Brooks v. United States, 7094.

• Decision Date: 03 October 1962
• Docket Number: No. 7094.,7094.
• Parties: Edward Earl BROOKS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

309 F.2d 580 (1962)

Edward Earl BROOKS, Appellant, v. UNITED STATES of America, Appellee.

No. 7094.

United States Court of Appeals Tenth Circuit.

October 3, 1962.

Ted J. Davis, of Fuller, Smith, Mosburg & Davis, Oklahoma City, Okl., for appellant.

Robert L. Berry, Asst. U. S. Atty., Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., with him on the brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.

PICKETT, Circuit Judge.

The defendant, Brooks, was convicted on an information which charged him with knowingly persuading, seducing and enticing his wife, a girl under 17 years of age, to travel in interstate commerce with intent to induce her to engage in prostitution, debauchery, and other immoral practices, in violation of Title 18 U.S.C. § 2423. This is an appeal from a judgment and sentence entered upon the jury's verdict of guilty.

The victim, who was called as a witness for the prosecution, demonstrated a reluctance to testify. The court determined that she was a recalcitrant and hostile witness, and permitted the prosecution to question her as to prior testimony given at a preliminary hearing before the United States Commissioner. The witness admitted that there were conflicts between the testimony which she gave at the trial and that which she gave at the preliminary hearing. She undertook to explain some of the discrepancies, and said she did not remember making other inconsistent statements. At the conclusion of the witness's testimony, the court permitted the prosecution to read a transcript of her entire former testimony. No objection was made to the reading of the transcript, but the court was requested to instruct the jury that this evidence could be considered by the jury only for the purpose of impeaching the witness and was "not to be used as substantive evidence in the trial at bar." In response to the request, the court stated that "the testimony was read not for the purpose of impeachment, but for the purpose of getting before the jury the truth as best the prosecution knows how to do it." The effect of this statement was that the jury was advised that former testimony could be considered as substantive evidence of the offense charged. The principal ground for reversal here is that the court committed prejudicial error in not limiting the purpose of the witness's prior testimony to that of impeachment.

As a general proposition, the testimony of a witness, after a proper foundation has been laid, may be impeached by showing former declarations, statements, or testimony which are contradictory or inconsistent with the answers given at a trial. The purpose of the impeachment is to discredit the witness, not to establish the existence of the fact in dispute. There is little conflict in the rule that prior statements of a witness who is not a party to an action, and whose statements are not binding as admissions, are admissible only to impeach or discredit the witness, and are not competent substantive evidence of the facts to which the former statements relate. This rule applies in instances when the court, in its discretion, permits a party to impeach its own witness who is shown to be recalcitrant and hostile. In Tripp v. United States, 10 Cir., 295 F.2d 418, 424-425, in referring to the purpose of admitting prior contradictory statements of witnesses, this court said:

"* * * it is well settled that contradictory statements introduced for the purpose of impeachment are not admissible as substantive evidence. Counsel for the Government undertake to justify the admission of the statements of Lauderdale and Go-forth as substantive evidence by the application, through analogy, of the rule that when a witness called by a party becomes recalcitrant, the party may, with the consent of the trial judge, granted in the exercise of his discretion, be permitted to cross-examine the witness and inquire whether he had not at other times made statements contradictory of the evidence he had given at the trial. That rule is well established. But such contradictory statements do not become substantive evidence unless the witness recants his earlier testimony and admits or states that such statements correctly reflect the true facts. The effect of so doing is to make the statements a part of the witness\'s present testimony." (Footnotes omitted).

See also United States v. Bernard, 7 Cir., 287 F.2d 715, cert. denied 366 U.S. 961, 81...