*1
nаmely,
law,
im-
whether
tion
constitutional
before
that,
hearing
alleged
at the
a
amounted to
what
at the
offered
alien
occurred
inspector,
migrant
rendered
denial of
rights
conviction
constitutional
judgment
prove,
that the
nullity. That
judgment
resulting
the the
a
at
nullity because
was a
for incest
certainly
assumed
lightly to be
was denied
not a task
the defendant
criminal trial
to be
Attorney
fact
General himself or
in
(2) that
rights;
constitutional
his
imposed
in
which he
on the administrative officials
crime of
commit the
he did not
ap-
Immigration
far
moral
Service. So
his
pleaded guilty;
(3) that
had
pears
us,
Im-
in
years
in
record before
all
past five
had
during the
deportation migration
Service did
(4) that
good;
fact been
go
behind thе
rule that
would not
detri-
in “serious economic
would result
conviction,
they would
Assuming judgment
ment” to his wife
children.
justify
do in
an order
dis- have to
order to
Attorney
General would
deportation.
suspending
cretionary power
under U.S.C.A. §
up-
deportation
the alien
(c)
suspend
that,
may
Nor
we conclude
under
four issues
finding
on a
of these
case,
Immi
the circumstances of this
favor, yet
At-
is clear that the
alien’s
it
gration
legal
Service committed
error or
a
to entertain
torney
obliged
General is
discretion,
abuse
after
warrant for
upon
state court
such a
attack
collateral
issued,
deportation
properly
had
that the alien
judgment. Even
he finds
if
stay
denying
application for a
the alien’s
chаracter,
good
has been of
moral
enable him
warrant
order to
economic
deportation would cause
his
pardon
apply
to the Governor for
family,
does
hardship to
statute
proceedings
reopen
bring
legal
some
suspend
say
Attorney
General must
judgment of conviction.
only says
deportation;
“may”.
he
Appellant has made certain other claims
action in
review administrative
Judicial
procedural
errors in
administrative
available,
case,
all,
is narrow-
at
hearing.
them,
We have considered
ly
scope.
restricted
United States
See
them to be
find
without merit.
Zapp
ex rel.
v. District Director
Immi-
Order affirmed.
gration
Naturalization,
States ex rel. Sal-
Reimer, Cir., 1939,
vetti
Granting discretion must be ex- faith, good honestly
ercised and not capriciously,
arbitrаrily or cannot held be be an of discretion for the Attor- abuse
ney General, delegate, or his to determine that, though pre- other factual even STATES v. KLASS UNITED et al. requisites discretionary exercise No. 9374. n power present, 155(c) under de- § Appeals, Circuit Court of Third Circuit. suspended in portation will not be the face Argued 6, 1947. June judgment of a conviction crime turpitude involving moral within the five- Reargued 19, 1947. Nov. which, year period judgment so far as —a Decided Feb. ample oppor- appears, alien had tunity by appropriate procedure attack contrary If the were decid- the courts. complicate
ed, greatly administra- would cases; hearings deportation the pre-
tive inspector and the Board of
siding Immi- Appeals inquire would have to in-
gration happened criminal trial
to what ques- what be a difficult
.then decide
KALODNER, Judge. Circuit appellants were convict- three herein charging them with ed on an information *3 Regulation and violation Priorities thereto, January issued amendments Adminis- Production the Civilian Order, authority Executive tration under note, U.S.C.A.Appendix, No. § Section pursuant issued F.R. Powers Act 2(a) (8) of Second' War the Spe- 1942, U.S.C.A.Appendix, § sold, cifically, alleged to they were wilfully family dwell- unlawfully, a and one $1,500 more $10,500, price, than the maximum sales authorized the Klass was the owner and builder controversy, house in Stalford sale; Happel his latter agents the the principals on basis of were statute, aiding 18 U.S.C.A. abetting §
Four basis of asserted errors are the scope appeal: (1) The of the cross-exami- appellants permitted gov- nation of the ernment, (2) admission of evidence of alleged offenses, (3) similar evidence, charge on character Court’s relating to the Court findings as to anomalous McLaughlin, alleged Goodrich, first of these errors The two O’CONNELL, dissenting background Judges, together. be taken factual Circuit The pre- is as part. follows. Upon sented its in chief and rested. presentation conclusion of the Happel, govern- defense for Klass and and, requested objection, over men received permission Questions recall were both. relating to sales to one asked of houses Krucovsky Reddington. and to one admitted, sales were but it was denied price anything above the maximum was de- Subsequently manded received. and/or his own Stalford took the stand in defense. questions similar cross-examination