No. 3314 | D.C. Cir. | Apr 5, 1920
Lead Opinion
Appellant, defendant below, was convicted in the Supreme Court of the District under two counts of an indictment, the first of which charged that on a certain day he transported, caused to be transported, and aided and assisted in transporting, in interstate commerce for the purpose of prostitution, a woman by the name of Sue McLain; the second count being a duplicate of the first, except that the name of the woman was Blanche Phillips. The sentence was 5 years in the penitentiary.
The defendant was 20 years of age and the driver of an automobile, receiving a commission on its earnings in addition Jo wages. The evidence for the government tended to show that he aided the two
A more serious question is involved in the next contention of defendant, based upon his request for an instruction that, if the jury should find that the. women named in the indictment were accomplices, they then would have to inquire whether or not there was corroborating evidence, and for another instruction that tire testimony-of these women should not be taken as that of ordinary witnesses, but “ought to be received with suspicion, and with the very greatest care and caution.” These prayers were refused, and the only instruction. given in this connection was the following:
“Now a general comment in regard to the witnesses. You have seen the witnesses on the stand, and you have heard what they have had to say; you have noticed their manner of testifying, and you have heard more or less about what hind of people they are. All these things you should also heep in mind when you are weighing the testimony of any witness, in order to determine what credibility it is entitled to.”
“These statutes crystallize in a rule of positive law what was already a rule of practice, which to greater or less extent courts regarded themselves bound to observe; for it has long been the custom, both in England and America, for the courts, not only to caution the jury as to the danger of acting upon the unsupported testimony of an accomplice, but to advise them not to convict, unless there is some corroborating evidence.” 1 R. C. L. p. 167.
For more than 40 years in this jurisdiction it has been the practice to safeguard the interests of accused in prosecutions for serious of
“That the testimony of accomplices is admitted from necessity, it being-often impossible to bring the principal offenders to .instico, without having recourse to such evidence; and the jury may, if they see fit, act upon the evidence of an accomplice, even in a capital case, without any confirmation of his statement. * * * The court advises the jury that, if they shall believe from the evidence that Johnson [a witness] was an accomplice in the murder, the jury should not convict the prisoners upon the testimony of Johnson alono and without corroboration.”
In Maxey v. U. S., 30 App. D. C. 63, the jury had been instructed that—
“The general rule is that, where an accomplice testifies in a case, his or her testimony is to he taken with great caution, because of the guilt which he has to admit himself as against himself. And the rule is that the jury are to be cautioned not to find defendants guilty upon the uncorroborated testimony of accomplices. They may do so, but the rule is for the court to caution them * * * not to do that without corroborating testimony.”
In Thompson v. U. S., 30 App. D. C. 352, 12 Ann. Cas. 1004, a woman upon whom an abortion had been committed was a' witness, and the defendant insisted that she was an accomplice. The trial court rejected this contention, but instructed the jury that—
“While she is not an accomplice, strictly speaking, inasmuch as, from her own evidence, she morally implicates herself in the act, the jury should consider that circumstance as bearing on her credibility.”
This court found she was not an accomplice and that—
“The instruction in regard to the credibility of the witness was as much as the defendant had a right to expect.”
The latest expression of the Supreme Court of the United States upon this subject is to be found in Caminetti v. U. S., 242 U.S. 470" court="SCOTUS" date_filed="1917-01-22" href="https://app.midpage.ai/document/caminetti-v-united-states-98854?utm_source=webapp" opinion_id="98854">242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168. There the trial court had been asked to instruct the jury that certain witnesses were accomplices, a controverted question. The court referred to its decision in Holmgren v. U. S., 217 U.S. 509" court="SCOTUS" date_filed="1910-05-16" href="https://app.midpage.ai/document/holmgren-v-united-states-97255?utm_source=webapp" opinion_id="97255">217 U. S. 509, 30 Sup. Ct. 588, 54 L. Ed. 861" court="SCOTUS" date_filed="1910-05-16" href="https://app.midpage.ai/document/holmgren-v-united-states-97255?utm_source=webapp" opinion_id="97255">54 L. Ed. 861, 19 Ann. Cas. 778, where the trial court had been asked, in effect, to rule as matter of law that a witness was an accomplice/and the Supreme Court said;
“The reguest did not properly state the law, as it assumed that Werta [a witness] was an accomplice, a conclusion which was controverted, and against which the jury might have found in the light of the testimony. It is undoubtedly the better practice for courts to caution juries against too much reliance upon the testimony of accomplices, and to require corroborating testimony before giving credence to them. But no such charge was asked to Be presented to the jury by any proper request in the case, and the refusal to grant the one asked for was not error.”
It thus will be seen that, while the Supreme Court recognizes that there is no absolute rule of law preventing convictions upon the testi
The question which the defendant sought to have brought to the attention of the jury, presenting a material, if not vital, issue in the case, was not even mentioned. Had the court defined an accomplice, and brought sharply to the attention of the jury the character of the government’s testimony against the defendant, it cannot be doubted that his counsel would have been in a better position to present his case to the jury, and who-may say that the point of view of the jury might not have been different. While the request included only two of the witnesses, it was sufficient to bring to the attention of the court the fact that some of the witnesses, at least, might be considered accomplices, and hence that the jury should be cautioned and advised concerning such testimony. When we come to consider that in many jurisdictions it is a positive rule of law that no conviction may be had upon the uncorroborated testimony of an accomplice, the importance of the rule in this and other jurisdictions, requiring caution and advice in this connection, is apparent. The jury may convict without corroborating evidence, but in a case like the present the accused is entitled to have the court first caution and advise the jury.
