210 F. 419 | 9th Cir. | 1914
The indictment filed by the United States attorney charged that on or about the 23d day of February, 1912, the defendant, within the Southern Division of the Western District of Washington, while he was a bankrupt under the Bankruptcy Act, did willfully, knowingly, .fraudulently, and unlawfully conceal and cause to be concealed from one J. M. Phillips, who was then and there the duly appointed, qualified, and acting trustee in bankruptcy of the
It appeared from a bill of particulars furnished to the defendant by the government that the manner of concealment of the real estate referred to in the indictment was as follows: The defendant, having bought certain property in the town of Winloclc, in the state of Washington, commonly known as the “St. James Hotel property,” from one Carl Buege, took title to it in the name of Anna Reinhardt without any consideration moving to the latter therefor; that thereafter the defendant procured Anna Reinhardt, without any consideration therefor, to transfer the property by deed to one E. Maud Everitt; and that said E. Maud Everitt did thereafter trade said property for the real estate set forth and descirbed in the indictment, situate in the county of Morrow, state of Oregon, with the intent and purpose on the part of said defendant to conceal all of the last-mentioned real estate from the trustee in bankruptcy mentioned and named in the indictment.
The jury found the defendant guilty as charged in the indictment, and he was sentenced by the court to imprisonment for the term of nine months.
The first four assignments of error relate to the admission of certain testimony introduced by the government over the objections of the defendant. The objection was that the testimony was incompetent, irrelevant, and immaterial and prejudicial to the rights of the defendant.
The first objection was to the testimony of one A. S. Hoonan, assistant cashier of the National Bank at Aberdeen, Wash. The second objection was to the testimony of one Clyde E. Philliber, clerk in the Bank of Eadd & Tilton, at Portland, Or. As the testimony of these two witnesses relate to the same transaction, the objections will be considered together.
The testimony of A. S; Hoonan was to the effect that, while he was acting as teller in the National Bank at Aberdeen, Wash., he sold to the defendant a certain draft. The draft, which was introduced in evidence by the government, was dated February 11, 1911, and was on the First National Bank of Portland, Or., in favor of E. M. Everitt,
The testimony of Clyde L. Philliber, a clerk employed in the Bank of Ladd & Tilton, at Portland, Or., was to the effect that on February 13, 1911, the assistant cashier of his bank came to his window with a draft drawn from the United States National Bank at Aberdeen on the First National Bank of Portland, Or., and requested that he give a certificate of deposit to E. M. Everitt; that the assistant cashier wrote out the certificate and the witness countersigned it. The draft theretofore introditced in evidence and identified by the witness Hoonan was then shown to this witness, and he identified his stamp upon it and testified that it seemed to have passed through his department. A certificate of deposit of the Ladd & Tilton Bank, of Portland, Or., dated February 13, 1911, in favor of E. M. Everitt, for $1,200, signed by E. C. Philliber, teller, and Walter W. Cook, assistant cashier, and indorsed on the back, “E. M. Everitt,” was thereupon introduced in evidence, and the witness testified that the signatures thereon were those of himself and the assistant cashier, Walter W. Cook.
The charge in the indictment is that the defendant, being a bankrupt, had concealed from his trustee in bankruptcy certain real estate belonging to his estate in bankruptcy, and that this real estate was situate in Morrow county, Or. The bill of particulars furnished 'to the defendant by the government charged that the defendant, having bought certain property in the town of Winlock, state of Washington, took title to the property in the name of one Anna Reinhardt; that thereafter the defendant procured the said Anna Reinhardt to transfer said property to one E- Maud Everitt; that said E. Maud Everitt, as agent for the defendant, thereafter traded the Winlock property, in the state of Washington, for certain real property situated in Morrow county, Or., and the defendant was’ charged with concealing this real estate in Morrow county, Or., from his trustee in bankruptcy.
