161 F. 694 | 1st Cir. | 1908
The plaintiff in error was convicted on an indictment based on that portion of the twenty-ninth section of the bankruptcy act of July 1, 1898 (chapter 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), which punishes a bankrupt who has’“knowingly and fraudulently concealed while a bankrupt from his trustee any of the property belonging to his estate in bankruptcy.” He assigned 41 alleged errors, covering 13 printed pages of the record. A number of his propositions arc so clearly contrary to law, and have been so thoroughly settled, that, we ought not to have been troubled with them. Among these is the claim with regard to an allegation in the indictment as to which the grand jury reported that the details were unknown to them. The plaintiff in error maintains that the burden rested on the United States to show that they were in fact so unknown, when it has been twice held otherwise by the Supreme Court in cases not -brought to our attention by either party. Coffin v. United States, 156 U. S. 432, 451, 15 Sup. Ct. 394, 39 L. Ed. 481, and Frisbie v. United States, 157 U. S. 160, 167, 15 Sup. Ct. 586, 39 L. Ed. 657. Another proposition is the exception taken to the re-examination of witnesses with reference to matters not brought out in cross-examination; while, if anything is settled in federal practice, it is that the direction of the examination of witnesses in such particulars is within the discretion of Hie trial court. As to the first proposition, we may add that it is, clear that the mere fact that a witness is called at fhe trial who then discloses that he knows that which the grand jury reported unknown to them, is not evidence to the contrary of the allegation of the indictment. It is merely subsequent. matter. As to the second proposition, we may also add that, with reference to every topic which is ordinarily controlled by the discretion of the court, there may be such an abuse of discretion that an exception lies; but no attempt at a showing of that character is made here. Ifike well-known rules dispose of all exceptions based on the fact that the court allowed re-examination of the witnesses for the United States after they had been cross-examined.
There are two counts in the indictment; one alleging that the bankrupt concealed from his trustee a diamond brooch, and the second the concealment of “certain jewelry,” a more particular description of which is said to have been to the grand jurors unknown. The traverse jury returned a verdict on each count, finding Jacobs guilty on each; and, so far as anything is shown in the record, he was sentenced on both.
The record shows that the bankrupt had been a jeweler in Worcester, and that his stock consisted of jewelry, and more particularly of diamonds. Therefore any evidence with reference to his stock in trade, although not more particularly described, may well be regarded to have related to “jewelry” as that word is used in the second count.
One ailcg'ed error called to our attention relates to the testimony of a witness in regard to the amount and the value of the stock found in Jacob’s store about the 15th day of October; the petition in bank
Another alleged error relates to the testimony of the witness who had the conversation with Jacobs in August. The conversation as a whole was objected to as immaterial, but what we have already said disposes of this. ’ During the course of the conversation, as the witness testified, Jacobs showed him some promissory notes, claiming to own them, and he also testified in reference to prices which Jacobs paid for certain goods. These were objected to; but, as the objections 'and exceptions were both general, they do not, under the circumstances, and especially under the practice in this court, require our attention because, so far as we can discover, the conversation as to these topics was immateidal and could not have been prejudicial.
Another topic brought to our attention by the plaintiff in error is covered.by the following extract from the record:
“William tielson, recalled, testified that he had all the papers connected with the bankruptcy proceedings in the case of the defendant, Jacobs, except what had been put in evidence; that he had 23 proofs of claims besides those that were marked in evidence. (Twenty-three proofs of claims are offered in evidence.).- ...... .
“Objected to on the ground that proofs of these individual claims were not competent to prove anything so far as the ownership of i>roperty was concerned, or whether property was in the hands of the bankrupt or not at any time either before or after the date of the bankruptcy. They were offered as admissions of the defendant as to ownership or possession of property.
“The Court: I rule that proofs of claims are admissible, because they are a part, of the record of the bankruptcy proceedings.
“Mr. Anderson: Anid1 will your honor save my exception?
