*1 private of his to be resolved character sex- cause with doubts truthfully 636-637, him, against ual Kovacs testified id. at 87 S.Ct. life. Had might Macintosh, 666; past, well 283 about his v. granted.3 605, 626, 75 L.Ed. have 51 S.Ct. Immigra- also Tieri See Affirmed. Service, F. tion and Naturalization 1972). (2d And the false 2d Cir. upon
testimony a lack relied establish not ma- need be moral character of naturaliza-
terial to the final merits government
tion, e., need not i. show havq barred
that truthful answers would
granting
petition.
Petition
(3d
Haniatakis,
as was his court,
record that was before the district generatеs say least, large doubts
as to Kovacs” at the initial truthfulness
hearing. Since those doubts are to be against petitioner,
resolved the deni Tieri, supra.
al must stand. See pause
We note what we are not
holding. Petitioner is not denied
naturalization for his sexual activities
—but rather for his lack of un- candor
der oath. This is not a case like Laba-
dy, supra, applicant where the testified
truthfully prior acts, about homosexual
yet granted still was naturalization be- appealed Although 3. While the order be must to his cause. his ac- disastrous affirmed, sympathy ap- praised, we do note with some here if his tions cannot parently public exemplary ICovaes’ contentions that his rеcord since behavior con- peti- tinues, greater the 1962 arrest is unblemished. The exhibition of candor at a Labady might tion here was filed before the lead to a different later date well decison, may and Kovacs well have felt in his efforts to become a citizen. result admitting past proved would have *2 unsuccessful. State state courts was v.
Naughten,
P.2d
90 Adv.Or.
471
Eventually, Naughten
(App. 1970).
830
corpus
filed
for habeas
below,
appeals
court
now
petition.
the denial
trial,
judge,
In
court
state
Naughten’s
objection,1 instructed
jury
as follows:
“Every
presumed
speak
witness
is
presumption may
the truth.
This
by
ovеrcome
the manner
which the
testifies, by
witness
of his
nature
by
testimony,
her
or
evidence affect-
ing
character,
interest,
his or her
or
motives, by contradictory evidence, or
by presumption.”
Such an instruction has
almost uni
versally condemned. See United States
Birmingham,
(10th
v.
Reversed remanded. ing) : ORDER ON PETITION FOR robbing charged was REHEARING grocery store Mart drive-in original opinion The court amends its Portland, Oregon, August 17, on subject
in the case as follows: The at trial consisted evidence Livengood, testimоny of James R. of a footnote refere insertion store, testimony proprietor “objection,” nce after the word
* changes original opinion. been made Note: The have Editor’s Weissenfluh, parking of Liv- a friend lot of a tavern Larree E. engood only Liven- mo- was in the the street who store with across for brief good, officers and the ment. investigated who arrested Livengood report- called the crime. robbery, stayed ed then tele- watching phone parking testified as follows: lot across leave, street. then an- He saw a car midnight. at Around closed store appeared driven other that to be midnight August Liven- on up pulled A at that car preparing the till store was pulling stopped car out moment morning. change next parking lot. good’s friend Weissenfluh was car and identified driver partly not did store because wearing He the robber. night. the store alone like to be in late *4 store, he had worn in and overcoat well-lighted, even after The store was Livengood pistol. did not see the closing, several the banks since Livengood lighted pis- lights night. There left described robber’s were all bеing long, large glass tol as about six inches front of .22 doors at calibre, Livengood and old and worn. the store. trousers, said that dark robber wore approximately At 12:10 a man entered light-colored shirt, a and overcoat. said, store, pistol a and brandished The robber was about two to feet three holdup.” “This The took a robber away Livengood. from The robber was currency three coun- stacks from the minutes, in the store a total of fifteen Livengood working. top ter where Livengood and time observed him bills, There had or 11 $1. $5. all but two or three minutes. bills, and 3 bills. Thе robber told $10. Livengood Livengood Livengood open to identified the safe. at safe, opened prosecutor trial as the removed asked, small, bag any paper grocery your “Is a there brown filled doubt quarters from the mind?” safe. Livengood responded, Livengoоd
The bandit ordered “None whatso- to Weissenfluh the rear of to ever.” store a walk-in cooler. After had been cross-examination, Livengood On de- time, rear store short a any lineups nied he had viewed or said, gone.” Weissenfluh “He’s any photospreads containing рictures good store, went to front of but Naughten. Livengood talking denied the robber was still there. The robber anyone about except case with Livengood get ordered to to rear back answering questions deputy some for the stay of the store and or there the robbеr day district before trial. pistol. put use The robber Livengood admitted with Weissen- pistol Livengood’s to and di- head evening fluh testimony, before store, rected him the rear of discussing except but denied the case threatening pistol-whip if him did he long wonder how it would last. Liven- obey. not sаid he had never testi- before moment, said, After Weissenfluh fied in a case. gone, gone “He's I’m sure he’s this time.” Weissenfluh testified as follows: Livengood again, got up went front
