Behrle v. United States

• Decision Date: 07 November 1938
• Docket Number: No. 7118.,7118.
• Citation: 69 App. DC 304,100 F.2d 714
• Parties: BEHRLE v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 304, 100 F.2d 714 (1938)

BEHRLE v. UNITED STATES.

No. 7118.

United States Court of Appeals for the District of Columbia.

Argued October 4, 1938.

Decided November 7, 1938.

John Edgar Chadwick and J. Frank O'Brien, both of Washington, D. C., for appellant.

David A. Pine, U. S. Atty., and Roger Robb and Allen J. Krouse, Asst. U. S. Attys., all of Washington, D. C.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

PER CURIAM.

This is an appeal from a judgment of conviction on an indictment for perjury. On the night of July 20, 1936, Joseph E. O'Brien was shot and seriously wounded on the streets of Washington. Appellant declared that he had witnessed the shooting, and four days later he made a written statement to the police, in which he described the event and named the persons who had participated. On November 17, 1936, he testified before the grand jury and fully substantiated all his former statements. On December 8th he was called to testify as a government witness in the criminal trial of several men who were charged with shooting O'Brien. On the stand he denied having seen anything happen; and when shown his signed statement, he admitted his signature, but said he did not know the contents; and when the statement was read to him, he said he did not remember whether any of the events described in it happened or not. On his trial for perjury he did not testify, and the grounds of error urged in his behalf on this appeal are:

1. An alleged improper statement by the district attorney in his opening address to the jury;

2. That the court erroneously admitted evidence of separate and distinct offenses;

3. That there was insufficient proof of perjury to go to the jury; and

4. That the sentence was erroneously imposed under the District of Columbia perjury statute (D.C.Code 1929, T. 6, § 131) and not under the Federal statute (Cr. Code § 125, 18 U.S.C.A. § 231).

We think none of these contentions substantial.

First. The shooting of O'Brien resulted from gang warfare between two rival groups of bootleggers. Appellant belonged to one group, and in his written statement to the police he described the events leading up to the shooting. On appellant's trial for perjury, the district attorney, in opening the case, told the jury that he would show that appellant's recantation was induced either by fear of reprisal from the other group or by some other influence brought to bear upon him between the time he made the statement and the time he took the stand in the court room. We see no objection to the words of the district attorney. The evidence which he promised to submit to the jury was necessary to show a motive for the repudiation by appellant of his former statement. In the nature of things, when the witness was examined and in answer to questions regarding matters about which he had given detailed information replied "I don't remember," it was incumbent upon the district attorney to show to the satisfaction of the jury beyond a reasonable doubt that he did remember and that in testifying to the contrary he committed perjury. Proof of motive was, therefore, relevant. In Means v. United States, 62 App.D.C. 118, 65 F.2d 206, we said that, when the tendency of testimony offered in a criminal case is to throw light upon a particular fact or to explain the conduct of a particular person in relation to the matter under investigation, there is a discretion on the part of the trial court which will not be interfered with in this court unless it manifestly appears that the testimony has no legitimate bearing upon the question at issue. We think not only that the district attorney's statement was proper but...