United States v. Smith, 47 F. 501

United States v. Smith

47 F. 501 | U.S. Circuit Court for the District of New Hampshire | 1891

Aldrich, J.,

(after stating the facts as above.) It is not necessary, in this case, to decide whether the common-law rule, which excludes collateral writings from the jury, will be strictly adhered to, for the reason that I find, as a matter of fact, that the respondent’s case was not prejudiced by the testimony of Davis, and the refusal to permit the comparison. The opinion of the witness was so qualified that it was of little value to the prosecution, and upon cross-examination it became more uncertain; and, in view of this uncertainty, the respondent’s counsel offered to let the papers go to the jury, and the district attorney objected. I thought at the time, and think now, that the government’s case was weakened, and the respondent’s strengthened, by this affair.

The contradiction of the respondent by showing that he testified differently before the grand jury was of a character to prejudice his case, and it therefore becomes important to inquire whether this evidence was improperly admitted.

The first objection is based upon the fact that it involved statements made in a proceeding before a grand jury. I do not think the evidence was inadmissible for that reason. U. S. v. Farrington, 5 Fed. Rep. 343; U. S. v. Kilpatrick, 16 Fed. Rep. 765.

The second objection is grounded upon section 860 of the Revised Statutes of the United States, which statute, it is conceded, was not *503in the mind of either court or counsel at the time of the trial, and was first suggested as a specific ground of exception in argument after verdict. Although it may he doubtful, under the authorities, whether the objection taken at the trial was sufficiently specific to save to the respondent the objection now taken on the ground of the statute, I am inclined, for the purposes of this case, to treat the question as fairly and fully raised. The question presented, therefore, is this: Should the statute

in question be so construed as to make it incompetent to contradict a party, who testifies in his own behalf, by showing that on another occasion, in a prosecution against another party, he, as a witness, gave a different account of the transaction, such account of itself having no tendency to criminate tho witness, but rather to place the responsibility wholly upon another? The statute provides that—

“ No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence or in any manner used against him, or his property or estate, in any court of tho United States in any criminal proceeding.”

An examination of the history of this statute satisfies mo that congress only intended to do away with the liability of criminal prosecution, and thereby remove the privilege of refusing to testify in situations where under the common law, the privilege exists, to the end that justice may be promoted by compelling a witness to testify to affirmative matter in a prosecution against others, although tho evidence sought may tend to criminate the witness as well. In other words, the object was to remove the personal privilege, so that evidence against others might be compulsorily obtained. In a case where the evidence was obtained through the compulsion of judicial proceeding, and tended to criminate the witness, the statute would undoubtedly furnish absolute immunity from any use of such evidence to sustain a prosecution against the witness. But such is not the situation presented. At the time the respondent gave the evidence which was used in contradiction, one Towne was under prosecution for forging the indorsements on the check in question, and Smith willingly gave evidence as to the condition of the check when he first saw it; his account of the transaction in no way tending to criminate, hut, on the contrary, to wholly exculpate, himself, and fasten the responsibility of the wrong upon Towne. Smith was subsequently indicted for the same offense, and, upon the trial, gave a different account of the condition of the check; and, for the purpose of impairing his credibility as a witness, the government was permitted to show that he had made inconsistent and contradictory exculpatory statements. This statute was not designed to protect a party from the consequence of making inconsistent statements for the purpose of wrongfully fixing crime upon another, and thereby shielding himself, but, rather, to protect from prosecutions based upon affirmative evidence as to transactions which involve the witness with others in questionable proceedings. It is against such evidence obtained in judicial proceedings that the statute affords protection; and, to render the statute operative as a protection *504against the consequences of contradiction, the evidence previously given must have been self-criminating, and obtained through the power of compulsion. So it follows that a witness who willingly gives evidence which does not in itself tend to self-crimination, but to fix the crime upon another, will not, upon subsequent proceedings in which he is a party, be exempt from the common-law rules as to contradictions and other methods of testing the credibility of witnesses and parties.

It often happens that justice is promoted by showing that a witness or a party has made inconsistent and contradictory statements, charging guilt upon others. If this case were to be tried again, and the respondent should give evidence different from the exculpatory evidence voluntarily given in his own behalf upon the last trial, it would at least be anomalous if such inconsistency could not be shown upon the question of credit. Or suppose, A. being on trial, John should testily that he saw B. commit the crime, and upon a second trial of the same case he should say that it was C., could it not be shown that the witness had made inconsistent and contradictory statements, to the end that the value of his testimony should be known? A construction of the statute in question which would shield a witness or a party from the consequences of such tests would at once destroy common and well-understood rules of evidence, long ago established for the better administration of justice. None of the cases cited by counsel are quite in point; yet it may be observed that U. S. v. McCarthy, 18 Fed. Rep. 87, and In re Counselman, 44 Fed. Rep. 268, on which counsel for the respondent chiefly rely, involve the self-criminating and compulsory elements, while U. S. v. Brown, 1 Sawy. 531, 536, and State v. Broughton, 7 Ired. 96, in reasoning, sustain the view which is here taken. If I am wrong in the construction placed upon the statute, the respondent has a speedy remedy by writ of error. The exceptions are overruled, and the motion for a new trial is denied.