pistol counter, under the looked clerk, shipping employed He awas not gone. for the robber. The robbеr was night at the Mart. On Livengood visiting out robbery went front and saw he had been with Liv- pistol as coat. identified the 10:00 or car He engood since about the store long-barreled .22 They beers calibre. When p. planned to a few have m. 12:10, prosecutor rob- closing. asked if the Weis- Weissenfluh At about after court, standing iden- were in the in front ber Weissenfluh senfluh was Naughten. said, Livengood “Turn glass tified when doors . turned, he Weissenfluh around.” When “Q your Is there mind? doubt gun said, “Don’t who saw a man with No, not, money “A there’s no doubt what- picked up the The robber move.” soever.” pock- countеr, put it in his coat from the Livengood et, open the then ordered cross-examination, inconsist- some On safe into the safe. robber reached developed Livengood’s encies between something Weissenfluh and removed testimony and Weissenfluh’s. identify. not could Weissen- tеstified that had seen had he when fluh at the station then marched Weissenfluh The robber sign complaint. denied Weissenfluh that cov- the cooler having thought been in the station. ever Weissenfluh ered back wall. spent stated that he had Weissenfluh from the cooler see could store night testifying before in Liven- said, gone.” They ran “He’s both good’s (Livengood had get hotel room. up Livengood’s pistol. The front away from.Portland.) gone. moved The robber robber was *5 they only played testified that had had them cooler with marched back the evening pool tes- Livengood’s the before. pistol He threat- in neck. in the Livengood. tified he wanted that Weissenfluh pistol-whip ened to evening. protection in n store for the late un- Weissenfluh and waited only be- Weissenfluh said he was there left, up front. til the robber then went going to cause he and Livengоod grabbed gun under from evening. few in have a beers later the counter, it from the Weissenfluh took Livengood got phone In addition Weissenfluh and him on the while good, police two uniformed officers and police. and called the fired Weissenfluh testified. fleeing detective The officers one two shots at the robber. they radio that received a parking lot testified had to a tavern robber go there call to to the Mart since lost across the street and Weissenfluh They robbery progress. in re- sight was a of him. description of car that Liv- ceived the saw lot Weissenfluh one car the leave engood thought he seen the robber had street, apparent- the across then car arrived, driving. As the officers ly Livengood de- driven the robber. matching pull description a car saw scribed the car with in it the robber parking out of the tavern lot across police telephone. as over Just They pulled the street. the car emerging car was robber’s from occupants. three arrested all One lot, police cars two and arrest- arrived Naughten, driver, as occupants. men identifiеd ed the three Weissenfluh Naughten placed identified the driver Al- robber. was though only Weissenfluh could see the of rear one of cars. One car, no head the driver had Naughten attempting saw officers difficulty identifying As him. Weis- money to conceal in the crack of said, senfluh “When someone sticks had seat car. my forget I ribs, their gun don’t back, and he his hands cuffed behind his face.” right pulling money was stuffing pants pocket into Weissenfluh rear testified slacks, sport tweedy shirt and money wore coat crack. officers seized bills, eleven five dollar found 21 one bills, bills. ten dоllar and three dollar MOTORS ACCEPTANCE GENERAL CORPORATION, Petitioner, wearing coat, was not of him was driv- and the car he search However, ing pistol. revealed no LABOR NATIONAL RELATIONS searching parking lot, the officers BOARD, Respondent. bag quarters did find a near the rear No. 72-1128. the tavern. door of Appeals, Court of A detеctive case was not able First Circuit. except identify much add 6, Heard Feb. night taken from clothes 6, April Decided robbery, testify and to finger- had ordered store dusted prints.
Naughten offered no witnesses in his
own defense. precious
From we see discrepancies testimony— little slight
only the variances tend to veracity
confirm of two witnesses to the
same event. Obviously, Chapman under v. Cali fornia, 386 U.S. L. S.Ct. Harrington Ed.2d 705 v. Cal
ifornia, beyond say L.Ed.2d 284 we can alleged
a reasonable doubt the error
harmless.
In a case so harmful to delicate state- ought
federal relations we take
case en banc. Cf. Leiter Minerals v. States,
United
It clear the federal courts now on appeal, objection
direct was made where
timely courts, usually in lower reverse
on the instruction. am uncon- But I point
vinced rises to constitu- inept
tional dimensions. instruc- obviously comes from Mathes and Devitt, Jury Federal In- Practice structions 72.01 and we must § given
assume has been thousands of
times. thing sort of
This left should
the states when it is a case. state GOODWIN, ALFRED T. Judge, concurs ex-
pressed dissent.