298 F. 911 | 5th Cir. | 1924
Sneed and Renfroe were each convicted and sentenced to two years’ imprisonment on the fir^t and second counts of an indictment against them and one Posey, who was acquitted. The first count charges a conspiracy corruptly to influence, obstruct, and impede the due administration of justice in a court of the United States, in which was pending a civil case to which Sneed was the party defendant, by influencing and impeding one Patterson, a juror therein, by giving him whisky and offering him money to hang the jury and cause a mistrial, and that as overt acts in pursuance of the conspiracy Sneed and Renfroe had given Patterson whisky and offered him $1,000 to hang the jury, had caused Patterson to spend the night with Renfroe, and Sneed had then paid for the whisky and lodging. The second count charges that the defendants did corruptly influence, obstruct, and impede the due administration of justice in said trial, and did endeavor so to do, in that they had plied the juror Patterson in the manner above set forth, and charges further that by reason thereof Patterson did influence, obstruct, and impede the jury in arriving at a verdict, and did endeavor to hang the jury.
Arrest of judgment was moved because no crime Was alleged in either count, and because the conspiracy charged in the first count was merged in the accomplishment of the crime which was the object of the conspiracy as established by the verdict on the second count. The sentence of two years is also excepted to, in that the limit of punishment under the second count is one year. •
“It is apparent from a reading of section 37, Criminal Code (section 5M0, Rev. Stat.) and has been repeatedly declared in decisions of this court, that a conspiracy to commit a‘crime is a different offense from the crime that is the object of the conspiracy. * * * The conspiracy, however fully formed, may fail of its object, however earnestly pursued; the contemplated crime may never be consummated; yet the conspiracy is none the less punishable. * * * And it is punishable as conspiracy, though the intended crime be accomplished.” United States v. Rabinowich, 238 U. S. 78, 85, 35 Sup. Ct. 682, 683 (59 L. Ed. 1211).
Though an overt act is necessary under section 37 to make the conspiracy punishable, and though it fixes the venue of the trial, yet it is the conspiracy and not that act that is punished. If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it. Similarly one may be punished for breaking a post office with intent to steal therein, and also for the stealing itself, since the law has made each a separate offense. Morgan v. Devine, 237 U. S. 632, 35 Sup. Ct. 712, 59 L. Ed. 1153. Accordingly the sentence of two years in this case is supported either by the first count alone or by both the first and second.
“Honorable Judge Wilson: I can lay in jail, but I cannot bide the truth from you any longer, if I lose my life the day I get out of jail. I will tell the truth if you want it now.
“Unworthy juror, H. J. Patterson.”
This is assigned for error. Since the interest, bias, or prejudice of a witness is always for the consideration of the jury in weighing his testimony, a collateral issue touching them may often arise, to which evidence is relevant which does not bear-directly on the main issue. When a witness does so unusual a thing as to testify to his own misconduct, or to change his sworn.testimony, a natural question occurs as to why he has done so, and his motives may be a controlling factor in accepting or rejecting his testimony. He may swear directly to his motives, and the circumstances, including his conduct, may be shown within limits to be left to the discretion of the trial judge. Moore v. United States, 150 U. S. 57, 14 Sup. Ct. 26, 37 L. Ed. 996. This note was a part of the conduct of this witness, the very res gestee of his
Nor was there error in permitting proof from Patterson that he meant by the words “if I lose my life” that he was going to tell the truth, “regardless of what happened to him, more jail or anything else.” This was but a direct statement of his motives. Had he said that he meant to imply a threat on his life, or a fear for it, at defendant’s hands, a different question would have arisen. But his answer tended to rebut any such damaging reflection on the defendants. It was also proper to allow the prosecution to show by him that no approach was made or inducement offered by any representative of the government to produce the change in his testimony. This was information-proper for the jury to have in estimating the weight to be given his evidence.
“X went to bed about 10:30 p. m., and at tbe time Sneed was lying across bis bed dressed. IX'e later left tbe room, and I bad gone to sleep before be returned, and I cannot state when be returned.”
Thereupon the prosecution was allowed to prove the execution’ of the sworn statement, and to introduce it in evidence, over the objection that it could not thus impeach its witness voluntarily sworn. The evidence was confined by the judge to the sole question of the credibility of the witness. That a party may freely contradict the facts testified to by his witness through other \ witnesses is beyond question. That he may not attach generally the character and integrity of a witness voluntarily produced by him is also established. He may call to the attention of his witness'a previous statement to refresh his recollection, and if the witness appear to be hostile or unwilling, may be allowed to ask leading questions. Hickory v. United States, 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170; St. Clair v. United States, 154 U. S. 134, 14 Sup. Ct. 1002, 38 L. Ed. 936; Putnam v. United States, 162 U. S. 687, 694, 16 Sup. Ct. 923, 40 L. Ed. 1118. Whether, if the witness deny the contradictory statement attributed to him, he may be impeached to the extent of proving it, has been the subject of great diversity of opinion, and the occasion of many statutes.
“But the weight of authority seems in favor of admitting the party to show that the evidence has taken him by surprise, and is contrary to examination of the witness preparatory to the trial, or to what the party had reason to believe he would testify, or that the witness has recently been brought under the influence of the other party and has deceived the party calling him.”
In 40 Cyc. pp. 2693, 2685, it is on abundant authority said:
“Experience has shown that the tendency of the rule against showing contradictory statements of one’s own witness is to place a party at the mercy of designing and perhaps hostile witnesses, by whom he may be surprised and entrapped, and according to the great weight of authority, and in some jurisdictions by statute, a party who is thus deceived by his own witness may prove that such witness had made a prior statement contradictory to his testimony. * * * But a party can thus impeach his own witness only when he shows that he has been surprised by the testimony of such witness, or where he has been deceived or entrapped into introducing the witness because of such contradictory statements, and the information as to the prior inconsistent statement must have come to the party or his counsel direct from the witness.”
Moreover, there must be more than a mere disappointment in the witness, -as in the Hickory Case, supra; there muft he evidence from the witness that is affirmatively harmful. Thus, in a seduction case, a witness for defendant failed to testify as he said he would to an act of unchastity of the prosecutrix, but he testified nothing to defendant’s detriment. The contradictory statement was not allowed, as it would serve no purpose but to prove the act of unchastity by hearsay. Rickerson v. State, 106 Ga. 391, 33 S. E. 639. But the witness Renfroe not only failed to testify that Sneed did leave the room, but testified to circumstances indicating that he did not, and this was reiterated at defendant’s instance on cross-examination. It was not error under these circumstances to permit proof of the previous contradictory statement made directly to the representative of the government in preparing the case and relied on in offering the witness at the trial.
Error is further assigned, in that the writing introduced contained, beside the contradiction, many other things corroborative of the witness otherwise. These matters, however, .were not really in dispute, and no such objection was taken at the trial. If well founded, it could have been met by reading to the jury only that portion which was contradictory, or was necessary to be read in order to understand it.
The other assignments of error require no discussion, since they relate only to inconsequential rulings.
We find no reversible error, and the judgment is affirmed.