King v. United States, 112 F. 988

112 F. 988 | 5th Cir. | 1902

PARDEE, Circuit Judge

(after stating the facts as above). The second'count of the indictment under which the plaintiff in error, King, was convicted, does not specifically, in clear-cut terms, charge or describe the official capacity of King at the time he is charged with receiving the bribe in question. It does, however, charge that he received said bribe “with intent to influence his, the said Cyril W. King’s, official action in the payment of money ⅜ ⅜ ⅜ for the constructioh of certain buildings in the Fort Morgan Military Reservation as aforesaid, which said matters and things, to wit, the tender and acceptance and rejection of material used and to be used in the construction of said certain public buildings on said Fort Morgan military reservation by said J. H. Hobson, and the payments therefor, were then and there pending before the said Cyril W. King, or might be brought before him in his official capacity, by virtue of the authority vested in him, the said Cyril W. King, by the war department”; and my Brethren are of opinion that" after verdict, this is a sufficient charge and description of the official capacity of King to bring him within the intent and meaning of section 5501 of the Revised Statutes of the "United States, and therefore the assignment of error based on the denial of the first motion in arrest of judgment is not well taken.

The case shows that J. H. Hobson, the person charged in the indictment as having paid the money to King, was the main witness for the government to establish such payment, and the intent with which it was paid and received; and he testified fully as to the payment of the money, and the object thereof. While perhaps not strictly an accomplice of King, he was unquestionably particeps crirninis in the transaction as a whole, and was indictable for his conduct under section 545T of the Revised Statutes. The case also shows that the question of the guilt or innocence of King depended upon whether Hobson’s sLatemeht should be taken and believed by the jure as against the voluntary evidence given by King himself. It appears by the record that 011 cross-examination of Hob-son he was asked the following several questions by counsel for King:

“'What agreement existed between yon and the war department or the department of justice for the United States in regard to exempting you from prosecution so far as this ease is concerned?”

"Was there any agreement on the part of the United States to exempt you from prosecution for your part in this affair in consideration of your convicting Captain King, <r for appearing here as a witness?”

“uas any promise or security or immunity from prosecution on your part been made to you by any representative of the United States in consideration of your appearing here as a witness against Captain King?”

And having testified that he did not go voluntarily to the government and report this matter, but that he was sent for, he was asked the question:

"What proceedings took place?”

And having testified that the last payment made him by defendant was made in bills of various denominations, which had been marked before being paid to defendant, the defendant then asked the witness the following question:

“This last payment that you speak of with Captain King, it was arranged between you and some officers of the government that you would get this money for it, and mark it, and that you should go and pay it to Captain King at a certain time and place, and report the time and place to the government. In other words, ‘ there was an arrangement made to that effect, was there not?”

Also the following:

“As between you and McAdams, what was your understanding and agreement there at the time with reference to the payment of money?”

To each of these questions the attorney for the United States separately objected, and each of said objections was sustained by the court, and the defendant separately excepted to each of said rulings.

I11 the cross-examination of witnesses in criminal cases a wide latitude is permitted. It is always permissible to show the interest, bias, and prejudice of the witness, and to inquire about any and every relevant and material matter to the issue in controversy which in any w.ay tends to throw light upon the feelings of the witness, or explains and makes clear his situation with respect to the defendant, in order that the jury may be fully informed of all the facts an'd circumstances tending to throw light on the weight and importance of the evidence as given. The proposition is elementar)'’, and it is found -in the text-books. See i Greenl. Ev. (15th Ed.) 6S4; Whart. Ev. § 408, 544, 561; 1 Archb. N. P. pp. 29, 30, 39. And the rule is well recognized in the decisions of the courts. See Tla-koo-yel-lee v. U. S., 167 U. S. 274, 17 Sup. Ct. 855, 42 L. Ed. 166; Taylor v. U. S., 32 C. C. A. 449, 89 Fed. 954; Tate v. State, 86 Ala. 33, 5 South. 575; Amos v. State, 96 Ala. 120, 11 South. 424; Rivers v. State, 97 Ala. 76, 12 South. 434. In fact, we do not understand that the learned district attorney, who represented the defendants in error in this case, disputes this, but, rather, relies upon the proposition, and his contention is, that in this case, and under the circumstances shown in the record, the answers to the questions sought were not permissible because they were directed towards the ascertainment of a state secret, which is privileged on grounds of public policy. In support of this contention, counsel cites Rose. Cr. Ev. (Sharswood's Ed.) 185, as follows:

“Where a communication takes place "between a counsel or an attorney and bis client, or between government or some of its agents, such communication is privileged, on the ground that, should it be suffered to be disclosed, the due administration of justice and government could not proceed; such administration requiring the observance of inviolable secrecy.”

