45 App. D.C. 27 | D.C. Cir. | 1916
delivered the opinion of the Court:
To avoid needless repetition, we will state the various assignments of error as we reach them, and will first consider the assignment relating to the failure of the members of the jury
At the close of the government’s case defendant moved that it be required to elect upon which of the two counts of the indictment a conviction would be claimed, which motion the court denied, saying: “You cannot require them to stand on one of several varying, methods of charging the same offense.” In his charge the learned trial justice directed attention to the fact that the first count charged that the property converted was money belonging to Erederick M. Smith, and that the third count charged that the property converted belonged to Smith and the other persons named, and stated what was fully understood and conceded, namely, that “the offense with which the defendant Eulton is charged represents one transaction.” The jury returned a verdict of guilty under both counts, whereupon
The second contention presents greater difficulties. If this money belonged to Smith individually, it could not have belonged to him and the other persons named. And yet the jury has found that it could and did. The court properly told the jury that the offense charged represented a single transaction, but the verdict of the jury convicts defendant of two. The government contends, first, that because a portion of the sum named in the indictment belonged to Smith and the remainder to the other persons named, defendant was rightfully convicted under both counts. There were seventeen persons, including Smith, in whom ownership was alleged. Therefore, under the government’s contention, defendant might have been convicted under seventeen counts, instead of two. This contention cannot be upheld. The indictment charged the embezzlement of a lump sum, and the proposition is too plain to admit of argument that if the jury had found that this sum belonged to Smith, such a finding negatived the possibility of ownership in anyone else. On the other hand, a finding that it belonged to Smith and the other persons named in the third count of the indictment negatived the averment in the first count that it belonged to Smith alone.
The government’s next contention is that, inasmuch as the sentence imposed was within the punishment prescribed for the crime charged in either of the two counts, the judgment should
During his argument to the jury Mr. Laws, an assistant district attorney, said: “Here is presented in this court room what purports to be a carbon copy of a letter written to Mr. Frederick M. Smith, Donnelly, Minnesota, dated November 4, 1913. * * * We objected to this when it first came out because we believed and we knew that it was a statement gotten up by this defendant.” Thereupon the following colloquy took place between respective counsel and the Court:
Mr. David: I object to that statement.
*43 Mr. Lambert: Counsel is undertaking to testify in this case.
Mr. Laws: I submit I have a right to argue that.
Mr. Lambert: Toil have not any right to state what you say you know as a fact.
The Court: No, not what you know; but you have a right to say what you think the reasonable inference is.
Mr. David: I ask that the jury be instructed to disregard what counsel has said.
Mr. Laws: They understood what I meant.
Mr. David: I ask for a ruling on that.
The Court: The court will say to the jury that counsel’s
belief is something that the jury have nothing to do with.
Mr. Lambert: It went further than that. He said “We know this,” and “We know that.”
The Court: Of course counsel cannot be very critical of the actual use of mere words in the English language. What the court says to the jury is — whether it is a belief or knowledge on the part of counsel — that here is a situation from which you as reasonable men will infer such a situation. That is all that the jury can consider in connection with counsel’s statement.
Thereupon Mr. Laws said: “Of course I was not in the office, and did not see him write that out a few days ago — .” At this point counsel for defendant interposed an objection, and moved that a juror be withdrawn. In overruling the motion the court said: “Of course, the jury are to consider that in all this argument, all counsel is doing is arguing the reasonableness of the proposition he advances, and that it is not based upon any knowledge he has, because he cannot have any.”