respect propounded with to the same were Abromson, Mehler, Edward Max houses; sales, he admitted likewise but Newark, Kessler, J., for N. I. all Samuel having or received demanded appellants. money. defense for the three excess Rossbach, Atty., New- H. U. S. Edgar concluded, appellants government, N.J., appellee. .ark, permission court, called in rebuttal Krucovsky, BIGGS, MARIS, Reddington Martin GOODRICH, Albert Before Reddington, his father. .McLaughlin, O’Connell, Frank and ka- These men purchase appellants iODNER, Judges. Circuit testified as to development appellants, as to all least of two houses the same Happel subsequent and Stalford. times involved at house here They charged in information. cross-ex Insofar extent of appellants demand- further testified the. resting within amination is a matter price in ex- from them ed and- received court, sound discretion the maximum. cess of that established as judge properly ruled learned trial cross-examination Objections to the now con testimony with which we related, appellants and to purpose of cerned was inadmissible for Krucovsky buttal appellants. attacking credibility ground on the Reddingtons were overruled is, indeed, as to whether There a conflict *4 so went that adduced evidence in convic resulting acts of misconduct not issue of intent and subject of cross-exаm tion are the wilfullness. impeach Cf. Little judge ination to witness. jury, the trial In his to the 1937, Cir., 93 F.2d States, v. United may only for the 8 stated: “You consider 644, 401, 409, certiorari 303 U.S. denied and wilfullness intent purpose indicating 1105; 643, 58 United States S.Ct. 82 other L.Ed. Krucovsky evidence 730; 725, Cir., 2 3 Sager, 1931, v. 49 gave that F.2d father who young man his 1940) Sec Wigmore (3rd ed. on Evidence testimony.” contended The 983, v. Mont tions 986. In United States below, here, that the evidence does so Cir, 1942, 151, gomery, 3 126 question of cred- F.2d adduced bore on so 681, 155, 62 316 U.S. wilfullness. certiorari denied as intent ibility as well said,, 1268, 1754, 86 we L.Ed. S.Ct. respect recalling of With “ * * * respect- the rule with we believe ordinarily a Happel, Klass and impeachment conviction, as- for former to the discretion of the matter left generally applied by in crim fedеral courts prejudicial error perceive no judge, we cases, only inal to be that it is convictions- per here. on that score se felony amounting to or misdemeanors scope government’s First crimen falsi are to im admissible ' cross-examination: peach credibility.” This witness’ re be stated At the outset it should impeaching purpose flects the true evi the well-settled question we dence, personal turpitude do to disclose the himself as offers that a defendant insensibility rule who to the obli witness and has the same in his own behalf a witness gations speak of his oath truth. privileges the same limitations States, Cir., suffers 1931, 10 and. Coulston United 51 v. generally. in witnesses Rea 178, which inhere why There is 180. no reason F.2d 301, States, 1895, 157 U.S. gan v. Unitеd exacting should less standard where 709; 305, 610, 39 15 L.Ed. S.Ct. no conviction is involved. See Simon v. Johnson 1943, States, 189, 318 v. United 63 States, 80, Cir., 1941, 85, 4 United 123 F.2d 704; 549, L.Ed. Brown v. S.Ct. 87 694, 412, 62 United certiorari 314 U.S. Cir, 383, 386; States, 1936, 3 83 F.2d 86 L.Ed. Bradley, Cir., 1945, 152 States v. 3 United government urges im 425, F.2d lay only peaching substance in the com examination, offense, direct mission of another similar but also- neithei appellants’ Happel nor Stalford testified the contradiction of the testi on sub Klass, mony ject sales of houses. on the rebuttal of other on cross-examination examination, Krucovsky Redding and the state that direct did he had not Except in the record “bought other houses besides event or sold tons. conviction, contradictory apparent extrinsic it is While one”. that, being long agency, admissible, settled thinking terms neverthe is not the witness cross-examination he admitted the answer of on cross-exam less on respect do not matter- We believe that the whole ination with collateral sales. impeachment price purposes subject insofar as other introduced for con transac was thereby-opened inquiry. United concerned cludes States No-- tions were v. the evi 107, 109, below admitted 1941, cer- Cir., vick, 2 124 F.2d 795, 813, above 62 S.Ct. dence related 315 U.S. tiorari denied Nettl, intent relevant and wilfullness. 