Tuckerman v. United States

• Decision Date: 29 June 1923
• Docket Number: 3810,,3791,3826.
• Parties: TUCKERMAN v. UNITED STATES. WILKES v. SAME. BERRYMAN v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

291 F. 958

TUCKERMAN v. UNITED STATES. WILKES v. SAME. BERRYMAN v. SAME.

Nos. 3791, 3810,, 3826.

United States Court of Appeals, Sixth Circuit.

June 29, 1923

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Charles M. Bryan, of Memphis, Tenn. (A. G. Brode and Prewitt Semmes both of Memphis, Tenn., on the brief), for plaintiffs in error Tuckerman and Berryman.

Scott P. Fitzhugh, of Memphis, Tenn. (Stickley & Fitzhugh, of Memphis, Tenn., on the brief), for plaintiff in error Wilkes.

W. H. Fisher, Asst. U.S. Atty., of Memphis, Tenn. (S. E. Murray and A. A. Hornsby, both of Memphis, Tenn., on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

These writs are brought to review judgments upon convictions of the several plaintiffs in error upon indictments under section 39 of the Penal Code (Comp. St. Sec. 10203), for giving a bribe or bribes to one Tyree Taylor, then a deputy United States marshal for the Western district of Tennessee, to insure immunity to plaintiffs in error respectively from prosecution or molestation by the government's officers on account of the violation of the Reed Amendment (Act March 3, 1917, c. 162, 39 Stat. 1058, 1069; Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 8739a). Before the finding of the indictments in question, Taylor had been convicted in another prosecution, upon his plea of guilty, of accepting bribes as such deputy United States marshal, and had been sentenced to imprisonment in the federal penitentiary at Atlanta, Ga. While so imprisoned, he turned state's evidence, and testified for the government on the trial of the cases we are now reviewing, as did also his wife, who had participated with him in the alleged receiving of the bribes in question. The cases reviewed by this opinion, together with others, were tried more or less consecutively in the court below. Several of the important questions here discussed are involved in two or more of the cases before us.

In case No. 3791 (Tuckerman) the charge is bribery in April, 1919. There was conviction as to one of the acts charged. The sufficiency of the indictment is not questioned. The criticisms argued are addressed to the admission and exclusion of testimony, the overruling of motion for new trial for alleged lack of evidence to support the verdict, and the giving and refusal of instructions to the jury.

We think no error was committed in the admission or rejection of testimony. Taylor, testifying for the government, said that he knew defendant as far back as 1917, and in answer to the question, 'What business was he engaged in at the time you became acquainted with him?' said, 'Well, I never knew Mr. Tuckerman to be engaged in anything else other than handling whisky in some way. ' This is characterized as an assault upon the reputation and character of defendant before it was put in issue, and as tending to show that he was guilty of another crime than that here charged. We think neither of these objections good. The testimony was naturally preliminary to the detailing of the alleged first interview between defendant and the witness regarding the proposed protection. The fact that defendant had always been in the liquor business was competent and relevant to the subject-matter generally. Grayson v. United States (C.C.A. 6) 272 F. 553, 558. It was not made inadmissible merely because of a tendency to show defendant guilty of another offense. Tucker v. United States (C.C.A. 6) 224 F. 833, 840, 140 C.C.A. 279, cf. Thaler v. United States (C.C.A. 6) 261 F. 746, 750. However, the criticized statement had no necessary tendency to show an unlawful dealing in liquor except as involved in the alleged bootlegging operations in question. The National Prohibition Act (41 Stat. 305) did not take effect until January 16, 1920 (Dillon v. Gloss, 256 U.S. 368, 41 Sup.Ct. 510, 65 L.Ed. 994), and there is nothing to indicate that dealing in liquor was necessarily illegal, either in New Orleans, where defendant seems to have resided before coming to Memphis and when Taylor first knew him, or in Caruthersville, Mo., from which place, according to the charge, the liquor was to be transported.

