94 F.2d 236 (D.D.C. 1937), 6767, Forte v. United States

Docket Nº:6767.
Citation:94 F.2d 236
Party Name:FORTE v. UNITED STATES.
Case Date:April 05, 1937
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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94 F.2d 236 (D.D.C. 1937)

FORTE

v.

UNITED STATES.

No. 6767.

United States Court of Appeals, District of Columbia.

April 5, 1937

J. William Tomlinson and James A. O'Shea, both of Washington, D.C., for appellant.

Leslie C. Garnett, U.S. Atty., and Roger Robb, Asst. U.S. Atty., both of Washington, D.C.

Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from a judgment of the District Court of the United States for the District of Columbia sentencing the appellant to imprisonment in a penitentiary. The case was tried to a jury. The appellant was charged with transporting a motor vehicle in interstate commerce, from the District of Columbia to Maryland, knowing it to have been stolen. The pertinent statute is the National Motor Vehicle Theft Act, 41 Stat. 324 (18 U.S.C.A. § 408). The text thereof is set forth in the margin. 1 At the close of the case for the

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Government the appellant moved for a directed verdict in his own favor. During the argument of the motion, the United States Attorney advised the court that 'the Government did not rely on the inference of guilt from possession of stolen property for a conviction in this case. ' The trial judge overruled the motion. The appellant excepted and advised the judge that he would stand on the Government's case, and requested the judge to instruct the jury to return a verdict of not guilty. This request the judge refused, and the appellant excepted. These rulings are assigned as error. The appellant contends that there was lacking, independent of his confession, substantial proof of the corpus delicti in that there was no evidence, independent of the confession, that he knew that the car was stolen. To the contrary the Government contends, apparently, that substantial proof of the whole of the corpus delicti, independent of the confession, is not as a matter of law requisite, and in any event that the scienter is not a part of the corpus delicti

The evidence introduced for the Government was this: The car in question, a two seated Ford with District of Columbia tags, was stolen from in front of the residence of its owner in the District of Columbia on July 15, 1935. It was found by a police officer in the possession of the appellant in Baltimore on November 3, following. The appellant was driving it towards Washington; the officer apprehended him for speeding. When the car was thus discovered the rear seat and cushions had been removed, and the springs had been strengthened by adding leaves. The car smelled of alcohol. In it were gunny sacks and a robe. It bore New Jersey tags, and District of Columbia and Maryland tags were found under the front seat, but the District of Columbia tags did not belong to it; and the original District of Columbia tags were not on it. The appellant had a District of Columbia driver's permit, and a registration card issued to one Helen Kyle. The mileage of the car had increased since the date of the theft 6,500 miles. In a compartment in the back was $297 in cash. On his arrest the appellant said that this money had been given him in Washington to buy alcohol in Trenton, New Jersey, telling the arresting officer that the car and money were left at his home, which he said was in Washington, by one Monoi to make the trip. He said also on his arrest that he was coming from New Jersey. He told the arresting officer that he could have the money above mentioned if he would let him go. On the way back to Washington with another officer, the appellant admitted that he knew that the car he was using was a stolen car. To a third officer the appellant said that a man named Carroll brought the car to his house on Seventh Street in Washington and gave him money and the car to make the trip to New Jersey for alcohol. The appellant refused to tell where Carroll could be found, saying, 'Never mind, I will take the rap for the car. ' The appellant told this third officer that the cushions for the car were at his house on Seventh Street, S.W., Washington, D.C. The officer found the appellant's mother there, but not the cushions. He never saw the appellant there. The cushions were returned to the owner of the car by the appellant's attorney.