1212; United States v. 86 L.Ed. acts, 927; is true that other criminal 1941, while Cir., 121 F.2d Cohen v. United 30; 28, competent evidence, admis ordinarily 1932, are Cir., States, identity, intent, motive, States, supra; Sager sible to v. show Coulston United v. Boyd plan, scheme etc.2 United States, supra; Smith 788; Stаtes, 142 U.S. New- States, Fawcett, Cir., 1923, United States v. 289 F. man 764, 768, 132 A.L.R. States, 1942, cf. Martin v. United 404; 2 ed. Wigmore (3rd on Evidence U.S.App.D.C. seq. 1940) Section 300 et see also supra; Simon v. United 155; Wigmore (1914) 14 Col.L.Rev. parties argued the mean 1940) (3rd Section Evidence ed. “wilfully” ing of the term used Jones, Law on the of Evi- Commentaries e., Regulation,4 whether statute3 i. (2d 1926) 2367.1 It ed. Section encompasses “evil intent.” We be noted Coul- Sager, Cohen and no patently specific intent of the view that *5 approval in alleged ston cases were with cited is in the crime to have involved supra. Montgomery, appellants. States v. these by United committed been denied 314 U.S. stein, 90 stated. admissible in of that der al 718, missible for 4 that fully 1622, holds Powers L.Ed. 555. The 123 F.2d dicted, examination were certiorari diсtion; 328 United prior v. quired by, any misdemeanor any provision of Harv.L.Rev. 988. willfully hereafter court vides, “Any States, 633, provides, sion of rari denied 326 tion 1 Dowling 2 3 Cir., rule has United This Section Section L.Ed. U.S. the answers thereunder, 721, (a) 2 in convictions performs States v. holding, 1941, Similar Fact 6 Cir., form its but see Simon United Act, fails or 604, Cir., denied Gould United 848, 462, States, issued, been 2(a) 944.34 Bros. discretion person otherwise where 1945, 123 F.2d other of statement * * evidence any where it “Any United 1946, 153 66 provision where the evidence was however, criticized. any U.S. whether heretofore Skidmore, Cir., 1941, rule, 694, were cases cited Distilling 9 (n) perform shall sought S.Ct. event. 151 U.S.C.A.Appendix, the witness who *.” Cir., reasons as Evidence, person act regulation 766, allows 62 S.Ct. regulation, States of P.R. 33 80, 85, shown, was v. v. F.2d does the Second Wаr be wilfully 1120, 1947, F.2d prohibited, to be contra 66 Stone, Co. v. United In 7 any who likewise ad guilty this subsec cases 915, v. Ruben S.Ct. (1938) certiorari except 353, 361, 90 L.Ed. the trial Schwartz 160 412, or support act violates contra willful- therein States, appear States, Exclu certio gener or or where cross- of a F.2d who, pro- 168, re 86 or or § 142 F.2d ber of 381, that an was 242, in 801, certiorari denied Act United States v. tral U.S. in tent”, used tion 159 F.2d Gomila 1942, contemplation fully Zimberg U.S. 2d hibited tarily F. U.S. ton States, es false or cf. Stein States (b); [5] a crime. United States v. connection Fish, Agency feature. 58 Railroad in connection conceals material stamps, 254, 834, 389, 712, rather, as or 1942, the basis of a distinction act 8 cases have v. S.Ct. in United information to Inc., v. distinguished 132, 137, 737, Cir., Angelo, Cir., 1946, “evil 1006, reveals 394, 65 S.Ct. United is * * * Second Wаr 50 533, done an with 742, Co., Careful Emergency 1945, like, 54 United Cir., purpose”, 1009; Kempe U.S.C.A.Appendix, is sufficient Stein, the term United inherently distinguish that 82 States, States v. knowingly certiorari ” certiorari denied 1938, States, S.Ct. with this 980, been Murdock, 1933, is 38, 151 L.Ed. perusal there States v. any Department fact regulation, 90 L.Ed. States 89 Powers counterfeit F.2d 223, 303 U.S. found Price Control “criminal 6 1 9 “wilfully” Illinois 773, accidentally. if the within L.Ed. denied 328 or furnish- Cir., Cir., 1944, Cir., and volun of United v. United 1946, 680, 78 see Wil is a num holding George Act of 156 F. drawn guilty L.Ed. § 1946, 1946, Cen pro 688; 239, wil- 323 290 925 ra in as case, they instant the issue was (cid:127)which are the individual manifesta- by (Emphasis text.) that tions.” government’s
framed $10,500, a sum house been sold for is also trial court suggested maximum, appel legal excess pass upon the beforehand should offer lants’ that the sales contrary contention еntirety it in its whether, see if offered price gf $9,000. legal was the maximum sufficient satisfies the test appellants they knew of admitted sanctioned, to go jury, Regulation and also that knew forth- quire it will assurance permissible price maximum sales coming entirety. in such Mistake, cir accident, house. or dealing evidence we are Here exculpation attempted cumstance of was not recog long been the nature which has to be on their behalf. asserted Accord as well dangerous, nized ingly, the was whether single critical issue others, point view of from the $9,000 $10,500. the house was for sold procedure admit It is never and fairness. Krucovsky The rebuttal