“The Court: Your exception is saved.'
“Mr. Anderson: And to - each one of them. I understand I must be particular about them. ■
“Twenty-three proofs.of claims were marked ‘Exhibit 7,’ which may be referred to’ at the hearing oh' this bill',” "
-The purpose of admitting the proofs pf claims was in linp.with the testimony-which we have just considered; that is, with the view- of showing, that the bankrupt had'purchased prior to his
An important question arises from the fact that she who had been the wife of the bankrupt, but had been divorced from him before the trial, testified against him. Among other things, she testified to an interview occurring before the divorce. There were present, besides the witness and the bankrupt, the bankrupt’s brother and his wife. It is evident that the gathering of the four -was an open consultation between them as to the method of meeting certain proceedings against the bankrupt which were anticipated, and, so far as we understand the record, these proceedings included the probability of the indidmetit now pending before us. At any rate, the nature of the conference was a joint consultation of the character which we have described. The plaintiff’s former wife testified that during the conference the bankrupt gave her a slip containing questions that were likely to be asked her as a witness, and proposed answers. This paper was kept for several weeks and then destroyed or lost. She was asked by the prosecuting attorney what she could remember as to its contents. This was objected to on the ground that the paper was a communication given by the husband to the wife, and therefore inadmissible. The testimony asked for was admitted, and ah exception saved. The ob
The most important question in the case arose as follows: Previous to his trial, Jacobs had been examined as a bankrupt. The seventh section of the bankruptcy act of July 1, 1898, provides: “But no testimony given by him” — that is, the bankrupt — “shall be offered in evidence against him in any criminal proceeding.” The bankrupt offered himself as a witness. On the cross-examination, a book was produced called the “sales book,” which we understand to have been a book kept by the bankrupt in his business, as a jeweler, though this is not clear to us. From that book apparently some leaves had disappeared, and apparently there was a claim that this was the result of mutilation by the bankrupt. After he had been somewhat inquired of by the prosecuting attorney in reference to this book, the question was put: “Well, you gave an altogether different description about that, about what happened to that book, didn’t you, before the referee?”' This was objected to in a proper and clear manner, on the ground that, under the statutory provision which we have cited, it was not lawful to use the examination in these proceedings. The question was admitted,- and exceptions were saved to that entire line of interrogation. Following it up, quite a list of questions was asked the bankrupt as to his examination before the referee. The following is illustrative: “Do you remember a question like this-: What became of those ac
In answer, the United States make two replies: One is that the examination — that is, the paper itself — was not put iu evidence, which is true; and the second is that the questions put to the bankrupt on cross-examination come within the general rule with reference to the protection of the fifth amendment to the Constitution, which is waived when an accused person voluntarily offers himself as a witness, in accordance with Fitzpatrick v. United States, 178 U. S. 304, 315, 20 Sup. Ct. 944, 44 L. Ed. 1078, and Sawyer v. United States, 202 U. S. 150, 165, 26 Sup. Ct. 575, 50 L. Ed. 972. The difference, however, between the two positions is fundamental. The waiver of the constitutional provision concerns merely the personal conduct and condition of the witness. He offers himself as a witness, and therefore puts himself in the position of any other witness so far that lie may be examined with reference to anything pertinent to the case and admissible in evidence therein. Of course, the cross-examination of one witness may, for the purpose of testing his character, run out into a line of questions which would not be relevant when put to another witness: but a line of questions of the same class might he put to the second witness and be relevant. Here the issue is not with reference to the conduct and siluation of the witness himself, hut with, reference to the conduct and situation of the prosecuting attorney with regard to something prohibited by the statute, and which could not be testified to by any other witness.