“The contention that proper objections were not made, and proper exceptions were not taken, to permit the consideration in this court oí the issues which have been discussed, has not escaped attention, hut it fails to convince. Hall v. United States, 150 U.S. 76" court="SCOTUS" date_filed="1893-10-30" href="https://app.midpage.ai/document/hall-v-united-states-93679?utm_source=webapp" opinion_id="93679">150 U. S. 76, 80, 82, 14 Sup. Ct. 22, 37 L. Ed. 1003; Waldron v. Waldron, 156 II. S. 361, 380, 381, 382, 15 Sup. Ct. 383, 39 L. Ed. 453" court="SCOTUS" date_filed="1895-03-04" href="https://app.midpage.ai/document/waldron-v-waldron-94103?utm_source=webapp" opinion_id="94103">39 L. Ed. 453, And even ii it were tenable, this is a trial for an alleged crime, it involves the liberty of the citizen, and the fault in the trial is so radical that it may well be noticed and corrected by this court without objection, exception. or assignment. Wiborg v. United States, 163 U.S. 632" court="SCOTUS" date_filed="1896-05-25" href="https://app.midpage.ai/document/wiborg-v-united-states-94514?utm_source=webapp" opinion_id="94514">163 U. S. 632, 659, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289" court="SCOTUS" date_filed="1896-05-25" href="https://app.midpage.ai/document/wiborg-v-united-states-94514?utm_source=webapp" opinion_id="94514">41 L. Ed. 289; August v. United States, 257 F. 388" court="8th Cir." date_filed="1918-03-27" href="https://app.midpage.ai/document/august-v-united-states-8811565?utm_source=webapp" opinion_id="8811565">257 Fed. 388, 391, 393,-C. C. A. -.”
Believing that the defendant was not accorded the fair and impartial trial to which he was entitled, and that his interests may have been substantially affected, we are constrained to reverse the judgment and award a new trial. Surely, if it was the duty of the trial court to caution and advise the jury in the respects pointed out, and we are certain that it was, nothing short of a reversal of the judgment will save the defendant from the harm that may have resulted from the want of such caution and advice.
Judgment reversed, and case remanded, with instructions to grant a new trial.
Reversed, and new trial awarded.
Dissenting Opinion
(dissenting). I am constrained to dissent because in my judgment:
(a) The women were not accomplices. Hays v. United States, 231 F. 106" court="8th Cir." date_filed="1916-01-26" href="https://app.midpage.ai/document/hays-v-united-states-8798842?utm_source=webapp" opinion_id="8798842">231 Fed. 106, 110, 145 C. C. A. 294; Diggs v. United States, 220 F. 545" court="9th Cir." date_filed="1915-03-18" href="https://app.midpage.ai/document/diggs-v-united-states-8794602?utm_source=webapp" opinion_id="8794602">220 Fed. 545, 553, 136 C. C. A. 147; United States v. Holte, 236 U.S. 140" court="SCOTUS" date_filed="1915-02-01" href="https://app.midpage.ai/document/united-states-v-holte-98351?utm_source=webapp" opinion_id="98351">236 U. S. 140, 35 Sup. Ct. 271, 59 L. Ed. 504" court="SCOTUS" date_filed="1915-02-01" href="https://app.midpage.ai/document/united-states-v-holte-98351?utm_source=webapp" opinion_id="98351">59 L. Ed. 504, L. R. A. 1915D, 281. And, if they were,
(b) The refusal to give the requested instruction was not reversible error. Caminetti v. United States, 242 U.S. 470" court="SCOTUS" date_filed="1917-01-22" href="https://app.midpage.ai/document/caminetti-v-united-states-98854?utm_source=webapp" opinion_id="98854">242 U. S. 470, 37 Sup. Ct. 192, 61 L. Ed. 442" court="SCOTUS" date_filed="1917-01-22" href="https://app.midpage.ai/document/caminetti-v-united-states-98854?utm_source=webapp" opinion_id="98854">61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Holmgren v. United States, 217 U.S. 509" court="SCOTUS" date_filed="1910-05-16" href="https://app.midpage.ai/document/holmgren-v-united-states-97255?utm_source=webapp" opinion_id="97255">217 U. S. 509, 30 Sup. Ct. 588, 54 L. Ed. 861" court="SCOTUS" date_filed="1910-05-16" href="https://app.midpage.ai/document/holmgren-v-united-states-97255?utm_source=webapp" opinion_id="97255">54 L. Ed. 861, 19 Ann. Cas. 778; Wallace v. United States, 243 Fed. 301, 310, 156 C.C.A. 80" court="7th Cir." date_filed="1917-04-10" href="https://app.midpage.ai/document/wallace-v-united-states-8803886?utm_source=webapp" opinion_id="8803886">156 C. C. A. 80. These cases are all later than United States v. Neverson, 1 Mackey (12 D. C.) 152.