And he also cites in support Steph. Dig. Ev., 7 Am. & Eng. Enc. Law, p. 102, and 1 Greenl. Ev. (15th Ed.) § 250.

In this case we do not think there is any necessity to appróve or dispute the proposition cited from Roscoe, nor to determine how far the public policy which shuts the mouths of witnesses in regard to state secrets can be safely applied when it conflicts with the constitutional right of every person tried in the courts of the United States to have a fair and impartial trial. However the main proposition may be, we are clear that the conversations of government detectives and other agents with witnesses, with the purpose and effect of inducing and influencing the evidence of such witnesses, do not rise to the dignity of state secrets, and, when a witness so induced or influenced appears on the stand -and testifies, he may be cross-examined as to any and all inducements made to him on the part of any one in connection with his evidence; and we think it would be intolerable for government, agents to be allowed to give inducements to witnesses, and not have the same freely exposed on the witness stand, so as to inform the court and jury as to the proper weight of the evidence given.

The learned counsel further contends that the rulings refusing and denying the right of cross-examination, as shown by the bill of exceptions, do not constitute reversible error in this case, because; he says, it was error without injury. He claims that an examination of the record will show that the material part of Hobson's testimony is fully corroborated by the defendant in his direct examination, and also in his cross-examination, so that, if the evidence of Hobson be wholly discarded, the evidence of the defendant wo.uld fully justify a jury in rendering a verdict of guilty, and a trial court in awarding sentence. We have given the question very serious attention, and, pretermitting the suggestion that the adverse rulings of the court, refusing to allow the interest and bias of Hobson to be given in evidence, may have compelled or induced the defendant, King, to give evidence in his own case, we are compelled to conclude that, while King’s evidence corroborated and agreed with much of the evidence of Hobson, yet, on the material question as to the consideration and purpose for which the money was paid by Hobson to King, the two are diametrically opposed. If Hobson’s evidence should be discarded from the record, the only evidence before the jury to determine whether King received the money as a bribe would be King’s statement of the circumstances; and from that evidence, while it may be determined that he was guilty of immoral conduct, and perhaps of a criminal offense against the statutes of the United States, he was not guilty of bribery, as charged in the indictment. Besides this, the finding of guilty in a criminal case in the courts of the United States is a matter for the jury, and, barring a plea of guilty entered by the accused, never becomes a finding by the court. We do not dispute that an accused on trial may by admissions show such a state of facts that the previous rejection of evidence in his favor, or other adverse ruling, may become immaterial, and be so treated on error, but this is not such a case. The pivotal question on the trial was as to the intent and consideration of the payment of money by Hobsoti to King. Hobson testified that the money was agreed to be paid and was paid to influence King, in his official capacity, in accepting or rejecting- the work of Hobson as contractor. King testified that it was agreed to be paid and was paid for services-outside of his official capacity, in inspecting material before it went into the work, and for assistance in forwarding the work. With the evidence of both in the case, it was a question perhaps easy of solution, but wholly for the jury. With Hobson’s evidence out of the case, the solution is not so easy, and only the verdict of a jury would meet the requirements of the law.

The assignments of error based upon rulings of the court permitting the accused, King, as a witness, to be cross-examined in regard to his dealings with Stewart, and afterwards, in rebuttal, permitting Stewart to be cross-examined in reference to a bribe alleged to have .been paid by Stewart to the accused, King, in connection with a plumbing contract, are not well taken, because the accused, King, had voluntarily put his good character in evidence, and made it one of the issues in the case. The authorities cited, therefore, in support of these assignments, are not applicable.

The other assignments of error need not be considered, because they are clearly without merit, or are based on rulings which were incidental to that particular trial, and not likely to appear in another.

For the erroneous rulings in regard to the cross-examination of witness Hobson, we are reluctantly compelled to reverse the judgment of the circuit court, and remand the case for a new trial, and it is so ordered.