Young v. United States
97 F.2d 200
5th Cir.
1938
Check Treatment

*1 UNITED STATES.* YOUNG v.

No. 8532. Appeals, Fifth Circuit.

Circuit Court 7, 1938. June

*Rehearing denied F.2d

2'0i pellant pistol with Martinez .the killed, instructing which Thomason was lookout, keep him generally to to avoid possible, if notice and detection if covered, dis- to shoot it with officers out arrest, still; attempting their take that at some killing time before the Mar- appellant good tinez had told that he was a shot, cap- and that the officers tried to ture the them, still shoot it win; and the best man would Young prove hoped had told him he that he would word; a man of his that on the night of February Thomason captured Young other officers Hamilton, actually Hazel operating while HOLMES, Judge, dissenting. Circuit still, and, one of the holding officers prisoners, those two Thomason left search; site to make a suddenly upon came Pete Martinez and a year boy, fifteen old Hucel upon command, up” “stick Mar- acting tinez from instructions promises appellant, fir- commenced ing; pistol ensued, that a battle then which both Martinez and Thomason were against killed. There was verdict Young Ayres Ross, Austin, Tex., for ap- K. degree charged, murder in first as pellant. capital punishment, without and a sentence Smith, Jr., Atty., judgment imprisonment R.W. U. H. S. and W. in the Moursund, Atty., penitentiary Asst. S. United States U. both San for the remain- Antonio, Tex. der of his natural life. FOSTER, HUTCHESON, By appeal great- Before maintains that HOLMES, ly prejudicial Judges. Circuit error was committed on the case, respect of, trial the admis- HUTCHESON, against sion evidence as Judge. of matters Circuit such, of, not receivable as the denial Brought under Secs. 253 Title of his motion for a directed verdict. 18, U.S.C.A., charge of the indictment point made on denial the motion to appellant willfully was that did and volun- undisputed direct is that tarily, and with malice ‘aforethought kill Young showed that was at the still un- by shooting gun investigator with a an armed, custody and in the of the officers Revenue, service of the Internal gun battle which cost Thomason engaged performance of his official occurred, his life and there was no evi- duties. any time, by dence that he at sign, word or appellant Conceding that did not ac advised, counseled, aided, (cid:127)ever induced or tually fire Thomason, which killed procured the shooting of Thomason; investigator, general theory of the occurred as result of unexpected prosecution appellant prin was that was a affray meeting between Thomason and cipal, under the Federal statute of Prin Martinez, verdict, and that the therefore, cipals, Sec. Title U.S.C.A. one who appellant killed Thomason with malice “aids, abets, counsels, commands, induces, aforethought, wholly is without evidence to procures commission” of an of [the] support it. - particularly applied, fense. As theory prosecution of the was that There assignments several as to operator still; the owner and of an illicit erroneous admissions into Ap- evidence. assisting pellant’s reliance, him as lookout man however, main Martinez; guard was one Pete proposition that the Government was prior killing, time permitted, connection having been surprised as guard his duties lookout and ap- by witness, hostile defendant, impeaching fatally damaging as and if their form erroneous, independent evi- admission as reversal re- but in fact quired. summary dence, A brief of the evidence mass of matter admissible *3 record, point, arrange- on evidence, the the crucial claimed and in state of the the ment between Martinez the defendant fatally damaging to him. still, guarding shooting for the said think little need be We show, inescapably, with officers will we the for point, motion the denial the first damaging think once the character and at verdict, of evi the want instructed dence to complete inadmissibility proof. this did support it. The Government aside, Hamilton’s statements there is no completely excul indeed, by introducing a proof directly in the in or record circumstan- defendant, he in which statement patory tially any way support tending to gun, Martinez either a having given denied claim, except Government’s guard whatever as any instructions or persons, jail three in which who were inmates of the officers, shooting it with still or ing the confined, who tes- was defendant favor presumption in his thereby raise a having tified to had or heard conversations true, were exculpatory statements he made to his in which admissions as con- falsity to be shown their required which beyond arrangements Martinez. nection and with doubt. reasonable a Tex.Jur. 256, State, Cokeley Tex.Cr.R. Cf. v. State, 194; Spicer 113 Tex. 106, v. p. Sec. persons of these S.W. One was 1099. 