It appeared from the testimony of one P. E. Alvord, who resided in Portland, Or., that he knew the defendant in a business way, and that in April or May, 1911, he met the defendant and Miss Everitt; that he knew that thev wanted to dispose of the Winlock property in Washington, and, knowing that certain parties in Eastern Oregon wanted to exchange some wheat land in that locality for property in or near Portland, Or., he brought the parties together and an exchange was made of the property in Winlock, Wash., for the real estate in Morrow county, Or.; that there was a difference between the values of the two properties in this transaction; that the St. James Hotel property was valued at $11,000, and the Oregon property at $25,600, leaving a balance of $14,600, of which latter amount $13,000 was to remain on mortgage, $1,000 was to be paid in cash, and $600 was to be paid in two months- from the date of the agreement. It is contended by the government that the circumstances tended to show that the transaction narrated by the witnesses Hoonan and Philliber, concerning the draft of $1,200 on the First National Bank of Portland, Or., and the certificate of deposit in the Bank of Ladd & Tilton, at Portland, Or., was connected with the cash payment of $1,000 involved in the exchange
In the case of Williamson v. United States, 207 U. S. 425, 451, 28 Sup. Ct. 163, 172 (52 L. Ed. 278), the Supreme Court of the United States disposed of a similar objection in these words:
“The contention that the proof on the subjects just stated should not have been admitted, because it tended to show the commission of crimes other than those charged in the indictment, and consequently must have operated to prejudice the accused, is, we think, without merit, particularly as ■ the trial judge, in his charge to the jury, carefully limited the application of the testimony so as to prevent any improper use thereof.”
See, also, Moore v. United States, 150 U. S. 57, 60, 14 Sup. Ct. 26, 37 L. Ed. 996.
As to the relevancy and weight of this testimony, what the Supreme Court said in Holmes v. Goldsmith, 147 U. S. 150, 164, 13 Sup. Ct. 288, 292 (37 L. Ed. 118), is applicable here:
“As has been frequently said, great latitude is allowed in the reception of circumstantial evidence, the aid of which is constantly required, and therefore, where direct evidence of the fact is wanting, the more the jury can see of the surrounding facts and circumstances, the more correct their judgment is likely to be. ‘The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth. Stevenson v. Stewart, 11 Pa. 307.’ The modern tendency, both of legislation and of the decision of courts, is to give as wide a scope as possible to the investigation of facts. Courts of error are especially unwilling to reverse cases because*424 unimportant and possibly irrelevant testimony may have crept in, unless there is reason to think that practical injustice has been thereby caused.”
“Q. * * * Doctor, weren’t you asked this question and wasn’t this your answer, ‘Did you ever own real estate there [Winlock]?’ and didn’t you say, ‘No, sir’? A. I do not recollect. If you have got the evidence there it is probably so. Q. And then were you not asked, ‘Did you ever have any interest in any real estate there?’ and didn’t you say, ‘No, sir’? A. I do not know.”
Counsel for the defendant admit that had the defendant ever testified in any former proceeding that he had owned, or did own, an interest in the real estate in Winlock, and had on the trial of the action now before the court testified to the contrary, then it would have been permissible to impeach him by showing that at a different time and place he had admitted owning an interest in the real estate in Winlock; but they contend that that rule has no application to the present case for the reason that the defendant had testified in this case that he had at one time owned real estate at Winlock, and the impeaching testimony tended to show that during the former proceeding he had testified that he had never owned any real estate, or any interest therein, at that place. The cases.admit of no such distinction. The basis of impeaching testimony is inconsistency or contradiction. Evidence impeaches a witness when it. assails his general credibility or otherwise weakens the force of his testimony and distracts from the weight to be given it (40 Cyc. 2564); and in connection with this rule there must always be considered the further rule that, in order to impeach a witness by proof of contradictory statements made by him, it is essential that such statements have reference to some matter which is relevant and material to the issue on trial (10 Encyc. Pleading & Practice, p. 294). The questions asked the defendant related to the ownership of the hotel property in Winlock which it was contended had been owned by the defendant and had been exchanged by him for the property set forth and described in the indictment, for the concealment of which he was being tried. The statements brought out on cross-examination were clearly material, and the fact that they were variant from previous statements -rendered them admissible for the purpose of impeachment. Nor can it be claimed that there was no .reason for the introduction of the former statements and that they were of no weight in determining the question at issue as to the ownership of the property charged to have been concealed from his trus
The judgment of the court below will be affirmed.