evidence of circumscribed, closely unless ted its use therefоre, by Reddingtons, irrelevant was away being to objective cut the ultimate permitted, clearly the time it its harmful insofar otherwise controversy. fact of was not in intent re effects. We doubt that evidence further seeks the admis- standard; par necessary corded meets the sion rebuttal evidence ticularly Reddingtons within exception comes another jury has But insufficient. where exclusion, is, general rule of precise purpose instructed as plan. Plainly relates to scheme or this is admissible, we for which urged an after-thought, the first time *6 to not to the are inclined allow evidence appeal. on this not The court below did wholly theory injected remain on new a pass upon evidence, efficacy of nor the the appeal. the first time on into the for cause use, jury the instructed in this was as to its that Accordingly, we conclude there respect. Hubby See v. United prejudicial respect cross- with to the error Cir., 1945, Martin v. appellants, with the examination of and is, moreover, States, supra. There United respect to of sub- the rebuttal evidence requirements sharp between the distinction sequent similar offenses. showing showing for intent and those error, plan. Wigmore by scheme or Evidence The third asserted Stalford, (3rd Wig- appellants, 1940) Section Professor ed. relates work, pointed out, charge part in that more 202: below on the of the court played of in the ultimate determination very aсt doing “When the by character guilt evidence adduced proved, is still to be one of the evidential The on their was instructed jury behalf. person’s Design or receivable is facts as follows: ** * to do Plan it. But where produced the defendants “Some merely in doing conduct consists offered reputation what are known as witnesses. acts, is other similar obvious that they gave is evidence valid evi- required something is than that mere more by you with must be considered similarity, evidencing which suffices for all the other evidence it- object merely here is Intent. The self be basis a reasonable doubt. intent at the innocent time negative an separate But it must be considered pre-exist- charged, prove but a act apart evidence, from all the other nor scheme, plan, or design, system, directed reputation * * * alone evidence bear with should doing of that act. forwards against you overwhelming evidence indica- element, then, be, must The added tive results, similarity but such merely a common that “It must be considered with all of the concurrence a features naturally weighed are acts to(cid:127) be evidence and various ex- other with that.” supplied.) plained general plan as caused a (Emphasis “ * * * mately infer recently reiterated from the declaration We have reputation applicable treatment of nor should bear evidence alone rule you against overwhelming States v. In United evidence reputation evidence. Cir., 1947, guilt” we indicative if Frischling, 3 that it first found “overwhelming” indicating merely said: evidence guilt, justifiably disregard repu- could it is the long “It has rule that tation evidence. jury duty judge of the trial instruct de reputation in substance Sunderland that put 202, 215, character, in evi the rule stated good fendant’s when F.2d requiring setting an dence, is fact which consider instruction forth should which, purpose (1) the case and of such with the other function evi- facts facts, dence, doubt; may, viz., generate a considered, so like other reasonable when (2) probative evidence, generate which would status of such reasonable doubt viz. acquittal. it is to be justify Edgington United entitled considered States, 1896, whether the other evidence doubtful; States, Cir., clear ef- Cohen v. Quick, evidence, States v. fect viz. when F. evidence, 832.” considered with the other reasonable is created as defend- doubt portion quoted italicized guilt, acquittal. ant’s he is entitled to argument attacked here. course, proof good Of mere of an destroys that that statement the effect does not entitle a defendant to a verdict of proper charge otherwise that the character acquittal. Quick, Cir., United States v. along evidence must with all be considered 836. We do not hold the other evidence in the case when proper expression here cannot be found may generate so considered a reasonable guard аgainst reputation abuse doubt. room, but we con- reaching It is obvious that on the con- strained hold guilty beyond clusion defendant is very this case was at the least confusing ceases; doubt, reasonable function prejudicial. *7 nothing there remains but communication theory support The in of charge the as fully of verdict. The court the below dis- given