102 F. 134 | 5th Cir. | 1900
(dissenting). The two defendants,
Leefe and Wolfson, were tried on the same indictment, and before the same jury; each of them having different counsel. Each of the numerous counts in the indictment charges and shows a distinctive, substantive crime. A number of the counts charged such crimes as occurring dehors the statute of limitation. All of these counts were nolle prosequied. fin considering the reasons herein given for dissenting in this case, it will be necessary to keep in mind that this is not á case in which Wolfson, one of the co-defendants, could be found guilty unless the evidence also convicted Leefe, the principal.
T think the evidence of Moxey, to which objection was urged, should not hare been admitted: First, because it related to substantive offenses nhich occurred, if they occurred at all, dehors the period of limitation; and because it was directed to the purpose on the part of the government (though this purpose is denied by counsel for the governmeuu) of proving that defendant Wolfson was guilty, or had been antecedently guilty, of a distinctive, independent, extraneous crime, which crime, if commit ted at all by defendant, was begun and completed so as to subject him to indictment before the day when proscription began to run in his favor. The statute of limitat'on, it is conceded, began to run on the 21st day of April, 1894. The statute is as follows:
“No person shall be prosecuted, tried or punished for any offense not capital s. ⅞ ⅛ unless the indictment is found or information is instituted within three years after such offense shall ha.ve been committed.” Rev. St. § .1014.-
It was conceded on the argument that the testimony of Moxey, if true,' showed conclusively that Wolfson had committed an independent, extraneous crime antecedently to the above date.
The rule, as to prescription or limitations'seems to be founded on public policy. Such policy suggests two reasons why a defendant, even though the facts in the case might show, antecedently to said date, that he had committed such a crime and acts as would, in law, incriminate him in an indictable offense, should not be “prosecuted,” “tried,” or “punished” for such substantive crime after the time fixed iu the statute had elapsed. The basic principles on which the moral reason of the rule is founded, I suggest, rest on our common knowledge of things. The reason of the rule suggests that with a lapse of time men often give up evil-doing and become more law-abiding citizens; and, secondly, that, after the lapse of the time fixed by the statutes, the courts, because of the infirmity of human methods and
The testimony of Moxey as to objectionable extraneous matters was earnestly objected to by Wolfson’s counsel on the ground that the government could not, for any purpose, iu the pending case, go behind the line which in law divides the present from the past, of ihe defendant. The district attorney urged that the evidence as to substantive crimes dehors the statute, ex necessitate rei,' should he admitted, so that he would be able, after proving such crimes, to prove the fraudulently false condition of Wolfson’s account on a day within the pre-scriptible time. It was contended by him, notwithstanding the bank’s books on the 21st day of April, 1894, showed a credit in Wolfson’s favor, that as a matter of fact on that day he was a fraudulent debtor to the hank, and had no funds to his credit therein upon which he could lawfully draw. In order to prove this contention, the court allowed Moxey, after saying that Wolfson’s account was apparently not overdrawn upon the said day, to state, substantially, that as a matter of fact it was largely overdrawn by him, and that he was in fact a fraudulent criminal debtor, and not a creditor, of the bank. Moxey was allowed further to say, substantially, that Wolf son had repeatedly been guilty, antecedently to ihat day, of feloniously overdrawing Bis account with the bank; that he had often committed distinctive, completed, extraneous crimes similar to Ihe crime for which he was then on trial. If Moxev’s testimony was true, it follows, of course, that. Wolf son was criminally implicated in, or guilly of,’such extraneous crimes. It appears that the trial judge zealously endeavored to keep Wolfson from being “proseenled” or “tried” for such extraneous crimes, and sought earnestly to forbid the jury to enter upon Ihe trial of him for any such offenses; but was it within the possibilities of judicial suggestion, under the proceedings that were then going on, to forbid him to be “tried,” if not “punished,” for the extraneous crimes about which Moxey testified? In the very nature of things, whether we judge from the matters and things that were then going on in the court in the pending trial, or from our knowledge of the effect that
Considering these matters further, it will be seen that there are two material elements in the crime charged against Leefe and Wolf-son, viz.: The commission of the act itself, of overdrawing, and the felonious intention in committing such act. The mere act of overdrawing his account would not be criminal in Wolfson. To incriminate Wolfson in the. acts of Leefe, it must be shown that the overdrawing was fraudulently effected against the bank, and that the principal and accessary acted, in the overdrawing charge, in the exer-cisé of a felonious intention common to both of them. It matters not at what time the felonious intention came into the mind and purpose
