*1 Atty., Caputy,. Lewis Carroll Victor Joseph FENWICK, Appellant, Attys., brief, U. Asst. appellee. S. F. v. America, Appellee
UNITED STATES Judge, Before Chief Edgerton, Judges. Circuit Bastían, Danaher Appeals United Court of States Judge. DANAHER, Circuit District of Columbia Circuit Appellant joint- James were Oliver 3,1957. Argued Dec. ly indicted, charging, on three counts 16, 1958. DecidedJan. February 29, 1956, possession of a Gov- mails,,
ernment check stolen from the forged uttering endorsement, and counts, forged. so check Three additional like offenses March guilty plea James entered to three whereupon counts to one transaction alleged participation, the counts as to his other occurrence were dismissed..
Appellant trial, went to follows his conviction. ap-
One Doris Johnson had lived where pellant made his abode until his father- about, police bring invoked aid of ejectment. appel- She testified that lant had her a Government upon forged which she had an endorse- payee ment the name of and that appellant liquor waited outside a store- while she and entered James the store cashed the check. Thereafter hav- ing proceeds appellant, delivered the she received as her share. $9 Kay appellant One Glenn testified that her; appellant had seen had beaten she involved 31, 1956, transactions; March she clothing appellant outside a waited purchased while entered and store James clothing forged check; James, with the return, gave appellant
money, pair trousers two shirts. elicited from her The Government also yet that she seen checks, of which other none was identi- fied, appeared, and for all that forged or not have been stolen or uttered. James, witness, called as a defense O’Neall, Washington, F. Mr. Charles cheeks, appel- identified both but denied (appointed Court), D. C. alleged complicity, alleged par- lant’s ticipation pellant. by Kay Glenn, appel- and Belcher, Atty., proceeds S. Asst. U. Mr. Carl W. lant received the from the cashing Gasch, Oliver Messrs. U. S. either whom check. He insisted he *2 you see, money what You “The Court: give “no not
would get think, trying at, I this: going are nothing” with to for “He was from my though put you char- had not him.” Even playing stopped with I wife. evidence, acter in the Government had he a statement with Confronted offenses for agents, could show related ac- James given to Government showing or signed it, intent knowledged observed had he you scheme, plan, now checks, but have or a but referred to five it put writing. in evidence. character pudiated the entire whatever to might The Johnson in “some Appellant denied avoid her mother’s kind of “harboring woman, training various he all charges said, girl” participation school,” occurrences. had been he had he After ery out all the details.” Government the [*] “The Court: angle a recess of character and [*] And right prosecutor [*] which to explore ev- [*] gives to continued: bring [*] police take to “Q. you for the send his father I answered the think woman, “I away. the Glenn As to last about that conviction. see; her, wife marry I had a couldn’t “Now, in a case this court marry already, her.” I couldn’t see. January, case went to trial on January, 1957, which the 23rd of case, Thus, devel- the Government’s you you, prosecuted case I alleged accomplices through oped two were convicted hostility, purport- grounds had who you not, knowing were conduct, pattern of demonstrate ed to you also con- it directly continuing scheme, plan, de- or uttering? forgery victed Against appellant. nied background, appellant Honor, “A. Your there is a de- on cross-examina- pending Ap- in the cision Court was asked: tion peals about that. court, in Criminal “And in this Now, you “The answer the Court: 846-56, you were convicted your question, then make ex- being you are same offense planation. today, possession a check tried for right. “The Witness: That is stolen, forgery knowing that it was sup- Now, (Emphasis and plied.) “The Court: want to go explanation,
make some
ahead.
opin-
“The Witness: There is
had
convicted
Appellant
been
Appeals pertain-
ion in the Court of
nothing
do
appealed. That case
ing to this whole matter about the
instant
in the
the offenses
matter,
jurisdiction
see,
in this
had been
except
counts
similar
appeal
pending
now,
and I
this
just
dovetailed
which
forth
set
protect
wanted the Court to
to have
“pattern” here said
“scheme”
rights,
my
just
I
wanted to
conceded that
must be
followed.
been
Attorney
know whether the District
con-
not here seek
could
the Government
rights
was within
question.
to ask that
had occurred
of what
because
viction
urged
counsel
prior
Defense
case.
some
Well, you
“The Court:
answer
properly
not
that the
questions that are asked
try
relate
“use a
objection
I rule
unless
one,
one he is
tried
it to
admissible,
then
can
judge
the trial
an-
When
here.”
explanation you
whatever
make
want
try-
Government “is
swered
ing
make.
prosecutor replied
that,” the
do
Well,
just
saying
“The Witness:
is a similar offense.”
want
“I am
record,
put
your
colloquy
on the
ed to
of further
the fol-
Honor."
course
In
lowing occurred:
illogical
“wholly
emphasize
per-
colloquy only
and unfair to
tends
degree
interrogated
of this
the
pellant
of involvement
mit a
defendant
have
must
in what
previous
about a
from
himself,
deemed,
as did
trial
pending.
which an
If
*3
purpose to show
the Government’s
judgment of
later
continuing
pattern
pellant’s
or
scheme
versed,
suffered,
the defendant has
by
in
his
convic-
the instant
unjustly
irreparably,
preju-
the
tion
same
for “the
offense.”