There is some division in the authorities in respect of the rule of proof in cases involving confessions. A distinguished American text writer, Mr. John H. Wigmore, is of the view that there should be no definite rule forbidding conviction of an accused in a criminal case upon his uncorroborated confession. He points out in respect of the English law:

'The proposed rule appeared in two variations; by the one, the corroborative evidence might be of any sort whatever; by the other, it must specifically relate to the 'corpus delicti', i.e., the fact of injury. The latter form tended to prevail; but in neither form did the rule obtain a general footing. So far as it can be supposed to obtain to all to-day in the English and Irish courts, it is apparently restricted to the case of homicide: . . .' (4 Wigmore, Evidence (2d Ed. 1923) 2070, p. 406)

Further expressing his point of view as to the policy of such a rule, he states:

'The policy of any rule of the sort is questionable. No one doubts that the warning which it conveys is a proper one; but it is a warning which can be given with equal efficacy by counsel or (in a jurisdiction preserving the orthodox function of judges) by the judge in his charge on the facts. Common intelligence and caution, in the jurors' minds, will sufficiently appreciate it, without a laying on of the rod in the shape of a rule of law. Moreover, the danger which it is supposed to guard against is greatly exaggerated in common thought. That danger lies wholly in a

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false confession of guilt. Such confessions, however, so far as handed down to us in the annals of our courts, have been exceedingly rare (ante, Sec. 876). Such a rule might ordinarily, if not really needed, at least be merely superfluous. But this rule, and all such rules, are to-day constantly resorted to by unscrupulous counsel as mere verbal formulas with which to entrap the trial judge into an error of words in his charge to the jury. These capabilities of abuse make it a positive obstruction to the course of justice.' (4 Wigmore, Evidence (2d Ed. 1923) § 2070, p. 406)

Mr. Wigmore concedes, however, that except in a few jurisdictions, 2 the courts in the United States have adopted a fixed rule that corroboration of a confession is necessary. 3 He believes them to have been 'chiefly moved, in all probability, by Professor Greenleaf's suggestion that 'this opinion certainly best accords with the humanity of the criminal code and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases.'' 4 Wigmore, Evidence (2d Ed. 1923) § 2071, p. 407. 4 In respect of variations of the rule in the United States, Mr. Wigmore states that 'in most jurisdictions the stricter form of rule is taken, and the evidence must concern the 'corpus delicti': . . .' 4 Wigmore, Evidence (2d Ed. 1923) § 2071, p. 408

The conclusions reached by Mr. Wigmore on the one hand, and by Mr. Greenleaf and the greater number of the courts in the United States on the other, differ because they proceed from contrary premises. Mr. Wigmore's premise is that there is little danger of false confessions of guilt. He predicates this upon the proposition above quoted that 'so far as handed down to us in the annals of our courts, (false confessions) have been exceedingly rare. ' To support this statement he comments that 'No trustworthy figures of authenticated instances (of false confessions) exist; but they are concededly few.' 2 Wigmore, Evidence (2d Ed. 1923) § 867, pp. 227-228 . He then reviews in footnote a number of 'the most notable in English and American annals' including Perry's Case, 14 How.St.Tr. 1312, 1660-- where one of two brothers confessed that he, his brother and his mother had murdered his master, and they were executed, and two years later the master returned home explaining that he had been kidnapped and sold to the Turks. The premise of the reasoning of Mr. Greenleaf and the great majority of the courts in the United States is that there is real danger of false confessions, coerced or psychopathic. For this premise there seems now, whatever may have been the state of the data in 1923, the date of Mr. Wigmore's work, substantial foundation, not only in the annals of the courts in the sense of the reported decisions thereof, but also in dependable reports of criminological investigations. The comprehensive and detailed Report on Lawlessness in Law Enforcement of the National Commission on Law Observance and Enforcement (No. 11, June 25, 1931) concludes that the practice of forcing confessions is widespread throughout the country. 5See also on this

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subject Leon R. Yankwich, 'The Lawless Enforcement of the Law, ' (1935) 9 So.Calif.L.Rev. 14, and see Note (1930) 43 Harv. L. Rev

We do not assume to say that third degree methods are practiced in this jurisdiction. Happily no such practice has reached the attention of this court since

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Ziang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131 (reversing Ziang Sung Wan v. United States, 53 App.D.C. 250, 289 F. 908), and Perrygo v. United States, 55 App.D.C. 80, 2 F.2d 181. Happily also, according to the Report of the National Commission referred to, there is little evidence of the use of third degree...

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