Brink v. United States, 6106.

• Decision Date: 27 June 1932
• Docket Number: No. 6106.,6106.
• Parties: BRINK v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

60 F.2d 231 (1932)

BRINK v. UNITED STATES.

No. 6106.

Circuit Court of Appeals, Sixth Circuit.

June 27, 1932.

Allen C. Roudebush, of Cincinnati, Ohio (Harry H. Shafer, of Cincinnati, Ohio, on the brief), for appellant.

Harry A. Abrams, of Cincinnati, Ohio (Haveth E. Mau, of Cincinnati, Ohio, and William A. Rogers, of Dayton, Ohio, on the brief), for the United States.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

HICKS, Circuit Judge.

Appellant and James H. Brink, Harry Schultz, and Walter Keller, were indicted for a conspiracy to violate the National Prohibition Act under section 88, title 18, U. S. C. (18 USCA § 88). Brink alone was put upon trial. He was convicted.

There are numerous assignments of error. Many of them relate to matters unexcepted to in the court below and therefore present nothing for review.

Several assignments challenge the denial of a directed verdict. They are all overruled. We have examined the evidence and find it sufficient to submit the case to the jury.

1. Earl Marshall was the principal witness for the government. He had served a sentence in the penitentiary for a violation of the Prohibition Act. He testified in substance that his conviction grew out of his employment by appellant to transport liquor and that appellant had agreed to pay him $45 per week, or a total of $7,200, for the time he served in prison. During cross-examination Marshall was asked: "Did you get any lawyer to enforce the collection of this $7200.00?" He answered, "No sir." Thereupon counsel asked the witness: "Q. I will ask you if this question was asked you and whether you answered according to what I read?" (Reading from a transcript of witness's testimony before the United States Commissioner): "Q. Who was the man? A. Charles Dornette. Q. You went to see Charles Dornette, that was your lawyer was it not? A. I guess so." Thereupon the court stated in substance that an unwarranted inference might be drawn from the manner in which this matter was being presented and required counsel to read the entire pertinent record of Marshall's testimony before the commissioner. The record when read justified the court's comment and action. It is the duty of the court to see that testimony is not misunderstood. Kettenbach v. U. S., 202 F. 377, 385 (C. C. A. 9); Rudd v. U. S., 173 F. 912, 914 (C. C. A. 8).

2. On recross-examination Marshall was vigorously examined by counsel touching this $7,200. In the course of the examination the court said: "You are making a great deal of confusion out of something that he has testified about, that it was $45.00 a week, and began along about the time he was employed, and it ran through all that time down to and through the time he was in the penitentiary at Atlanta, and it was not paid, and amounted to $7200.00, isn't that the purport of your testimony" — to which the witness responded: "Yes." We find nothing in this remark by the court that tends to affect any substantial right of appellant. See Hargrove v. U. S., 25 F.(2d) 258, 262 (C. C. A. 8). Marshall had been questioned fully touching this matter of $7,200 upon his original cross-examination, and it was the duty of the court to keep the cross-examination within reasonable limits.

3. The question arose whether the telephone company's record of a certain long distance telephone call (Exhibit 7A) was admissible in evidence. During the examination of Miller, a supervisor of the telephone company, the court asked: "Has that got something written on it — where was that writing put on that piece of paper?" The witness answered: "Brunswick, Georgia." Thereupon the court said: "I should not have put it that way." This answer was objected to upon the ground that it was evidence of a written instrument which had not been introduced. The exception took the form of a motion to strike out all of the testimony of the witness. We think the motion was properly denied.

4. Upon cross-examination of the government's witness Speiser, counsel asked: "How about the time you killed that man?" The district attorney objected. Thereupon the following colloquy took place between the court and counsel:

"The Court: Let us find out. Were you ever convicted of killing a man?

"The witness: Never.

"The Court: Have you any evidence that he was convicted of killing a man?

"Mr. Shafer: I was just told of it over the table.

"The Court: That question put by Mr. Shafer was entirely improper. If he has any evidence of that he may put the question.

"Q. Were you ever charged with that? (Question objected to; objection overruled.) A. Yes, and dismissed in Police Court. Never bound over to the grand jury, it was in self-defense.

"The Court: You could have found that out before you asked the other question. I am going to insist in this case, as in all cases, because it is becoming too frequent in court, that you do not ask questions that you have no right to ask. It leaves an ugly impression.

"Mr. Shafer: I would like to take an exception to the remark of the Court.

"The Court: You may take an exception, and the record may show that this Court takes exception to counsel asking questions for which they have no basis, and on which they have attempted to make no investigation, for the sole purpose, as the Court thinks, and wants the record to show, as the Court does think, of leaving an ugly inference to the jury. You may take an exception to that, if you wish.

"Mr. Shafer: Note an exception. I want to say to your Honor I got in this case on short notice, and I come up here and they spring a surprise witness on me, and I have to do the best I can.

"The Court: You do not have to ask questions for which there is no basis."

These remarks of the court are complained of. We think that under the circumstances they were not improper. The tendency of this line of cross-examination was to create in the minds of the jury an unfavorable and wholly unjustified impression of the witness Speiser.

5. Upon cross-examination Speiser was asked: "You remember about all the other things in the case that you want to remember, can't you remember what you paid Brink for the whiskey?" Thereupon the court remarked: "The question is not a proper question and should not have been put by counsel in that form." This remark is assigned as error. We see nothing either erroneous or prejudicial in it.

6. During the examination of its witness White, the government introduced Exhibit 8A. This exhibit was a receipt dated August 21, 1930, to Harold (Harry) Schultz, one of the alleged conspirators, for fines and costs paid to the municipal court at Mansfield, Ohio. Fillbrandt, a government witness, had testified that on August 20, 1930, he, in company with appellant, went to Mansfield and saw a man named Schultz who had been caught there with a load of liquor and had employed an attorney for him. When Exhibit 8A was introduced, the court inquired in substance whether Schultz was the same man referred to by Fillbrandt. His exact language was: "This man Schultz is the same man?" Upon exception the court said: "The Court: I will withdraw my remarks, Gentlemen, you will not consider what the Court said, as to the man about whom the Reverend Fillbrandt testified, and the man's name Schultz; my statement that that was the man you should not consider, I should not have put it that way. I want to know whether the man they are talking about was the one named Schultz." We find nothing improper or prejudicial in this incident.

7. Upon the introduction of certain documentary exhibits taken from the room of appellant one of appellant's counsel who had come into the case after the beginning of the trial stated that he wished to have the record show that these exhibits took him by surprise. The court permitted this, but called attention to certain incidents of the trial which indicated that other counsel, three in number, could not have been surprised. There was...