simply is may express the court that accepted proof cussed the standard of thought the the jury that the other evi- quired cases, of the criminal in may dence in the convincing case be so that doubt, beyond viz. a reasonable and ade- worthless, reputation evidence is as where explained quately meaning the of that fifty eye testify to the witnesses commission phrase jury. to the The italicized state- by the charged. defendant of crime the In ment, is, very least, confusing at the when reality, is not so much that notion effect, connected compared that In standard. the reputation the use of is with evidence as it judge jury learned trial instructed the that the of the doubt with reasonableness finding which “overwhelming” on evidence merely might jury analysis, the entertain. the indicating guilt, reputation the evidence expression theory merely is the of a you,” is, must not “bear with fear that must jury the will adhere that not to the direc- jury may considered. not be well respect thought phrase tions the court with the mean- equi- have the “beyond “beyond ing of reasonable doubt.” valent of a reasonable It can- doubt”. However, jury lightly quite jury be assumed properly could that con- clude, acquainted legal obliged indeed we think was has with it to con- definition phrase that clude, something trap less was that into the intended and of will fall envi- point some only that at It need of its de- sioned. be noted here course that before it guilt Edgington liberations was convinced of decision in doubt, beyond reputation a reasonable page at 17 S.Ct evidence, believed, though even must be we are committed to the consideration; dropped from legiti- it could proposition, therein, stated * “* t- character, guilt,” con- did whelming when indicative of evidence good evi- not carry previously with out thе sidered in connection the other command case, evidence may generate a reason- to the jury that all credible may every be must able doubt. circumstances reasonable be such as to exclude good hypothesis reputation for such that an established but that issue, character, it if is relevant Finally, that there contended doubt, would alone create a reasonable respect error jury although, it, the other without evidence guilt. The findings anomalous sup- convincing.” (Emphasis would be part fol- charge complained of is as plied). lows: Quick, supra, we fol- States be a you “The return will verdict as saying, lowed decision for each guilty guilty verdict of 128 F.2d : say these this to defendants. I will But you, contradictory be it would equally “But it is true evidence the builder you anomalous were to find along character, considered good when guilty; be- two guilty and the other case, with all of the other evidence brought cause specifically they are may rea- be factor which creates abetting. Keep aiding and a defendant to sonable doubt which entitles mind, no- please. You can’t and abet aid jury. Edgington acquittal by body. object of States, supra. very you weigh “So as it will the evidence raise introducing evidence is to you, each comes before relates jury minds a reasonable doubt these defendants.” guilt.” the defendant’s ap- It noted the three should be that of reputation A pellants, only question Klass raises requirements must meet thus set forth propriety although in charge, who evi and the defendant adduces such exception behalf below was taken on considered, if entitled to have it dence is effect, Klass, urged by all. It believed, all the along with other evidence although was instructed to return in the case until the is convinced of guilty a verdict for each of guilty or not beyond reasonable'doubt, guilt no mat appellants, jury might con- convincing ter how the other evidence following cluded' comments That, assume, appear pur we be. acquittal instruction that a verdict port of the statement in the Edgington “ improper. * be * * although, it, without convincing.” evidence would With the advent of Section 332 *8 evidence, logically if all follows that the 550,6 Code, of the Criminal 18 U.S.C.A. § evidence, including reputation the convinces (cid:127)it accessory became certain that the beyond jury the reasonable doubt the a of felony occupied either a or misdemeanor inquiry the end. guilt, defendant’s is at an position accessory the same to a early misdemeanor at common law.7 It is the in- Sight lost of must be fact necessary principal the be jury. masse actual given structions en are the convicted, tried nor material or is it opportunity not have the scru- the It does of acquitted. principal has been actual tinizing directions it.