124 F.2d 284 | D.C. Cir. | 1941
Appellant was convicted, in the Police Court, of injuring a person with a motor vehicle and failing to stop and give assistance, etc., and report to the police.
The same principle applies to the next point. The court excluded evidence that appellant carried $100,000 of liability insurance. He offered this as showing “lack of motive * * * not to comply with the purposes of the statute * * With nothing in the record to show what testimony concerning flight there may or may not have been, we cannot say that the exclusion of this evidence was prejudicial.
Appellant asked for a subpoena duces tecum directed to Kenneth Yeatman, a member of the bar, requiring him to produce “the statements of R. Harris, E. Edson and N. Clark in the case of Bomley v. Morris.” The record does not clearly identify the case of Bomley v. Morris. Appellant’s counsel told the court that the statements were made by witnesses to the accident who had been subpoenaed by the prosecution in the present case. The record implies that Bomley was the person injured, and that the statements were obtained by Mr. Yeatman as counsel for Bomley. The court refused the subpoena on the ground that the statements were privileged.
Some cases hold that the issuance of subpoenas to compel the production of documents on behalf of an accused is within the reasonable discretion of the court. Some require, at least, a showing of relevancy and materiality to the defense before the court is bound to issue the subpoena.
We need not pass upon the question whether there was technical error in refusing the subpoena. There is nothing in the record to show that, at the trial, a foundation was or could have been laid for admitting the statements in evidence, either to impeach their authors or for any other purpose. It does not appear that they admitted making the statements, or were asked whether they had made them, or that the statements were actually in existence either at the time of the trial or when the subpoena was sought. The record does not even show that the authors testified at the trial. Without a proper foundation the statements, if they had been brought to court in response to a subpoena, would not have been admitted in evidence.
Affirmed.
D.C.Code (1929), Supp. V, Tit. 6, § 247.
We do not consider the extra-record evidence referred to in the briefs.
Edgington v. United States, 164 U.S. 361, 363, 17 S.Ct. 72, 73, 41 L.Ed. 467. Wigmore, Evidence (3d ed.), § 56.
Keady v. United States, 10 Cir., 62 F.2d 689, 690.
Junghans v. Junghans et al., 72 App.D.C. 129, 130, 112 E.2d 212.
Wabash Railway Co. v. Bridal, 8 Cir., 94 F.2d 117, 121, certiorari denied 305 U.S. 602, 59 S.Ct. 63, 83 L.Ed. 382.
Cf. 28 U.S.C.A. § 391.
Walker v. Commonwealth, 257 Ky. 613, 78 S.W.2d 754, 757; Eaton v. State, 163 Miss. 130, 140 So. 729, 732. But cf. Glotzer v. City of New York, 173 Misc. 829, 19 N.Y.S.2d 174; In re Subpoenas Duces Tecum, D.C.E.D.Tenn., 248 P. 137.
Arnstein v. United States, 54 App.D.C. 199, 296 P. 946.
Cothren v. State, 139 Tex.Cr.R. 644, 141 S.W.2d 594.