Cases in which the legal effect of the statute of limitations was not at issue or discussed can be readily cited, from the reasoning in which authority may be deduced for allowing the prosecution to offer evidence to show that a defendant answering to a charge of counterfeiting, say, “did at or about” the day laid in the indictment pass similar spurious coin upon other persons. Of course, this could for no purpose be shown until after, in the pending trial, the defendant was by sufficient evidence criminally implicated in the material matters for which he was being tried. After defendant was criminally implicated in passing spurious coin at a time within the statute, it would he competent for the prosecution to show that he had in his possession spurious coin at a time dehors the statute. Similar cases, too, may he cited, from the reasoning in which authority may he deduced to allow the prosecution in the trial, say, of a person for horse-stealing at a date fixed in the indictment, to offer testimony to show that the defendant was seen frequently at or about the barn or lot from which the horse was taken before the statute began to- run; for being frequently at the barn, even with an intent to steal, whether before or after the date the statute began to run, is not a criminal act. Taking the horse, within the statute, with felonious intention, makes the material element of the crime. To allow the prosecution lo offer evidence to prove in such a case, contradictorily with the defendant, that he was often antecedently at the barn, or that he was seen ante-cedently with a halter similar to or the one found on the stolen horse, could not be objected to on the ground that testimony showing an extraneous substantive crime was sought to be offered by the prosecution; but if the person on trial had, as a matter of fact, stolen a horse, and therein committed a completed, felonious act, the line of reasoning I have suggested would forbid the government to offer testimony, for any purpose, to show incriminating circumstances against
Putting aside the reasons I have given to show error in allowing .Moxey to testify to substantive, extraneous crimes occurring ante-cedently to the statute, I think there is another reason why the trial judge should have forbidden Moxey’s testimony to be heard, for any purpose, at the particular time he was asked the objectionable question. It is conceded that at the time Moxey was allowed to show incriminating facts as to the extraneous crime there was, as a matter of fact, no evidence of any kind showing that Wolfson had criminally overdrawn his account, as charged in the pending case; that is, there was nothing at that time to show Wolfson’s guilt under the indictment. Under the jurisprudence relating to the admission of evidence in criminal cases, it is clearly established, as a general rule, that “it is a violation of the fundamental sanctions of our law to admit evidence that the defendant committed one offense in order to prove that he committed another.” Whart. Gr. Ev. §§ 37, 38, 48. We are not permitted, while trying the case against Wolfson, to go backward; that is, find him guilty of the last extraneous offense, and then take that as a factor to establish his guilt in the matter directly in judgment. Before evidence against the defendant relating to a "substantive, extraneous crime can be offered by the government for any purpose,, the text-books, as well as the authorities in cases in which such matters-are put in issue, clearly show that the ground must be first laid, implicating the defendant in the case on trial, and, unless sufficient evidence of this has been received, all evidence of other substantive, extraneous offenses, even to prove intent or systematic purpose to commit similar crimes, must be excluded. The extraneous crime cannot be put in evidence without first proving, contradictorily with the defendant, that he was concerned in the commission of such crime. When that has been shown the prosecution may offer such evidence as may show his guilt therein, for the purpose of showing a systematic purpose on the part of the defendant to commit such crimes, or to show the intention with which the acts proven in the pending case may have been committed. The rules I have stated, substantially, are found in Wharton’s Criminal Evidence, beginning at section 31 et seq., and authorities cited therein; and they are amplified in the case of Williams v. State, 38 Tex. Cr. R. 129, 41 S. W. 645. The court therein cites text-books and authorities extensively, as well from 'other states as from Texas. I have found no United States authorities in which the point is considered.
When the testimony of Moxey relating to extraneous crimes in which the government sought to implicate Wolfson was being offered, the trial court should not, under my view of the authorities cited, have
“Where the intent of a party is matter in issue, it has always been deemed allowable, as well in criminal as in civil cases, to introduce evidence o£ other acts and doings of the party of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly In .judgment.”
The opinion just cited does not discuss a criminal case. The suit therein considered was a libel of information in rem to forfeit goods illegally entered in the custom house. The evidence was not objected to because it tended to prove one crime by showing defendant’s guilt in another, nor was it objected to because it was offered at a time in the pending case when nothing had been shown to incriminate the defendant in the matter directly in judgment. It was offered by the government to show that the defendant had antecedently made fraudulent, hut not criminal, entries. The opinion of the court cites the case of Moore v. U. S., 150 U. S. 57, 14 Sup. Ct. 26, 37 L. Ed. 996, lu that case it is said:
*142 “The government relied mainly on circumstantial evidence tending to show that the defendant was also guilty of the murder of a man named Camp.”
Objection was interposed to that part of the evidence. Mr. Justice Brown, speaking for the court in that case said (page 61, 150 U. S., page 28, 14 Sup. Ct., and page 998, 37 L. Ed.):
“The fact that the testimony, also had a tendency to show that the defendant had been guilty of Camp’s murder would not be sufficient to exclude it, if it was otherwise competent.”