Complaint is also made that Taylor was permitted to say that he thought his connection with defendant 'really began in the fall of 1918, ' notwithstanding the indictment stated the offense, under a videlicet, as occurring in April, 1919. The date earlier stated was not too remote. A little later the date of the first conversation was given as 'somewhere in the early spring of 1919, say in January. ' The date so given was apparently preliminary to the statement that somewhere about the middle of April a specific proposition of payment for protection was made.

Taylor was asked, on cross-examination, if after his arrest he was handed a list of certain people and had not 'said something about practically every man on the list. ' He answered, 'Sure, I know plenty of fellows that I never said anything about. ' The witness was then asked whether 'you mean to say that you indicted every man in the year 1919 before the statute of limitations ran out * * * that you had any transactions with. ' This was properly excluded as incompetent. Manifestly the witness had no authority to indict any one. Moreover, defendant was permitted, without objection, to ask whether a named government officer had not read off to the witness a list of people, including defendant, and merely asked 'about this one and that one and the other one,' and whether the witness did not check off from that list the people that he made 'these statements about.' The question was answered in the negative.

Upon cross-examination defendant was asked whether he had not been arrested several times on different charges, to which he replied that he had never been convicted of anything, admitting, however, that he had been arrested during the preceding two years for vagrancy. Without deciding whether or not this evidence should have been received against due objection, we think defendant not in position to complain of it. No ground of objection was stated, and in the absence of such statement defendant is not entitled of right to complain. Robinson v. Van Hooser (C.C.A. 6) 196 F. 620, 624, 116 C.C.A. 294. The testimony is not so clearly improper or prejudicial as to justify waiving the rule.

Following the charge of the court defendant's counsel asked an instruction that--

'The jury should scrutinize the testimony of accomplices carefully, and they should not believe the testimony of accomplices, and should not convict on the testimony of accomplices, unless it is supported by independent proof.'

There was no error in refusing to so instruct. The rule is well settled that while it is the better practice in penal cases for courts to caution jurors against too much reliance upon the testimony of accomplices, and against believing such testimony without corroboration, mere failure to give such instruction is not reversible error. Caminetti v. United States, 242 U.S. at page 495, 37 Sup.Ct. 192, 61 L.Ed. 442, L.R.A. 1917E, 502, Ann. Cas. 1917B, 1168; Ray v. United States (C.C.A. 6) 265 F. 257; Rudner v. United States (C.C.A. 6) 281 F. 516, 521. Reference to the instruction actually given the jury, as quoted in the margin hereof, ^[1]shows that the court did not fail in its duty in the respect stated.

Complaint is also made of a refusal of another instruction requested at the close of the charge actually given, viz. that--

'The evidence of the defendant also shows that the prosecuting witness at one time was jealous of the defendant, and sought his life, and the jury should consider that evidence as to whether or not it was a motive actuating the testimony of Mr. and Mrs. Tyree Taylor.'

The court had already instructed the jury that--

'In weighing the testimony of the witnesses, you will look further to see what motive, if any, actuated the witness in testifying as he did; if you find that the witness has a motive for testifying against a party, then, as a matter of course, you would take that into consideration in weighing the testimony of such witness, if you find that any motive existed for so testifying; that is, any ulterior motive for so testifying against the party. * * * '

Having given this general instruction, it was not reversible error to decline to call the jury's attention specifically to a given item of testimony whose tendency was claimed to show motive.

In the charge the judge, after stating that the jurors were not to be influenced by anything that he might say to them in recounting the testimony, or by any opinion which they think he might have or which he might express about the case, because these matters must be determined by the jurors, uninfluenced by anything that they might believe the judge thought or which he might express about the case, added:

'But I say to you frankly, gentlemen, that I have examined the testimony closely; that I was unable to find any motive on the part of the government witnesses Tyree Taylor and his wife to prompt them to testify as they did, if they were not testifying to the truth; but that is simply my opinion about it, and you are not to be influenced by it in one way or the other or be governed by it in making up your verdict, but you are to determine the case according to your own recollection of the testimony and the weight you think should be given to it.'

After the jury had retired to consider its verdict, it returned into court and reported that it could not agree, whereupon it was sent back for further consideration. After deliberating several hours more, the jurors again returned, with the statement that they had not agreed. After giving certain...