dice,
any,
by
if
caused
the disclosure
provides in
(1951),
14-305
of
D.C.Code
the former conviction.
there-
§
We
pertinent part:
pendency
hold
that
the
fore
of
prevents
prosecution
appeal
the
incompetent
person shall be
“No
proving
previous conviction
a
from
criminal
testify,
or
in either civil
impeachment purposes;
for
having
by
his
of
proceedings,
reason
erred in ad-
the District Court
crime, but such
been convicted
mitting
concerning Camp-
evidence
given
af-
evidence to
in
be
fact
bell’s conviction when his
witness, either
as a
his credit
fect
therefrom had not been deter-
cross-examination
the
(Emphasis supplied.)
mined.”3
by
aliunde
evidence
witnesses or
*
>>
**
fairly
It
noted
should be
that neither
improper,
im
Clearly would be
counsel called
the
the
attention of
accusation, visiting
purposes,
judge
peachment
to show
rule which
had
the
we
against the
.arrest,
Campbell
as well
indictment
announced in
case. Had
the
against a
as
advised,
trial
in a criminal
he been so
accused
he could
in
have
case,
any
or criminal.1
jury
civil
structed the
witness
as had been done in the
of Beasley
in furtherance
pointed
had,
out
case.
have
The
here
We
ap
principle
admitted,
time
where the
“record” of final con
a
con
expired,
petty larceny
peal
like,
victions of
the
Beasley
In the
possible
jury
inadmissible.2
be sure.
It is
viction is
would
voiced,
having
case, objection
guilty
been
have returned a
verdict
immediately
ruled that
However,
escape
event.
trial
we cannot
question or
.jury
jury
not consider
should
conclusion that
here
well
given
error
“cursory
concluded
We
far
answer.
have
more than
consideration”4
prompt instruction
prosecutor’s ques
cured
t
o
had been
episode.
disregard
We
shown,
tions,
that the
framed as
have
we
our
background
intendment of
the case
.are satisfied
as we have
requires
Code, supra,
there
it.
all
summarized
Under
the circum
say
“such fact
before
final
here
did in
stances we cannot
as we
has seemed to
Campbell
in evidence.”
case that
error
any,
Rather,
slight,
us
effect.
arewe
D.C.Cir.1938,
States,
977,
432,
847,
United
v.
76
100
1. Sanford
S.Ct.
L.Ed.
U.S.
44,
App.D.C.
2. §1. crime, reason person sliall be charge, eliminated ness, in either [*] 14-305 [*] either [*] matter of his witness >> civil to affect D.C.Code such fact or criminal having incompetent fact, the cross-examination (1951 been convicted credit possible question evidence aliunde. proceedings, court, Ed.): testify, wit- “No by All of those of a “continuous indictment three cumstances Fenwick, stances said: “This them have to do with the reference having surrounding them a criminal Joseph charging surrounding committed certain offenses offenses are have to two Government scheme.” Frederick the other charge, do one defendant, felonious with the cir- a The court check. six-count Fenwick, circum- checks. three Mr. It 128 tion, by majority U.S.App.D.C. page used as a basis verdict.” 85 reversal, simply 136, page affect introduced was 176 F.2d at appellant’s credibility, other as were the substantially can same I feel that purpose. convictions, for no other case, and that present be said about the course, recognize, court that this concerning proof prior convic- 1949, ruled, States, Campbell v. United part “played tions bringing no substantial 47, U.S.App.D.C. 133, F.2d here. verdict” about the “wholly illogical it is unfair evi- doubt There can be no interrogated permit a defendant to be involved dence of the conviction previous
about a from which crime simply because the inadmissible However, pending.” which same as that involved was the pointed was was out that reversal he was trial. required question not there where such a Further, in mind be borne was asked: it is to to in the the conviction referred “Moreover, knew involved in fact affirmed. petit larceny pending conviction was *5 conviction been be that had that well versed, appeal, appellant’s on and heard the in this the conviction alleged- uncontradicted statement of error to be reversed likewise have ly newly-discovered admitting testimony. that larceny case which would amount charge. great complete reverse mistake to I think it is defense that put view, studying case and It is our conviction in this after necessity new proof entirety, reason- the Government that no juror now able more trial when the same would have asked, particularly not be cursory as it than the most be possible consideration who larceny procure conviction, the witnesses that concerning I there- proof first played available at the trial. no sub- were bringing part fore dissent stantial about sepa- you trying just the offenses were different two as said: The court this man. scheme was involved. no indictments rate connected in are not instances are of those two there two “The fact way, within the rules [accomplices] one but does not mean that country easily jurisprudence other, will criminal corroborates charges may be tried two are en- these consider when see tirely That is for the time. the same offenses. Doris Elaine different expense saving anything both to the time know about didn’t Johnson defendant, clothing so as and to into that was taken check convenient, any- store, Kay must make it more didn’t know Glenn separate thing two in mind that bear into the check was taken about instances; centering liquor three and distinct Each one of them tes- store. centering one three on the check and therefore as to a certain check tified testimony other.” is uncorroborated. Doris Again, commenting liquor testimony the fact Johnson’s about largely testimony Kay that of accom- store is uncorroborated. plices, testimony testimony clothing of accom- about Glenn’s always plices great to be received with check is store uncorroborated.” caution, carefully pointed court out