The words “if it was otherwise competent” disclosed the thought that was in the mind of Mr. Justice Brown, and support the suggestions I have made as to the inadmissibility of the testimony before Wolfson’s guilt was established in the pending case. Until his guilt was established in the pending case, the testimony would be incompetent, and such testimony as the justice was discussing could not be competent until after incriminating circumstances against Wolfson were established. Clearly, it was not necessary for the supreme court, in considering those two cases, to pass upon the legal effect of the exception to the general rule I have cited above. The exception was not invoked in either case, nor was it useful or pertinent to illustrate the objection the justice was considering. The court says:
“The jury were instructed as to this purpose, and were informed that it was not offered and could not be used for the purpose of convicting defendants of offenses for which they were not on trial. The fact that this evidence tended to prove another crime does not, as we have seen, exclude it. The fact that the prosecution relied upon facts offered in evidence that would have been barred by the statute of limitations is immaterial. If the evidence was relevant, it was not affected by the lapse of three years from the occurrence.”
The court had in mind only the objection as to the effect of the statute of limitations. It will be seen in the opinion that no consideration was given to the rule or to the exceptions to the rule which I have cited. This rule itself, and its effect, may have been in the mind of the court in a general way, as it seems to have been in the mind of the trial judge, but in the court’s opinion there is no consideration given to the effect of the exceptions which are as well established as the rule itself. Under such exceptions it follows that the testimony of Moxey was prematurely offered, and should have been rejected, because at the time it was offered the ground was not first laid implicating the defendant in the case on trial. The fact that the evidence of Moxey, in the opinion of the court, was in itself relevant, seems to have been sufficient cause for allowing Moxey’s evidence to be heard against Wolfson, notwithstanding the statute of limitation, and the force of the rule, with the exceptions thereto, relied upon by Wolf-son’s counsel. The bank books show that Wolfson was a creditor— had funds in the bank — on the 21st day of April, 1894. The government itself offered the books, but contended they were false as to Wolfson’s account, and proposed to show this by Moxey’s evidence. The objection, in my view, was not to allowing the government, at the proper time and by competent evidence, to show that the books had been falsely kept by Leefe. (this was shown later on by Leefe’s evidence), and that Wolfson knew he had in fact no funds to his credit, and could not lawfully draw on the bank. The government might
Before discussing the error assigned as to the admitting the testimony of Leefe, I quote from the record, to show the attitude of the. case when he was admitted to be sworn: Counsel, after urging his objection, said:
“I ask tlie court to rule now, unless ne [Leefe] Is called as a witness on the part of the government, that the testimony be deferred until the defense is called upon to put its testimony in before the jury. By the Court: Has the government closed? By Mr. Thoard [counsel for Leefe]: I have offered him freely, to be used by the government if the government sees fit. By Mr. House [counsel for Wolfson]: Does the government call him? By Mr. Gur-ley [United States attorney]: The government accepts the request, and will examine him as a witness of the government at this time. By the Court: Swear the witness, Mr. Clerk.”
jSTothing occurred in the further colloquy between the court and counsel to change substantially the matter disclosed in the questions and answers cited from the record. It is clear from this colloquy that the government, at the time Leefe was sworn, had not closed its case. The trial judge asked, “Has the government closed?” Ho response was made to this inquiry. Leefe’s offering himself as a witness for the government if it saw fit to use him was made while the government’s case was being heard. The court seems to be of the opinion that the colloquy shows only an irregularity; that it was, as a matter of fact, of no material importance whether Leefe was permitted to give his evidence then, before the government evidence was closed, or later on, after defendant’s side was taken up. In view of the evidence he gave, it was not material to him, because he could as well then as later on be heard to make a confession as to his own guilt; but the irregularity was fatally damaging to Wolfson, because
“The common-law rule of evidence Is that, when two persons are jointly indicted and put upon trial before the same jury, neither can be a witness for or against the other unless the interest of the one so called has been terminated by an acquittal, conviction, or nolle prosequi.”
The authorities, without exception, sustain this view; but the court says the rule just mentioned is abrogated, and in this court it is not to be considered, because the matter in contention is one of statutory construction, and quotes the United States statute of 1878. The court says this statute makes Leefe a competent witness at his own request; that, notwithstanding the common-law rule cited by the court, he should be heard to give testimony against the accessary, Wolfson, though both were on trial under the same indictment before the. same jury. The court suggests that:
“This statute, in terms, makes the defendant a competent witness. The ' statute does not sny ‘a competent witness for himself.’ It does not say ‘a competent witness, for the government.’ He is simply made, at his own request, but not otherwise, a competent witness.”
