining
response
on
witness’
cor-
later
who
respect
made them.
court
reluctant
appellant,
roboration
further,
hearings
extend the
because it is difficult to see how there
could
appellant’s plea
took under
advisement
substantial harm
asking
from the mere
question
made,
whether
questions.
objection
determine
No
upon
matter
probably
affidavits alone or to hear
reason
coun-
the obvious
testimony.
preferred having
sitting
further oral
At the next
sel
the witness answer
brought
hearings
possibly
the court
creating
to a close to
an unfavorable im-
taking
pression
response
testimony,
by shutting
through
further
and an-
off
objection.
up-
nounced its
adverse
ruling
have been considered
trial,
too,
the motion
new
having
might
true,
for a
de-
as well
have been
that the
question
upon
termined
presented
question
last
answered would have
Appellant assigns
upon
the affidavits
boomerang
prosecution.
alone.
effect
*6
error,
once,
but as
dropped
a violation of con- At
rate the matter was
right.
stitutional
jury
and it cannot be assumed
would ac-
the
cept
denied,
question,
the
twice
as evidence
authority
There is
that
issues of by
contrary
innuendo
the
to
denial. The
presented upon
a motion for a new colloquy
sufficiently important,
was not
be determined on affidavits alone.5 light
answers,
setting
and the
to
whether,
We need not decide
new
the
the
make
court’s failure to intervene of
made,
charge
timely
had been
this would its own motion ground for reversal.
sufficient,
have been
though we do not
V. Both sides concede the most sub-
intimate that it would not be.
In view of
stantial issue
from the Government’s
arises
circumstances,
the
especially
and
the
cross-examination of Miss
and
Chamberlin
charge
fact that
came
the
at the end of the
testimony by
the rebuttal of
com-
her
the
already
hearings,
extended
it was not an
plaining witness’ mother.
abuse of discretion
the court
to deter
Appellant
Miss
and
Chamberlin were
upon
mine the matter
the affidavits operators
building
joint
owners and
more.
apartment
her
was
Her
in which
located.
Appellant
urges
IV.
next
that
was used
living
business
room
also for
prose
misconduct
there was
the
an office in
build-
purposes,
operating
the
attorneys
asking
cuting
the
wit
defense
ing.
was the bedroom where
Adjoining it
following questions
ness Simmons the
appellant
occurred. Both
the attack
and
upon cross-examination:
Washington
came
Chamberlin
to
Miss
October, Saturday
25th of
“O. On the
originally from Utah about 1933.
and
She
October, Saturday
the 25th of
before
old
prosecutrix’ mother were
friends.
particular
that
is
occurrence
he
tried
being
here about two
arrived
weeks be-
girl
here,
you,
say
didn’t
defendant
to
Previously
the attack.
her mother
fore
whisky
get
go
some
and
‘Let’s
to the
expect
Miss
her
written
Chamberlin
had
get
girls
and
some of
and
Whitestone
came, Miss
she
Chamberlin
arrival. When
No,
party tonight’?
A.
sir.
occupy
tem-
her to
her bedroom
allowed
continued
say
that?
Miss
anything
porarily.
He didn’t
like
Chamberlin
*0.
room,
"No,
living
sleeping there on a
sir.”
A.
use
States,
9 Cir.
States,
Chetkovitch United
Hillman
9 Cir.
v. United
denied, 1912,
cert.
prejudice,
England
im-
better considered
the fact it
collateral is
Hoagland
Canfield, C.C.S.D.N.Y.1908,
(3d
Wigmore,
1940)
Evidence
Ed.
*8
3;
Wigmore
1003,
170;
146,
cited
note
160 F.
948
§
and authorities
3
ff.
Warren,
Thompson-Starrett
1912,
v.
Co.
9
Schindler,
United States v.
C.C.S.D.N.
315;
App.D.C. 310,
cf. Martin
38
v.
549; Hoagland
Y.1880,
547,
10 F.
v.
U.S.App.D.C.