- will the aider and abettor the impression from be with reading derived the offense, generally prevail. participant will We believe the substantive each impression conveyed by language patent the must on his stand own two feet. Cf. reputation States, charge Rooney Cir., the “nor should evi- v. United 9 203 Kelly States, you against F. see dence alone bear with v. United over- any Regina directly Burton, 6“Whoever commits act Cf. 13 Cox C.C. constituting (1875); Cyclopedia Brill, an offense defined in see. States, abets, aids, or law the Criminal Law counsels, commands, induces, procures or commission, principal.” its 392, 402; jury United out and Vesely reads verbatim the last F. pronouncement Bacon this on sub- States, Cir., Court F. Cir., 1942, ject. A line decisions tends which v. United require 985, 987; stereotyping Patzoll v. United of instructiоns to Von juries unfortunate. certiorari cf. also October States, 1948, McLAUGHLIN, (dissent- Sealfon Judge Circuit part). inconsist- true that While is generally not be disturbed ent verdicts need agree judg- I majority with the that the
view,8 denying to the reason for there nois against de- ment of conviction all upon authority comment judge trial er- be because fendants should reversed logic of the situation. charge respecting rors in trial court’s character anomalous difficulty However, particular with agree findings I as to do not that the quoted' lies assertion of scope of permitted the cross examination guilt, interrelationship of from which the disputed the admission of the rebuttal testi- any it jury that to convict conclude mony agree constituted error and with is clear to convict all. The error Judge O’CONNELL’s views on dissenting Klass, altogether free but it is not questions. these Happel could not doubt that Stalford and affected; have been we note O’CONNELL, Judge (dissenting Circuit reason that case is to be retried. part). stated, judgments For the reasons my opinion, only judgment entered be remanded will reversed and cause against defendant should be reversed Klass grant trial. directions a new trial, remanded for cause a new judgments against Happel defendants GOODRICH, Judge (dissenting Circuit pur- and Stalford should be affirmed. For part). poses convenience, I shall discuss agreeing While must be a re- there pre- issues the same order as versal, it seems to me unfоrtunate that one majority sented in opinion ground the Trial court. Judge testimony. seems Judge pretty obvious that what the scope A. cross-examination telling perfectly com- doing the admission testimony. the rebuttal proposition mon sense effect that if persuaded I am questions asked direct proving there sufficient prosecution defendants and the particular particu- man committed a receipt of the rebuttal testimony were at offense, lar the fact that that man has a least matters judge could reputation may good unimportant. become properly Voluntarily exercise discretion. I cannot think that what was said to the taking the behalf, stand in his own misled way. them And I do direct examination had testified fol- building up think that this Court is lows: requirements of fine-line series and dis- *9 (Klass’ counsel) Mr. Abramson : “Had tinctions in connection with this character you any built other houses this?’’ before rule that a Trial Judge soon will find him- “No, sir, self free from only copies reversal if Mr. Klass: he I didn’t.” States, 1932, 8Dunn 195; v. 17 A.2d 284 U.S. Mowad, Commonwealth v. 390, 189, 356, 1939, Super. S.Ct. 80 A.L. 537, 136 Pa. 596; 7 A.2d 161; 931; R. Kline, Harv.L.Rev. 1933, Commonwealth v. 107 Pa.Su States, por. 594, 1932, 599-604, Borum v. United 590, 284 U.S. State v. 124; 164 A. 205, Bullock, 198, 76 L.Ed. see 132 A. 195, N.J.Misc. af Wade, 1944, 1926, Commonwealth v. firmed 204, Pa. 103 N.J.L. 134 A. Super. 88, Handy, A.2d State Commonwealth v. Del.Gen.Sess.1907, 66 A. Kirk, 1940, Pa.Super. 147, 123, v. 336. 914, 14 A.2d affirmed Pa. way admission, by house the first vanee relates “This to the Mr. Abramson: is rebuttal, of testimony wit- you ?” received ever built Rothman, Friedman, nesses, Gustin and as “Yes, Mr. sir.” Klass: overpayments to each them made to bought you ever Mr. “Have Abramson: to Gould under similar those circumstances one ?” any or sold other houses besides indictment. This' evidence “No, sir, I Mr. Klass: didn’t.” incompetent is as because sharply attacked than questionable tended show crimes other those It to that this tes- to me seems indictment, also explain charged at- merely in the timony was elicited proper in rebuttal. in real experience as man tacked as not dealing Klass’ however, Gould, appears, It estate, part seeking while of a defense as defense, position his own had testified not one to establish