In our view, the above language was highly objectionable and prejudicial, and the action of the court fell short of the requirements of the situation. The letter to which counsel for the government referred, and which he stated to the jury he not only “believed” but “knew” had been recently gotten up by defendant for the purposes of the trial, had been introduced in evidence by the government itself. Upon what theory a party may introduce evidence generally, and then impeach it, has not been ex
As another trial of this case is probable, it is proper for us to state that in our view'the court committed error in failing to admit in evidence the copy of the above letter of November dth, 1913, when it was offered by defendant. Its materiality is of course conceded. Smith testified that “he had not received a letter of that kind;” that he would not be certain he had pre
The introduction of this letter by the government later, during defendant’s cross-examination, did not cure the above error. Defendant was entitled to have this vital piece of evidence go to the jury as a part of his defense. The question as to its authenticity was for the determination of the jury, but it was excluded by the court upon the theory that not even a prima facie case of mailing it had been made Oiit. And when we come to consider the subsequent attitude of the government concerning it, the error is still more apparent, for after encompassing its exclusion as evidence for the defendant, the government introduced it to contradict and prejudice him. Thus his shield was seized, beaten into a sword, and turned against him.
The defendant requested the court to instruct the jury that if they should find that he appropriated the money mentioned in the indictment to his own use, in the belief that Smith had consented or assented to his using the same, and that he did not at that time intend- wrongfully or fraudulently to convert it, then such appropriation was not embezzlement as charged, and no subsequent act of his would change the character of the
In Masters v. United States, 42 App. D. C. 350, Ann, Cas.
Under the instruction as given by the learned trial justice in the present case, the letter from the defendant to Smith on November 4, 1913, was practically withdrawn from the consideration of the jury, even though they should find that it actually was written and sent as testified to by the defendant and the witness Bennett, for the court specifically limited the jury to a determination of the question whether, some months prior to the recovery of this money by defendant, an arrangement had been entered into between the defendant and Smith, whereby the defendant became entitled to use the money. Not only this,
The next assignment of error relates to the refusal of the court to instruct the jury that if they believed, from the evidence in the case, that there was a conflict or inconsistency in the testimony 'of any witness or witnesses upon any material fact, and that, by reason of such conflict or inconsistency, they were not satisfied beyond reasonble doubt as to what the fact or truth of the matter was, they should give the benefit of such doubt to the defendant, and to the action of the court in cautioning the jury as to the testimony of the defendant. In his charge the learned trial justice, after telling the jury that if they should find that the defendant used the money without an agreement actually having been made with Smith they might find a fraudulent conversion, said that they should look to any interest the respective witnesses had in the trial or in its results. The court then said: “Where a witness has a direct personal interest in the result of the tidal, the temptation is strong to color, pervert, or withhold the facts - the law permits the defendant, at his own request, to testify in his own behalf. The defendant, Fulton, has availed himself of the privilege. His testimony is before you, and is to be considered along with the other evidence in the case. The deep personal interest which he may have in the result of the case should be considered by you in weighing his evidence, and in determining how far or to what extent it is worthy of credit.” No other witness was mentioned in ibis connection.
In the present case the determination of the question of the guilt or innocence of the defendant depended almost entirely upon whether the jury believed the defendant and his witness Bennett, or the complaining witness, Smith. It is said that the testimony of the defendant was inconsistent with his conduct, but no one can read this record without reaching the conclusion that the testimony of the witness Smith on its face is contradictory and unsatisfactory. If the statement contained in the letter of December 11, 1914, which he testified he wrote the defendant after consulting with his attorney in Minnesota, is to be accepted as true, he was himself apprehensive of trouble because of conduct which he apparently realized was full of inconsistencies. And yet the jury in 'effect were given to under
We think the promissory note which the defendant gave Smith on December 7, 1914-, should have been received in evidence, as bearing upon the question whether the relation between Smith and the defendant at the time was that of debtor and creditor, as claimed by defendant, or attorney and client, as claimed by Smith.
Some fault is found with the court’s charge concerning the burden of proof and the presumption of innocence. It is enough to say that there was a substantial compliance with the rule laid down in Agnew v. United States, 165 U. S. 36, 51, 41 L. ed. 624, 629, 17 Sup. Ct. Rep. 235, and in Holt v. United States, 218 U. S. 245, 253, 254, 54 L. ed. 1021, 1030, 1031, 31 Sup. Ct. Rep. 20, 20 Ann. Cas. 1138.
There are other assignments of error, but we have found them so devoid of merit as not to justify discussion.
The judgment must be reversed and the cause remanded for a new trial. Reversed and remanded.