Running this out practically, the essential distinction becomes plainer. The United States say that they proceeded as they did for the purpose of testing the credibility of Jacobs as a witness. In the federal courts, when it is desired to contradict a witness or determine his credibility by putting iu proof of a prior contradictory conversation, or a contradictory letter or document of any kind, it is necessary to first interrogate the witness in reference thereto. Of course, this does not apply to the full extent where a party is testifying in his own behalf, because there the letter, document, or conversation can be introduced for the purpose of contradicting the party in interest, and showing that his case is in fact otherwise than as stated by him, and, indeed, independently of any statement he makes on the stand. It is not claimed here, however, that under the statute the examination before the referee could be introduced for cither of those purposes. Therefore, as the preliminary examination could not have been followed up iu the usual way by the subsequent introduction of the written examination, the cross-examination was not within any rule of practice and was clearly unlawful.
In short, the matter cannot stand like the waiver of the constitutional guaranty because that waiver, as we have said, relates to evidence which would be admissible if it came from some other person as a witness, while here the alleged waiver related to evidence which would not be.
The underlying philosophy of the statute in question is that, as a matter of justice to the bankrupt, and also for the interests of creditors, he should be encouraged to testify freely in his examination j but he would have no encouragement thereto if, on being prosecuted for an offense, he could not undertake to absolve himself by his own testimony except at the risk of being tripped or embarrassed by what he had previously sworn to. To permit a course of cross-examination in the method here, whether the documentary evidence taken before the referee was produced in the presence of the jury or not, would be simply to permit an evasion of the statute, because to do so would involve the mischief which the statute intended to guard against, in that the witness might be more harassed and prejudiced than he would be if the whole document had been frankly put into the case.
With reference to this issue, the plaintiff in error has not called our attention to the question whether or not the course pursued by the United States might have been prejudical to him. In fact, his propositions with reference to nearly all, .if not all, the numerous issues sought to be raised by assigning 41 alleged erroneous rulings are defective in the same particular. The fact seems to be often overlooked that it is not only necessary to show that a ruling was erroneous, but also to point out something which would raise a presumption that the error was, or might have been, prejudical. In this case the prejudicial nature of the error suggests itself from a perusal of the record, and also1 by the statement of the prosecuting attorney that the method of examination objected to was for the purpose of testing the credibility of the 4 witness. The proofs as'to the first count in the indictment, which related to the diamond brooch, consisted very largely, we might say almost entirely, of the testimony of the bankrupt against that of his divorced wife. The charge of the learned judge, which is printed in the record, shows that he regarded these statements as practically irreconcilable, so that the question was one of veracity. What we see of the record satisfies us that such was the fact. Under these circumstances, the credibility of the bankrupt was a matter of the highest importance; and, in our opinion, the method of cross-examination adopted was calculated to place him in a very unfortunate position before the jury, so far as the necessity of balancing his testimony was concerned; and, consequently, we think this was an error which requires .that the judgment and the verdict on both counts should be set aside.
With reference to the numerous other alleged errors, it is only with very great difficulty that we could follow them up one by one, and explain our views in regard to each. Where there are so many assigned as we find here, it becomes physically necessary for us to protect our
An omission quite general, and not at all peculiar to this case, arises from the fact, to which we have referred, that parties seem to overlook that it is not sufficient to show that a certain ruling was technically erroneous, but that it must also be shown that it, was prejudicial, or, at least, that there is a presumption that it was prejudicial within the liberal rules of the Supreme Court in this respect. With all the various matters brought to our attention, we do not recall that there was a single one as to which it was pointed out to us that the alleged error was prejudicial, or that there was any presumption that it was so. Other propositions were submitted without argument, with the mere statement that they were not waived. This does not require us to give any attention to them. Therefore, on the whole, we can only say, as to the various alleged errors which we have not specifically considered, that our impression is that the District Court was correct in its rulings. It may be that, if the same questions should be carefully presented to us again, we might be compelled to take a different view from that which now presents itself; but, on the whole, we feel justified in trusting to the probability, or, at least, to the possibility, that, on a new trial, they may all disappear.
The judgment and the verdict in the District Court are set aside, and the case is remanded to that court for further proceedings in accordance with law.