that was witness any sold readily adaptable he never to a violate cross-examination that scheme to event, whiskey ceiling. It was regulations. over the In priority Gould, credibility of opened going door rebuttal his own accord infirmity, any, might have at- if inquiry whatever into the nature his real estate is inevitable, after tached to it in circumstances. virtually It was activities. well evidence otherwise cross-examining govern- established that defense not become inadmissible obviously directed admissible does ment witnesses had its other of- credibility merely because it show toward tends impeaching efforts reception witnesses, its charged, defense af- fenses those and after the the Court. within the sound discretion firmatively sought prove a diametri- cally contrary that the credi- facts, [Citing set cases.]” Bros, bility of like- the defense witnesses would Dowling case seems to mе subjected piercing wise be cross-exam- inconsistency resolved ination such rebuttal as was testimony have existed in the court might previously connection, might In this available. majority opinion, and decisions cited in pointed Krucovsky out sales to testimony supports admission Reddington did come the atten- judice. case sub that adduced Attorney until the tion of United States If was admissible as affect the evidence Happel day and Klass were recalled when credibility, defendants would be com Consequently, believe that to the stand. I argument that pelled to resort to questions asked defendants and the in- admitted the below nonetheless evi testimony rebuttal direct- troduction purpose solely аllegedly for another completely ly affecting credibility their preju improper, this constituted and that proper.1 For the I shall moment as dicial error. court below arguendo sume erred principle support of the outlined In testimony purpose for the admitting the above, Distilling Bros. Co. Dowling so, Even States, Cir., 1946, proving intent wilfulness. appear me to refute the conten denied Gould United cases certiorari thereby error reversible com tion that 66 S.Ct. 90 L.Ed. mitted, particularly when it 1622, rehearing is noted that 329 U.S. Attorney States offered tes with a set of facts not the United unlike credibility.2 affecting apropos. In timony partially judice, sub those words, grie- Haywood own “Another the court’s explanation 2 opinion, рosi price majority takes the United States 1The offering was, questions Attorney as to tion sale your beyond plain legitimate scope purpose, Honor “The went upon long-established cross-examination, particularly please, based *10 permits prepared Happel and I am not of similar Stafford. line cases which ques say matter law at time that as a of transactions about same of to question germane, especially bearing wiffulness, not when tions were being question question intent, of recalled defendants were of joint upon having (Emphasis supplied.) truth." tried regulation. priorities ly violated the
383 795, 1921, 268 F. denied 256 U.S. performance certiorari sists of “the prohibited of a 449, 1172, 689, in 41 S.Ct. act performance 65 L.Ed. wilfully.” itof conspiracy by a Cir., volved officers of See also Wilton v. United 9 1946, the execution 433, Furthermore, violate or obstruct I.W.W. to 156 F.2d 435. laws, ob of various federal the defendants appealing at least one defendant here jected receipt to of matters in evidence by deemed important wilfulness is attested antedating passage two the stat requested fact that Klass’ counsel said, review, appellate court utes. court charge is a neces- that “wilfulness ” * * * F., page at “If court erred 806 268 sary ingredient of the offense admitting ground them the circumstances, Under the it was I think probative establishing had force hardly superfluous the United States counts, criminal intent in these Attorney рrove, to set out to and for the were harmless the matters ruling was judge put government any ground.” (Em admissible on establishing, task of that the behavior of fact phasis supplied.) In United Silverman v. wilful; defendants was for the failure to States, Cir., 1932, 636, 1 certiorari might do so have been criticized well later 640, 89, 1932, error; reversible nor can defendants 554, the trial court was assumed complain L.Ed. adoption greater bur- have admitted certain bank balances proof evi den of by the than the contradict the of the statements required. circumstances have Prov- defendant that her husband a little ing wilfulness by introducing evidence of antique shop. The were bank statements other acts of a similar nature has been purpose, not admissible for that but could permissible by deemed this court in two re- have been admitted