737; v. 616, 21 Villareal S.W.2d Cr.R. offender, Palmer, then Richard an habitual 835; 251, 275 S.W. Tex.Cr.R. State, 101 murder, a who serving, life sentence for State, S.W. 87 Tex.Cr.R. Cokeleyv. in that in one conver- testified substance State, 110 Tex.Cr.R. 1099; v. Nichols him; had told that sation defendant State, 109; Tex. Cook S.W.2d Martinez named Pete he had. a fellow ’However, the 160 S.W. Cr.R. him; that the officers working for evidence, belieyed, if admissible other him, stayed one and arrested came finding Young armed that a warranted off, him, he other knew with and the went post, in put him on with' Martinez and his life was the time the officer left that any kill officer who should structions direction; he in that that danger if went in- the Mexican was still or those seize the arrest attempt to waiting with down there it, purpose with and with connected him, or gun he had furnished knew a something If he would do so. this that and belief about, Mexican and that the was shot fired the so, in law was his hand shot; distinguish he could good he said officer, guilty and he is as which killed shots, gun, his one of them was as if had been killing he of his willful shooting time the he at the said he going shooting was standing by while the danger, in life that the man’-s was occurred it, on, directing or himself had urging and He shot Mexican first. because Federal statutes he gun. Under held the subsequent conversation in a that testified who, illegal of an act the commission him the Mexican was defendant told the' others, maintaining as an illicit such with still, sup- him at the and was working for burglary holdup, arms still, conducting a carry and watch the trail water posed to kill if confederates and instructs me still. “He told led attempt, purpose with the obstructed supposed was the Mexican purpose so, they do is in law a and intent that anybody up if came it. He said (cid:127) watch which re killing willful principal sults from the Mexican who or near was the still carrying out' those instructions. lookout, supposed to watching, he was questions assign- Upon the' the other necessarily mean of- anybody, did not if admission into evidence of raise the ments supposed ficers, trail he was came onto his letters written statements qnce, shot, warning give shoot as impeach- the witness and to ment of away, opportunity and then go stands, matter leave, shoot, party did not if think, differently. quite Without these another time defend- At shoot to.kill.” admissions, the Government’s case was al- some, him it had been other told ant quite, fatally lacking in most, if was, officer, except he would proof convincing high of that clear warning, credibility and told him not which the nature of order was. “He state of there where Mexican charge and the defendant’s to mind-seeing particular into did not proof,’demanded. The admission evi- said way walking that into death trap.” statements and letters officer dence of these Kohutek, often, confined and drank some whiskey, Another one and had testified He jail thirty been there about for misdemeanor. minutes before the going trusty privilege up; officers came though that all around the acquainted jail, got and he Martinez shot with had been defendant’s jail; he had Palmer while some time Richard traded Martinez; the cells while in runaround outside and that Martinez was not de- him, working between the he heard conversations and that he had never Palmer, regard given any fendant and instructions to Martinez as to opera- killing guarding shooting of a Federal Officer the still out with still; the defendant stated tion officers. *4 rapid shooting the that he heard the thus, The standing case Government’s have firing, he must and he said highly important get it was to to before shooting because he the Mexican juiy, way, in some the favorable state- miss; that gun knew that would never ments it had secured from Hucel Hamilton gun said he knew heard first. “He he that jail charges growing while he inwas put gun and that he that would never miss of shooting. the still and It there- guard, for down there for a Mexican fore, though it knew from letters its put when man. said that he a lookout He possession repudiate that Hamilton would safe, that the Mexican down there he was when the Judge, those statements still”; up to nobody get would ever intention, put him on stand with the killing he about that heard conversation apparently, his getting of statements into appellant that made Federal officer and by impeaching him. Placed of remark “the son a bitch Goddamn stand, that the years he testified he was sixteen dead, nobody never bother was old; he that lived with his mother else”; expecting that he said he was also house; and- sisters in defendant’s Federal raid on still officers. On Martinez; had known Pete he that had seen con- Kohutek said the cross examination times; gone he up him several that had to Young