Brown v. United States

• Decision Date: 14 March 1932
• Docket Number: No. 6542.,6542.
• Citation: 56 F.2d 997
• Parties: BROWN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

56 F.2d 997 (1932)

BROWN et al. v. UNITED STATES.

No. 6542.

Circuit Court of Appeals, Ninth Circuit.

March 14, 1932.

Barnett H. Goldstein, of Portland, Or., for appellants.

George Neuner, U. S. Atty., and Chas. W. Erskine, Asst. U. S. Atty., both of Portland, Or.

Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.

SAWTELLE, Circuit Judge.

This is an appeal from a judgment of conviction as to two of the appellants, of conspiracy to violate the National Prohibition Act (27 USCA), and, also as to two of the appellants, of manufacturing intoxicating liquor.

Appellant Joseph Brown was found guilty on count 1 of the indictment charging conspiracy; appellant Rudolph Bouthellier was found guilty on count 1 and count 3, the latter charging manufacture of liquor; and appellant Francis or Frank Bouthellier was found not guilty on count 1 and guilty on count 3.

There were thirty-six defendants charged jointly in the same indictment. Of these, eighteen were tried jointly, the other eighteen having previously pleaded guilty or not having yet been apprehended. Of the eighteen on trial, ten were convicted on various counts, and eight were either acquitted or were given directed verdicts of not guilty.

The conspiracy charged in count 1 was alleged to have commenced on or about October 12, 1927, and to have continued until on or about September 15, 1930. The alleged object of the conspiracy was to violate the National Prohibition Act in several counties in the states of Washington and Oregon. Trial was had in the United States District Court for the District of Oregon.

Although there are fifty-three assignments of error, we are following the grouping adopted in the appellants' brief. Many of the points urged by the appellants are so clearly without merit as not to warrant individual mention.

First, it is complained that the counts are improperly joined. In another portion of his brief, however, counsel for the appellants admits that "the defendants probably waived" this alleged defect "by failing to move there-against." That is clearly the law in a case of this kind. Vlassis v. United States (C. C. A. 9) 3 F.(2d) 905, 906.

But, argue the appellants, "where counts are improperly joined and trial had thereon without objection, defendants are nevertheless entitled to a separate quota of challenges." In this contention, the appellants are in error. 28 USCA § 424; United States v. Hall et al. (C. C.) 44 F. 883, 884, 10 L. R. A. 323; Kettenbach et al. v. United States (C. C. A. 9) 202 F. 377, 382.

It is next urged that the court erred in failing to direct a verdict for the defendants on count 1. There is no merit to this contention. There was ample evidence that a liquor "ring" had been operating in two states for a period of years, and that the defendants who were found guilty under count 1 had been definitely connected with the widespread conspiracy laid in the indictment.

Under the above general heading, the appellants' brief contains a number of subgroups, which we have noticed but do not find borne out by the record.

The appellants also urge that the court erred in the admission of testimony. In that connection, elsewhere in his brief and at greater length in his oral argument, counsel for the appellants urged a more difficult point, which is worthy of more extended consideration.

Appellants moved for a directed verdict at the close of the government's case, and announced their intention to stand on the motion and not introduce any evidence. One Tooze, a codefendant, then took the stand in his own behalf and in the course of his testimony made certain statements referring to the appellants, which testimony, it is claimed, was prejudicial to them. Counsel moved that the jury be instructed to disregard such testimony, which motion was denied, and the ruling is assigned as error. Tooze was cross-examined, but it does not appear whether by the government or by counsel for the appellants.

In 1878 Congress enacted the following statute: "In the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, * * * the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him." 28 USCA § 632.

This statute removed the common-law incapacity of a party to testify in his own behalf. In the case of Wolfson v. United States (C. C. A. 5) 101 F. 430, 436, certiorari denied, 180 U. S. 637, 21 S. Ct. 919, 45 L. Ed. 710, the court said: "This statute in terms makes a defendant a competent witness. The statute does not say `a competent witness for himself.' It does not say `a competent witness for the government.' He is made simply `at his own request, but not otherwise,' a competent witness. It would clearly be improper for the government, while he was on trial, in the absence of a request on his part, to call him as a witness. The purpose of the law was to make defendants competent witnesses, but at the same time preserve to them the right to remain silent without prejudice. When any defendant chooses to testify, the statute permits him to do so. It does not matter whether his testimony is for or against himself, or for or against his co-defendant."

See, also, Benson v. United States, 146 U. S. 325, 336, 13 S. Ct. 60, 36 L. Ed. 991; Wong Din v. United States (C. C. A. 9) 135 F. 702, 706; Grunberg v. United States (C. C. A. 1) 145 F. 81, 86; Radin et al. v. United States (C. C. A. 2) 189 F. 568, 576; Henderson v. United States (C. C. A. 8) 20 F.(2d) 90, 92.

It is well settled that an accused who testifies in his own behalf is subject to cross-examination as any other witness. Raffel v. United States, 271 U. S. 494, 497, 46 S. Ct. 566, 70 L. Ed. 1054; Underhill's Criminal Evidence (3d Ed.) §§ 113 and 114, pp. 129, 130.

In Frazee v. State, 12 Okl. Cr. 134, 152 P. 462, 463, it was held that a defendant may impeach a codefendant who testifies against him. To the same effect, see State v. Hardin et al., 46 Iowa, 623, 627, 628, 26 Am. Rep. 174; State v. Pfefferle, 36 Kan. 90, 12 P. 406, 408; People v. Maggio, 324 Ill. 516, 155 N. E. 373, 378.

Likewise, it has been held that a defendant may cross-examine a codefendant who has testified for the prosecution. State v. Black, 97 N. J. Law, 361, 118 A. 103.

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