260 F. 142 | 9th Cir. | 1919
Emma Pell Fetters and George Fetters, called defendants, were convicted for violation of section 12 of the act of May 18, 1917 (40 S'tat. 82, c. 15 [Comp. St. 1918, § 2019a]), known as the Selective Draft Act, for having unlawfully sold whisky and champagne to a member of the military forces of the United States while in uniform, one B. E. Cranfill, apprentice seaman, then and there doing special duty for the Naval Intelligence Branch at San Francisco. By writ of error the case is brought to this court.
Fetters and his wife kept a hotel, dance hall, and barroom. There was evidence that, prior to the time laid in the indictment, numerous complaints that liquor, was sold to men in uniform were made to the United States authorities and an investigation was ordered. One night m June, 1918, Cranfill, who was 'in uniform and in company with two men and a Mrs. Lewis and Miss Hughes, went to the dance hall. The evidence of the prosecution tended to show that Cranfill asked Mrs. Feiters if they could get some champagne; that Mrs. Fetter said she
Inasmuch as it was not contended that Fetters was present with Cranfill or the party at the time the liquors were ordered, the principal circumstances relied upon by the prosecution were that Mrs. Fetters went to the barroom and got a package from her husband, and that the package contained liquor. Fetters denied having sold liquor to men in uniform, and said that he had issued orders to his employés that no liquors were to be sold to men in uniform.
As against George Fetters we think it was prejudicial error to strike out his testimony as to what Mrs. Fetters told him when she went for the liquors. As the case developed, the effect of the ruling deprived him of his main defense, an honest belief on his part that the liquors were bought by order of Mrs. Lewis for her own use. Intrinsically the delivery of the liquors would have only an ambiguous significance, and he had a right to explain the transaction, and in so doing could testify to what was then and there said to him by the person who, according to his story, was the only one present when he packed or delivered the liquors. Whether such testimony was true or false is not for us to say; but that it was competent is clear to us. Tesney v. State, 77 Ala. 33.
The case against Mrs. Fetters is in a different attitude. She cannot predicate error upon the exclusion of the testimony of her husband as just referred to, because her intentions and honesty of belief in the transaction could not be proved by the testimony of her husband that
One of the witnesses called by the defendants testified, among other things, that she was the wife of one of the party and drank with the others. On cross-examination counsel for the government was permitted to inquire into the circumstances of the marriage of the witness in 1902, whether she had been divorced from a prior husband, and whether she had had any children by a former husband. Defendant objected, but the court overruled the objection, because the evidence had a bearing upon the question of the character of the witness. While we think that the examination was carried too far, still as the answers of the witness were clear and without evasion, and in no way reflected upon her character for truthfulness, and no attempt was made to contradict her-statements upon the matters objected to, there is no reason to believe that the rights of the defendant were prejudiced.
The instructions were fair, and sufficiently covered the issues in the case.
As against Emma Pell Fetters, the judgment must be affirmed. As against George Fetters,- it is reversed, and the cause remanded, with directions to grant him a new trial.
ROSS, Circuit Judge, concurs in the reversal of the judgment as to plaintiff in error George Fetters, and dissents from its affirmance against the plaintiff in error Emmá Pell Fetters.