States, 1942, 75
399
United
146,
Canfield, C.C.S.D.N.Y.1908,
160 F.
fiál party proposed by be if more American cases15has been reduced to admissible enough idiosyncratic calling This him?” These are accurate definite and is, form. less it, provide they go; they as far as omit to Wigmore phrases cases of for but important clearly evidence, matter for an class of contradiction extrinsic “Could admissible, namely, fact, predicated, relating facts which as to error is bias, specific corruption, any pur- de- have or other been shown evidence for merely ?”; is pose ficiencies of the witness. It independently contradiction “part case” that self-contradiction, matters cases which are a for “Could self.-contradiction, fact, subject prior which be as to self-contradic- oth- predicated, but which would have been any tion is in evi- matter have been shown simple any erwise admissible in evidence. The purpose independently dence (in language test is of Chief Baron (3d self-contradiction?” Evidence “a matter Pollock) whether 1940) Ed. it concerns part your which would be allowed on case, In the we think it is im- independently prove in evidence” is material which formulations self-contradiction, e. if witness —i. applied, the facts which concerning since subject. Wigmore said nothing on the complaining witness’ mother testified 1020.17 either, proven could have been under part to make out of the Government’s case simple test” to Applying “the testified, in chief before Miss Chamberlin proved case, it clear the facts seems afterward, true, facts, but because those impeaching witness could have the shown, impeach veracity gen- went to in contradiction or self-con either erally credibility in relation to mat- some Chamberlin, time tradiction of Miss directly issues, ter not involved in the after she testified on direct examination. destroy everything she had said as a wit- part a Govern Before then or as ness in behalf and as well to in chief have been ment’s case would contradict his own as to the most objectionable hearsay. fallacy in possible crucial case.16 But facts appellant’s contention is he would de objections grounds, on technical noted “collateral,” is termine whether matter later, might the impeaching witness cross-examining party therefore prove related, what been called to even answer, solely by the witness’ bound though Miss Chamberlin had not it would or would to whether reference However, questioned about since the it. part party’s of that havé been admissible matter, actually question as a in the arose words, in chief. he would case self-contradiction, place, the latter first ignore the fact that the witness has testi properly ap- formulation of the is the That makes all the difference fied. plicable one. facts, admissible both world. It makes clear, speaks application To make the concerning which the speak, necessary point out common miscon- which he does not ception, indulges. impeachment purposes. The mere fact the “Moreover, impeachment has as follows : offered for does not been stated matter is Nor the fact rule is misunderstood. are it “collateral.” does often Courts make speaks concerning admissibility in phrasing found the test of the witness alone way: goes cross-examining not so. But “Would the it make it party part directly prove challenge be entitled to it as the truth of what plea?”, crucial or his witness has said matters tending to establish trial, by process question, to material to issues “Whether the answer *9 proposed contradicted, can it which to be would of reason be held “collateral.” If it tending prove far be a matter mitted to this fact in this connected it as to with way, particular which, particular case, if it would have amounted answered in a attempt impeach part of witness’ to than an to her would contradict more upon point. testimony'.” a collateral It 15 Wigmore in have extended to facts which ma See authorities cited would § terially prosecutrix’s § corroborated testi note note mony”. States, 1912, Kidwell See v. United author notes another mis- 571: it is true The also “While nothing conception, said it is immaterial whether or not on exam- prosecutrix sexual with can be collateral had intercourse ination chief and defendant, can men otherthan if was therefore self-contradiction be had of defendant guilty, yet, any part if also evidence had been ad of it. (cid:127)642 character, fact, is of that either became an assertion of effective is admissible every specific by way way of contradict almost crucial cross-examination or ulti- contradiction, regard of to which had and without to whether she testified mate jury the witness and made conclusion of fact intended has been asked has it, answer unless over- to draw from some them. weening it out. throws of exclusion questions, on It is both true and Miss facts involved are of that cross-examination here Chamberlin’s prosecutrix’ testified, interrogation character. Miss Chamberlin as mother, terms, shown, in the one her framed in has been of own knowl were facts you thought” was edge, believed, required jury [appellant of “if if other, And guilty] guilty. According to find defendant of not belief. facts, appellant strenuously the ef her statement contends that of she was apartment merely to during period permitting fect answer was whole prove prosecutrix opinion concern said oc Miss Chamberlin’s the attack de ing cide, jury curred was to when the ultimate issue the afterward latter appellant invading claimed then thus its function. she and use bathroom, simple of the room, located off answer is for one situated living was, was, itself; or claimed she appellant of that room Chamberlin were apartment, knowledge was not belief and synonymous. facts and could not expressing there without her She knowledge have any period; law an ultimate mere conclusion of this nor could the personal attack or incidents conclusion of fact unrelated to other have occurred place. her knowledge them. taken knowing of denied all had She further, they up, place. testimony, took Her Without we extending matter summed append margin authorities that defendant was citation of guilty. other conclusion which sustain these views.18 No could be drawn from it if it was believed. It be added that if various should When, this, proposed after it was statements attributed Miss Chamberlin prove she treated as distinct declarations had declared before to be whole, shortly parts single after the offense that rather than as statement, defendant was chair,” guilty, proof facing “He is the electric tendered anything no than “collateral.” It was a amounts to more an assertion knife thrust testimony, charged whole of had been with a crime effective to tear shreds, might im- penalty it to if believed. which the death have had posed, effect. Until Miss and of reason for the conclud- Chamberlin testified declaration, statement “I on his ing got this would have open to force, directly does con- objection, probative want of side.” not for The latter hearsay possibly upon but as the facts to which Miss Chamber- tradict chief, the ex- grounds policy. testified But when lin had she was pression guilt, eyewitness, called in testified almost as an belief sense, credibility negative way affecting most material issue, objection in his For latter disappeared. showing facts bias favor. however, ad- purpose, the statement was Both she and impeaching witness be- within the rule self-contradic- came available for appellant missible cross-examination. The above, tion, longer directly within com- preju- was no in danger of stated monly accepted impeachment. statements rules dice court unsworn made out of words, opportunity with even Miss Chamberlin test their truth other as a on cross- the advocate’sart of search. nothing Nor was said examination remark, subject longer concerning having made objection statement was, so proof best that she had done Finally, that was not the evidence. admissible,19 light of. especially in the by Miss more setting framed Chamberlin’s testimony, relations business and social it lost character as a mere her close light weight what expression opinion, appellant,20 the witness’ throw
Baker, v. 469, 11 W. People, R. R. State Wigmore 1927, S.Ct. 1880, v. v. 569, 318 Matheson, Converse, 1891, 80 N.Y. 1041 35 L.Ed. Mo. ; 542, Delaware 364; 213; Mayer 300 S.W. 130 Iowa 139 U.S. State L. & v. 8 wealth, 289. 20 19 Wigmore Ann.Cas. Id. § 3 103 N.W. 949; *10 430; 135 § 1022. Va. Note Rasnake 1930, Am.St.Rep. 427, 115 v. Common 66 A.L.R. S.E. 543;
643
testimony. Showing another,
party
given
should
bias in
be
whether he has stated
differing
many
analogous
guilty.