to show financial deal Fawcett, cent cases. See United States v. ings inconsistent with the defendant’s oc Cir., 764, 768, 1940, 115 F.2d 132 A.L.R. cupation said, 404, housewife. court Bradley, and United States v. F.2d, “Being at admissible 1945, 425, 426; 152 F.2d United see purpose, this the evidence was Platt, Cir., 1946, 326, States v. [latter] prejudicial because it was admitted on 327, and 1 Zoline’s Federal Criminal Law grounds, erroneous and on the record the Procedure, 360, pages 359 and 299- §§ fully verdict seems have been [Citing warranted. See Rule also cases.]” stated, impelled I For the reasons am 52(a), Federal Rules of Proce Criminal the conclusion that the trial court did not dure, following 18 U.S.C.A. section choosing per- commit reversible error Wigmore 13, page and I on Evidence, § mit the cross-examination tes- rebuttal timony challenged. here Moreover, am means I no convinced B. The charge on character testimony. wilfulness that intent or was not a neces- sary In charged. Quick, Cir., element the offense States v. Angelo, Cir., 1946, 832, 835, United States v. 153 128 F.2d this court had occasion page 249, analyze requirements at court detail the took the penal position provisions “The charge as to character evidence. It apparently undisputed basic statute Second War Powers Act that all standards [the applicable only Quick met; have to violations been but the 1942] charge which are statute willful.” I seе nonetheless no has been here held why this fatally reason statement should be lim- because defective of the inclusion involving ited to cases counterfeit ration of the “overwhelming evidence” clause. stamps, why agree portion nor the situation I here under While consideration warrants a different fully result. more Also, States, Cir., drawn, Stein v. artistically prepared more am I page 741, certiorari de- say an ade- nied 328 U.S. quate basis for weighing and 1610, was stated that an offense considering the evidence. Reading the against the Second whole, War Powers Act con- as a I believe that in- *11 SHELL CO. v. char- concerning the PHILLIPS PETROLEUM
structions CO., OIL Inc. and confusing not so testimony acter were No. er- prejudicial misleading as to constitute Goodrich, I think my Like brother ror. Appeals, Fifth Circuit Court Circuit. testimony stereotyped charges on character 1, 1948. March judges prevalent trial unless will become April 14, Rehearing Denied expressing leeway permitted some such tes- weight should accorded what that, timony. It should be noted er-
event, Happel reversible cannot assert no since charge,
ror on the basis his introduced
behalf. possible anomalous
C. The find- ings majority
I agree with the decision affected substan- rights of Klass were by intimation
tially prejudicially and improper if acquittal would be guilty.
Happel were found and Stalford however, opinion, error could my ground for the be asserted Happel and of the convictions of
versal
Stalford, ques- has only Klass because both charge, and be- propriety
tioned provide error was to
сause effect of the for unwarranted an additional and basis e., Stalford; acquittal Happel and i. guilty, it
had the found compelled similar felt to return Happel Stalford as in favor and
verdicts Moreover, judge likewise
well. “If, however, you Fletcher, City, jury that instructed the Louis D. of New York Bartlesville, Old., of these other two and Young, one or both Arthur find J. simply Houston, Tex., Martin, were sales for [Happel Vincent Stalford] J. proposition agents appellant. didn’t enter into the abetting, they could aiding then City, Kenyon, of New York Theodore S. Klass (cid:127)atas principals, because be held as Ill., Benjamin Schneider, Chicago, B. govern- and the builder Tucker, Jr., R. Brady Cole and Garrett they aided ment, you is that have told as I Tex., appellee. Houston, for both of abetted, him and advised counselled SIBLEY, HUTCHESON, and Before supplied.) (Emphasis assisted him.” McCORD, Judges. Circuit Happel and Accordingly, not see how I do adversely affect- have been could Stalford SIBLEY, Judge. Circuit fact, which, in was sub- charge, ed 1941, Phillips Eve of Pe- On Christmas by Happel’s at- requested stantially that Company Shell Oil Company sued troleum torney. 2 of infringement of claim Patent No. comments, I foregoing May, plaintiff 2,002,394 issued In view Frey, against seeking entered judgments the inventor assignee believe affirmed, profits injunction accounting Stalford should be Happel and 'infringe- defendant denied against damages. Klass should judgment and that patent ment, was void for cause remanded and claimed and the be reversed art, prior invention in view lack new trial.