Certainly there was no power, even though he was a competent witness, in the statute authorizing the government’s counsel at any time during the progress of the trial to call and appropriate Leefe as a witness for the government against Wolfson. A competent witness is a person allowed to be sworn in a pending case, — to give legal testimony therein under the rules of evidence. All that can be claimed for the statute is that Leefe, if permitted at all, under the rules of evidence, to be sworn, was made, by its terms a competent witness. However competent the statute might have made him, Wolfson, the accomplice, could not have called him as a witness; nor could he on his own motion, or at the instance of the government, become a witness against Wolfson. The history of the case shows that no conviction could have been had against Wolfson at all, but for the testimony of Leefe, because, up to the time he was offered, no incriminating facts had been stated by any witness against Wolfson. Leefe never requested to become “a witness in his own behalf.” It seems to hhve been the purpose of congress to allow a defendant to become a witness “in his own behalf upon his request.” “In mercy to him, he is, by the act in question, permitted, upon his request, to testify in his own behalf in the case.” Wilson v. U. S., 149 U. S. 66, 13 Sup. Ct. 765, 37 L. Ed. 650. The statute says a defendant may be a competent witness at his own request. The United States courts, in considering the words “at his own request,” have treated them as
■‘The act of the 16th of March. 1878, provides that a defendant charged with crime shall at his own request, but not otherwise, be a competent witness; that is. he shall not labor under disabilities because he is a party in interest, and notwithstanding this may testify. But, when a party offers himself as a witness in his own behalf, he must be treated as any other witness, and subject to any exceptions that would apply to any other witness. In other words, the act frees him from such disability.”
In the state decisions, it may he said, a more liberal view has been announced. Under such decisions the views of the court might he established. The effect of the United States statute is limited to making the defendant a competent witness to testify in his own behalf. It does not abrogate as to him all the rules which at common law qualify and limit the testimony of other competent witnesses. Wolf son is charged with a. crime against the United States. He is entitled to a trial under the common-law rule, which forbids the testimony of a principal to be appropriated by the government against his accessary when both parties are on trial at the same time under the same indictment. The court says:
“We think the statute made Leefe a competent witness at bis own request. To construe it otherwise would do violence to its plain words, and would defeat the legislative intent,.”
In support of this suggestion the court cites no United Slates authorities in which the effect of the common-law rule, taken together with the act of 1878, is considered, but relies upon a liberal quotation from state authorities. The state authorities are at variance on the subject, and are not in line with the rule so far as it has been laid down in the federal courts in any case where the matter at issue
*147 “You may now give your testimony under the act of 1878 if you choose to do so; hut, under the rules of evidence, to the benefit of which Wolfson. is entitled, your evidence will be limited to a denial or admission of your guilt. You cannot give any testimony against Wolfson. If you choose, you can give testimony for yourself or against yourself, or you can now make a confession of your own guilt in the presence of the court, just as you could have made it elsewhere; but nothing you can say will be taken against Wolfson.”
I think, to allow any other view to obtain, under, the conditions of the case, would, in effect, be to refine away Wolfson’s right to a fair trial under the common law as it existed when the judiciary act of 1789 was passed.
“The reason for the exclusion of husband and wife when called for or against the other being social policy, and not interest,, statutes abolishing incompetency resting on interest do not remove the common'law of incompetency of husband and wife for or against the other.” Whart. Ev. par. 431, and numerous cases cited "thereunder.
In Lucas v. Brooks, 18 Wall. 436, 21 L. Ed. 779, the court says, in discussing the admissibility of a wife’s evidence in a case where the husband is the party in interest:
“But, it is argued, because congress has enacted ibat in civil actions in the courts of the United States there shall be no exclusion of any witness because he is a party to or interested in the issue tried, the wife is competent to testify for her husband. Undoubtedly the act of congress has cut up by the roots all objections to the competency of a witness on account of interest. But the objection to a wife's testifying on behalf of her husband is no-t, and never has been, that she has any interest in the issue to which he is a party. It rests solely upon public policy. To that the statute has no application. Accordingly, though statutes similar to the act of congress exist in many of the stales, they have not been held to remove the objection tO' a wife’s competency to testify for or against her husband.”
By analogy, this quotation sustains the contention that the legal effect of the act of 1878 is to relieve a defendant of disability on the ground of interest, but that the common-law rule of evidence as to inadmissibility of a principal’s evidence, quoted and sanctioned by the court in this case, is founded on public policy, and is not abrogated by the legal effect of the act of 1878. That statute removes the disqualification of a witness by reason of interest, but does not remove such disqualification as is shown in the authorities to rest “solely on public policy.” Mitchinson v. Cross, 58 Ill. 367, and American and English cases cited thereunder; Ney v. Swinney, 36 Ind. 455, citing numerous cases.