such
situations
circumstances
may
others,
interest
from that
showing
presented
of the witness in
here such evidence
immaterial,
purpose.
prejudicial
for this
fore,
highly
there- not be
It is
admissible.
important
whether
proving
the statements attributed to when the
it is
ap
Miss
regarded separately
Chamberlin
one
be
or
the issues to be decided or
as merely parts
single
parently
high credibility.
In the
whole.
Our
assertion,
latter
facing ruling
case the
“He is
is limited to the facts of this
chair,”
situations,
the electric
is at most a
the circum
reiteration
similar
where
statement, “Yes,
I believe he is
that the declaration takes
stances are such
guilty.”
fact or
on the character of a statement of
of
nutshell,
merely
in a
facts
rather
mayWe
add also that
there are two
opinion
conclusion
that of the witness’
or
principal reasons
underlie
the limita
drawn
facts of which he does
imposed upon
tions
the admission
col
partial
knowledge
or has
such
lateral matters. One is to avoid confusion
opinion
knowledge that
element of
of the issues and undue extension of the
outweighs
factual effect
the statem
essentially
trial. This is
a matter of ad
ent.24
policy
ministrative
and concentration of
said,
ap-
Finally,
it
from what has
attention. The
play,
other is a rule of fair
pears
charge
that there was
basis for the
no
when the matter is one of self-contradic
incompetence
at-
made
the trial
tion, to give the witness
warning
order
assign-
these
torneys
connection with
that he
be able to meet without sur
The record shows
alleged
ments of
error.
prise questions concerning matters not
they regarded
inquiries
prop-
anticipated
possible, explain
if
them.21
er,
objection. They
and therefore made no
apply except
latter does not
when the
law,
investigated
the result has
inquiry is
involving
one
self-contradict
judgment.
justified their
ion.22 In addition to these two a third has
mentioned
times,
judgment
conviction
being
error,
no
must
There
perjury
could not
secured in
be
relation be affirmed.
clearly
to matters
collateral
irrelevant.23
GRONER,
J., concurring in the re-
major policies
These are the
C.
underlying the
agreement
that is
rule. No one of
sult.
I am
them would call for the
opinion
Judge Rutledge,
save
exclusion of the evidence now
said in the
question.
respect.
respect, my
In that
dis-
Miss Chamberlin could
not have been
sur
prised by
inquiries,
can
stated in a few words.
agreement
be
nor did she exhibit
any.
to have
She admitted the
I think it was error
allowed wit-
part
interview and a
that,
testify
her,
statement attributed to
ness for the Government
denying
inquiries
the remainder.
in a
witnesses,
with one
defendant’s
could
conversation
expressed
issues,
have confused the
the latter had
because
re
very
guilty
lated
already opinion
heart
that the defendant was
of the facts
for which he was on
When
evidence and Miss
the crime
trial.
Chamberlin’s own
previous testimony.
Chamberlin,
principal
defendant’s
express
We need not
opinion
witness,
the Dis-
per
was on cross-examination
matter of
whether,
Apart
is,
a visit
jury.
(and
Attorney
from that
perhaps,
asked
trict
Utah,
longer major
the mother of
consideration),
she had called on
none of
to
the
policies
conversed with her.
underlying
prosecutrix,
requiring the exclu
replied
was then asked:
sion of collateral matter
had. She
binding
She
party examining not
to contradict
Now,
conversation,
in that
“Question:
regarding
requires
answers
exclu
you thought
ask
Mrs.
C...
subject
sion of this
matter.
you say
and didn’t
Yes ?
guilty,
Ewing was
No, she didn’t.”
Answer:
necessary.
of caution is
A word
It is not
intended
close of defendant’s evidence
whenever a witness At
called
sworn
party may
has
behalf of a
and was
testified
Mrs.
C...
impeached by inquiring, either
himof
or of asked:
United States
Y.1880,
21 Wigmore
Id.