versation Palmer and all between day shooting; still that Sues time, happened night was he that seen Martinez afternoon until standing there. spring, he saw at the about 5:30 in Vann, jail afternoon, he, Hamilton, was B. L. third came days water; for drunkenness. He testified that spring to the that a Federal jail he while in heard the defendant make up” came and said “stick officer operating another; reference statements with they started shoot at one that killing still and the a Federal nothing officer.' just said to Pete and Pete he “The said had a shooting; defendant he Mexican and went to turned around him; operat- working first; the Mexican was he could not tell which shot that aft- it; operate or ing fixing the still He shooting picked up gun he er the gun recognized heard shots and home, two gave gun ran to his sister fired; that it when it was was his he but Beulah. had sold it the Mexican and Thereupon Attorney the District asked working guard Mexican on him.” the witness: testimony of the Other Government “Now, you questioned night were indeed sufficient to connect Martinez with shooting early following after still, defendant and the and defendant in morning ? way gun had, some Martinez “A. Yes sir. this was all that did. aside from But give “Q. you And didn’t this statement nobody Hamilton testified to knowing typewriter? Holt took on which Mr. overhearing any arrangement between guarding Martinez defendant for “A. Yes sir. shooting still or it out with officers. you you “Q. ask I will this positive In lack Sunday, February addition this tes- statement—‘On support timony morning, my Government’s 8 o’clock in the sister about brother, theory guilt, Hazel, my my- and the character of the Howard and had testified to witnesses who defendant’s across the river milk went self admissions, the Government weak- and then went back to the house cows Martinez, by offering Young ened its case then Pete Ike and myself confession defendant’s, statements; back exculpatory went across the river to ” though Martinez came around still—’ the still 20á you all “Q. were During this time that stated objected you talking, did sitting around the still might have he any statement objected wearing? see this Pete was following occurred: Whereupon the made. I sir; on and Pete had it “A. Yes offer Attorney: will I District “The that could see him. my answer thing, and whole things very material are some be- “Q. you is there conversation Did hear dia- here, things boy has testified this during Young tween Ike and Pete the statement metrically different from time? to. has sworn “A. Pete he shoot Ike told could surprised you If them, “The Court: to. run if he wanted impeach you are entitled his evidence he could “Q. Ike told Pete that When the evidence. part of him on that to,.' them, if he out with wanted shoot it That what Attorney: District “The say? did Pete .what already asked do—I propose I said, well, first man “A. Pete dif- he has questions him the best up gun,' the _ comes here and draws a is contained to what ferent answers *5 win, said, hope you are man will T and Ike ” statement. your man of word.’ ' you let right, All I will “The Court: The witness was also asked whether pur- impeachment for statement offer the not testified grand jury the he had before only poses —” in his substantially what he had said to There- exception was taken. Pete, to which after, and what Ike told. statements as to questions by Attorney, District the afternoon. told Ike the still that Pete statements, got by reading and from the .over the ob- All of this was offered only jury statements before the addition, defendant, and jections while Hamilton was Young were Martinez, and Hamilton stand, on the the still, thought the and that he working at notes, one written offered two Government this, shot, which the first but fired Pete him, by by to and Hamilton’s sister defendant, if damaging to greatly they reply, were both in him in believed: they were offered were jail. When these following objected by defendant and the the house “Before we left colloquy occurred: morning and on still in the on the work the gave place, Ike shooting took day the letters in You offer these “The Court: scabbard, put Pete gun and Pete impeachment purpose the for evidence of belt on the gun the and scabbard on this witness? side, got the righthand when Attorney: Yes sir to “The District protect himself at Pete to still Ike told may they which of light as to shed what to, you shoot if have the still and Pete by wit- statements the different four he would. Pete told Ike that he said are true. ness anybody up still would not come let objection the I overrule “The Court: anybody him not after Ike told to let come impeach- will let that, up After Ike told him still. only.” ment anybody up come Pete said if there Attorney District stated Whereupon the they win, right, the best man didn’t look would these to the Court —“I state will hope you Ike said T are a man ” read, I have care- letters are hard your word.’ I came into fully gone over them before statement, this In addition to another days ago, and I several have written court offered, purporting to statement was my handwriting.” own morning made Hamilton' the next Bud: “From Beulah to shooting, in which after the witness stated— up you this don’t let “Be shure tare you noBody see read this. Listen Bud yesterday morning “There at the house your you done on know all about' what said, you Pete wear gun can Ike Well you I trip. Listen don’t do what time, gave Pete his 38 Colts: this going to tell them you I am what told “Q, you gun during Did ever see this gun you brought that across you done when day? you change don’t But if what the river. you - giving gun Ike to Pete who' said about I it on Pete wore it the “A. saw you hang him and me and day. they will Both.. rest of good you verdict, only him like that as Bud how can do but to eliminate from you to you jury’s I want any positive he has Ben. Bud minds adverse ef- you going to me do fect might rite and tell what have been created change you going I testimony surprised will no Bud ant so which has the offerer. you soon what have said and so, ordinarily Because this is it is “From Bud to Beulah: practice, done, effectively best if it can be lyed judge tell the I going “I am party when a prised by shows he has been sur Ike I told them about testimony of wit adverse they shooting told Pete know how But offered, permit ness he has to with happened there was another law becattse draw the witness and his from up saw spring on from the the hill jury by having the whole evidence trying to tell they no use on it and them Pete aint record, stricken from the as was done in they even found where run first S., By Kuhn v. U. 24 F.2d 910. grass am Bullets laws cut course, surprise made, if the claim of lyed telling Pete going to tell I about Ike be, only legiti as indeed it for the should anybody up I am kill that come there. purpose prejudice removing mate of. judge The end going to tell that to the surprising and not for from Bud.” purpose of getting contradictory tes- the witness On cross examination statements for their effect not read the statements tified that he did it, purpose protecting party, them; jail signed he was him, injury offered who from at the hands he made them and made them be- accomplished of the witness is out; thought cause he complicating the or confusing issues *6 parts of the statement were true and jury. lie, some was a and what he had testified only this is But not the course which truth; day was the did not Pete may pursued. showing be “On a anything have to do with the still and that ought court it by not be bound he never knew him to be so connected. witnesses it [the offered] testi original The rule in its and strict fied, entrapped by because it had been against form impeaching one’s own witness them,” Bacalis, New York Life Ins. Co. v. everywhere, is discredited general and it is 5 94 F.2d may, court in ly recognized impeachment may be discretion, limiting exercise its surprised resorted to where a witness has impeaching point matter to the of the party him, offering by testimony. surprise, permit the evidence to remain in overwhelming weight authority The weight may record for as such it have however, supports the though rule that light impeachment, of its and of a should, in trial courts the exercise of a by court, careful instruction that the prevent sound discretion to injury from impeaching evidence is not all at admitted surprise testimony of a hostile or cor favor, evidence in the offerer’s as but for rupt witness, permit cross examination and may overcoming what effect it testimony have in impeachment by contradictory statements, surprised which has the offerer. permitted it is never to make of the rule short, impeaching and contradictory In by an artifice which inadmissible matter only destroy statements are “admitted may gotten be to a through the device witnesses, the credit of the to annul and witness, offering testimony whose is not testimony.” to substitute their Id. adverse, known to order, be in under the is, opinion, It in our never impeachment, name of jury admissible get any interpretation rule, sound of the weighing, its parte favorable ex certainly Texas, not in nor in the statements Fifth the witness has made. To the Circuit, to offer testimony a witness whose relaxation against of the rule impeaching the offerer in knows advance will one’s own be ad- witness introducing his ex verse, parte in order to jury, in statement contradiction of his impeachment, the form of fundamental, contradictory is it think, statements of his which party offering useful to witness be really surprised testimony. Royal Further, prosecutor. Insurance Co. v. Eas- equally

