Brown v. United States
Decision Date | 29 January 1953 |
Docket Number | No. 13210.,13210. |
Parties | BROWN v. UNITED STATES. |
Court | U.S. Court of Appeals — Ninth Circuit |
Wendell P. Kay and Roger Cremo, Anchorage, Alaska, for appellant.
J. Earl Cooper, U. S. Atty., Anchorage, Alaska, for appellee.
Before MATHEWS and STEPHENS, Circuit Judges, and DRIVER, District Judge.
On February 27, 1951, in the District Court for the Territory of Alaska, appellant, Archie L. Brown, was indicted for violating § 4807, Compiled Laws of Alaska, 1933, now § 65-5-63, Alaska Compiled Laws Annotated, 1949.1 The indictment charged: "That during the period from March 12, 1948, to and including August 28, 1948, appellant, at Anchorage, Alaska, Third Judicial Division, District of Alaska, did convert to his own use certain money, to wit, Four Thousand Three Hundred Fifty Dollars ($4,350) lawful money of the United States of America, said money being then and there the property of the Territory of Alaska and which had come into his possession by virtue of his position as Deputy Tax Collector for the Department of Taxation, Territory of Alaska."
Appellant was arraigned, pleaded not guilty, was tried and found guilty and filed a motion for a new trial. The motion was denied,2 and a judgment was entered sentencing appellant to be imprisoned for 2½ years. This appeal is from that judgment.
The Government's evidence in chief showed or strongly tended to show that, during the period mentioned in the indictment, appellant converted to his own use $4,350 which he, as Deputy Tax Collector, had collected and received as taxes owing to the Territory, and for which he had issued tax receipts,3 and that he concealed the conversion by remitting to the Department of Taxation $4,350 which he, as Deputy Tax Collector, had collected and received as taxes owing to the Territory, but for which he had issued no receipt or receipts, the last mentioned $4,350 having been collected by him from Leo Tyler and Cecil A. Poythress, partners doing business as Northern Music Company.
As his reason for not issuing a receipt or receipts for the $4,350 collected by him from Tyler and Poythress, appellant testifying as a witness for himself, stated that he had refunded that $4,350 to Poythress in August, 1948.4 On cross-examination, appellant was shown a letter written to him by J. Earl Cooper, United States Attorney for the Third Division of the Territory, on December 12, 1950, and testified that he received the letter shortly after that date and never answered it. The letter read as follows:
In the course of, and as a part of, the cross-examination of appellant, the Government offered the letter in evidence. Appellant objected to its admission on the ground that it was incompetent, irrelevant and immaterial. The objection was overruled, and the letter was admitted. Appellant contends that its admission was error. There is no merit in this contention. Having voluntarily taken the witness stand and testified as his own witness, appellant was subject to cross-examination like any other witness.6 The fact that appellant received the letter and never answered it was pertinent to his testimony, on direct examination, that he had refunded the $4,350 collected by him from Tyler and Poythress. Therefore the letter was a proper part of his cross-examination.7
In support of his contention that the admission of the letter was error, appellant cites Poy Coon Tom v. United States, 9 Cir., 7 F.2d 109, wherein the admission of an anonymous letter found in the possession of the defendant (Poy Coon Tom) was held to be error. In that case, the letter was admitted as a part of the Government's evidence in chief, and not as a part of any cross-examination. Therefore that case is not in point here.
The District Court's charge to the jury contained an instruction (No. 2) reading as follows:
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