it is 385, 388; fundamental impeach tham, 71 F.2d Cir. Odneal v. ing testimony be State, 412, 1020; not pur admitted for the 117 Tex.Cr.R. 36 S.W.2d pose of supplying State, what the 233, v. witness was Barham Tex.Cr.R. to, expected not, 741; but did say, Blochowitz, as a basis c/f Blochowitz v. S.W.2d 955; parte ex v. 586, Royal statements in. Ins. Co. 82 A.L.R. 122 Neb. 240 N.W. Eastham, supra. S., supra. Kuhn v. U. from A recent and well considered case Neither, there is real even where Circuit, the Second is States v. United permit impeach surprise, proper is it Block, only Federal case 88 F.2d 618. The only pur beyond testimony ing attention, in has called which to our been admissible, the re pose for is which it surprise held not a which has been factor, , surprise damage the has moval of the case, & Ac a civil London Guarantee may the fact that a no caused. In event Woelfie, Cir., 83 F.2d cident Co. v. contradictory statements made witness has Being case, may 335. a civil court have here, as a basis be as effect was used so, say following a though did not discarding completely the rules of evi prevailing state rule.2 hearsay parte state against ex dence ments, and, may, Be that this decision as opening impeachment, as prevailing generally with the accord prejudicial damaging gates of flood will view, reference to text book States, hearsay. Dewey v. United Ward certainly not It is in accord with show. Cir., 96 F.2d Texas, and in this prevailing in the rule beginning the courts of From Texas Circuit. State, v. 10 Tex. so held. White charge on which State, supra; 381; Gulf, App. Odneal v. one, degree first tried was an unusual Harrell, Tex.Civ.App., R. Co. v. C. & S. F. procured murder, by killing induced and 187; Morgan Stringer, 120 v. 270 S.W. Legal by general instructions in advance. 468; Latham v. Tex. S.W.2d Jor is, kind ly though it it is sufficient 805; dan, Tex.Com.App., Bar 17 S.W.2d ought to be clear substantiated State, has supra. This been the ham v. high order of convincing proof of a Fifth Circuit. Sneed rule uniform woefully proof was lack credibility. Such 911; States, Georgia 298 F. v. United three ing in this case. Waldman, 24; 53 F.2d Casualty v. Co. persons, mur convicted convicted Eastham, supra; Royal Co. New Ins. by appellant derer, to admissions Bacalis, supra; Ins. Co. v. Life York jail, with them and with confined *7 S., supra. Most Dewey v. United Ward U. warning form and written which out the Appeals, of most Circuit Courts States re Procedure Code of Criminal the Texas courts, agreement. in A are note state evidence the Govern quires, was all the 905, concluding interesting an dis to Sec. until, by case, put to its had sustain ment ting cussion, inch, 2, 896-905 Vol. 2nd Sec. on, opened the Hamilton Hucel Evidence, Wigmore on and a note Edition damaging and of inadmissible gates sluice section, Supplement in same the 1934 to the of admissions Hamil hearsay, to let in the with, edition, it seems to second sets prisoner in from him while a ton obtained writer, a bias in favor little of the jail, greatest and com while under rule, of the general condemnation author’s exculpate'himself by pulsion inculpating to pretty fairly the state of authorities. edefendant, theory support in th of the Evidence,1 While Texas Law pitched had which the Government 1, in Texas Law Review No. note pp. strictly apply XV Having offered Hamilton its case. that Texas show the rule courts knowledge, from the notes ex the full prevent being its sister, him changed between and his which getting device for favorable used ex Attorney pos had in the District session for had his parte jury. statements before days, Judge that before the he statements, repudiate surprise these All of these clear cases make course, contradictions, not But on was of claimed. to admit such there must impeach right had surprise, damage, theory that he him only be not and the prior contradictory damage had made claimed must not have been self because statements, put Attorney put in the District into by continuing to damaging inflicted prior testimony hostility the two statements he witness’s the evidence after the made, testimony his change front has had been discovered in jury, offers and instructions' open gate grand .to his order to let favorable rulemaking power Ray. 1 28, in of the which McCormick 2 question Supreme discussed, Note, is discussion of that in Court See p. Review, Royal Eastham, supra, 265. Ins. Co. Texas Law v. XV 1, pp. Review, XIII 19- Texas Law Vol. 910, jury was certain F.2d so worded as that the certiorari denied 278 U.S. 605, 11, tes- of Hamilton’s S.Ct. believe that whole L.Ed. 533. was timony, statements he including the The court counsel below ruled that was about, before them interrogated was surprised, and no to the contention con- all, from them determine trary suggested even by was on the trial statements was true. appellant’s attorneys. Hamilton was an notes, not all. The two But this is witness, unwilling and the United States by and Hucel Hamilton Beulah written Attorney right had the to cross-examine admitted, also respectively were him and ask him leading questions. Government, what “to of the shed words trial respect court has a discretion with light they may of the state- on which four scope of the examination wit- true”, ments, by witness are nesses, which, abuse, the absence an they were of- the court stated appellate court should not undertake to only, all this was impeachment fered for Levy S., Cir., 483, control. U. F.2d said, jury was was allowed citing Hickory S., 303, v. U. 151 U.S. explanation take whole matter 334, S.Ct. 38 L.Ed. and St. Clair v. by meant instructions as to S., U. 154 U.S. 14 S.Ct. 38 L.Ed. impeachment purposes only.” Particu- “for they uninformed larly were left indisputably It by established the ver- only any admitted remove evidence was dict of the that an officer of Al- testimony might have prejudice Hamilton’s by cohol Tax Unit was murdered Pete State, not order that caused Martinez, employee distillery at an illicit statements, parte his ex they believed operated by appellant. owned and them as they might receive pistol fatal bullet came from a which had place the favorable supply put been Pete’s hands if he had testified he would purpose of enabling effectively purport. tenor and accordance their guard against the still gov- interference S., supra. Kuhn v. U. Moreover, ernmental officers. this employ- be the case must reversed While gave employee specific er instructions errors, likely any is not these and it to “shoot ap- with them.” The rulings on evidence of the other which pellant said that he walking saw the officer complained of will occur on another are trial, trap; into death that if it say proper to do think it that we officer, might him; other have warned objections think of the put that he the Mexican down there for alone, there- taken. For the errors well man; a lookout nobody he knew fore, let- admitting the statements still; get up would ever judgment ters of heard the fire *8 reversed and cause remanded for shooting, gun, Mexican it was his knew proceedings. and not inconsistent missed; that it never glad Reversed and remanded. the Goddamned son-of-a-bitch anybody was dead and would not bother else; appellant expect- and that had been HOLMES, Judge (dissenting). Circuit ing raid on the still federal officers. hypothesis that the prosecuting at torney surprised by days trial, not Hucel After two Hamil re- by any is not ton’s warranted turned a verdict murder in the first de- record, thing presumption gree capital punishment, and the ap- spite contrary. pellant In imprisonment is to the of the letters was sentenced to passed between Hucel and Beulah life. This not verdict should be set aside probable slight inconsequential (28 should be for errors attorney presumed that 391); talked Ham U.S.C.A. but I am of. § introducing witness, opinion ilton as a erred. effort court impeach and was told that the facts set forth range— the witness took a wide ordinarily permitted statement were true and would be testified wider than should be by him prejudice on the witness stand. U.S. —but resulted 391; Haywood S., Cir., therefrom, v. U. brought C.A. it was about § attorney F. certiorari denied U.S. insistence of his whole 1172; just parts S.Ct. 65 L.Ed. St. U. statement and not of it be ad- John S., 808; S., 268 F. Kuhn 9 mitted. It was in v. U. accordance with the appellant’s coun- principle upon by insisted Attorney offered sel United States the entire documents evidence. respectfully judg-

I dissent from the

ment of reversal.

In CO. NORCOR MFG. re DE et al.

SCHMITT v. LANEY

No. Appeals, Court of Seventh Circuit.

Circuit May 25, 1938.