Bruchman v. United States

• Decision Date: 22 March 1907
• Docket Number: Criminal 239
• Citation: Bruchman v. United States, 11 Ariz. 178, 89 P. 413 (Ariz. 1907)
• Parties: R. M. BRUCHMAN, Appellant, v. UNITED STATES OF AMERICA, Respondent
• Court: Arizona Supreme Court

89 P. 413

11 Ariz. 178

R. M. BRUCHMAN, Appellant, v. UNITED STATES OF AMERICA, Respondent

Criminal No. 239

Supreme Court of Arizona

March 22, 1907

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Richard E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

APPEAL from a judgment of the District Court of the Fourth Judicial District. Richard E. Sloan, Judge. Affirmed.

The facts are stated in the opinion.

J. F Wilson, and E. S. Clark, for Appellant.

The defendant was indicted for selling whisky to this Indian. There was no charge that he sold alcohol or used it in any manner whatever; hence it was a clear variance from the charge. It was immaterial, and not only immaterial, but it was incompetent to prove the charge made, and any testimony therefore, permitted to be used at the trial by the court to secure the conviction which was had regarding the alcohol had or sold on the premises of defendant was error. The testimony was so prejudicial, or calculated to be, that a fair conviction could not be had, but that it was immaterial and incompetent clearly, see the following authorities: State v. Oppenheimer, 41 Wash. 630, 84 P. 588; State v Marselle, 43 Wash. 273, 86 P. 586.

The testimony of the witness Maxwell, as to the presence of the witness Ybarra at defendant's store at the time Ybarra testified he was there was incompetent, and should have been excluded. Bennett v. State, 52 Ala. 370, reported in Hawley's Crim. Rep., vol. 1, p. 188; State v. Garvey, 11 Minn. 163; Crane v. Town of Northfield, 33 Vt. 124; Commonwealth v. Cooley, 6 Gray (Mass.), 355; Pelamourges v. Clark, 9 Iowa, 16; Walker v. Walker, 34 Ala. 469.

The remarks of the United States attorney objected to were improper, for it is a general rule that any statements made by the prosecuting officer in closing his argument to the jury, or in making any statement to the jury, who uses language or who makes statements not based upon evidence -- legitimate evidence brought out at the trial -- which are calculated to prejudice the rights of the defendant on trial, is reversible error. This rule extends even to civil cases. The attorney who misrepresents facts or who draws conclusions and makes statements in the form of argument not based upon fact calculated to prejudice the rights of the defendant, even in a civil case, commits reversible error. In criminal cases, where the liberties of mankind are involved, and where the guard is more strictly made by the law, the error is graver still. This is declared to be the law in nearly every state in this Union. People v. Greenwald, 115 N.Y. 520, 22 N.E. 180; People v. Brooks, 131 N.Y. 321, 30 N.E. 189; Tucker v. Henniker, 41 N.H. 317; Lauback v. State, 12 Tex. App. 583; Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; State v. Smith, 75 N.C. 306; Rea v. Harrington, 58 Vt. 190, 56 Am. Rep. 561, 2 A. 475; Newton v. State, 21 Fla. 53; Moore v. State, 21 Tex. App. 666, 2 S.W. 887; Rudolph v. Landwerlen, 92 Ind. 34; Schooltown v. Shaw, 100 Ind. 268; Hall v. Wolff, 61 Iowa 559, 16 N.W. 710; Bremmer v. Green Bay etc. R.R. Co., 61 Wis. 114, 20 N.W. 687; People v. Cook, 148 Cal. 334, 83 P. 43. The courts have repeatedly held that where damaging statements of the character named and of the kind made in this case by the prosecuting officer are made, even if the court instructed the jury to disregard them, it did not cure the error, because the effect was already in and the injury effected -- it could not be withdrawn. People v. Corey, 157 N.Y. 332, 51 N.E. 1024; Brooks v. Rochester R.R. Co., 156 N.Y. 244, 50 N.E. 945, and cases cited on that point in McDonald v. People, 126 Ill. 150, 9 Am. St. Rep. 559, 18 N.E. 817; People v. Fielding, 158 N.Y. 542, 70 Am. St. Rep. 495, 53 N.E. 497, 46 L.R.A. 641.

J.L.B. Alexander, United States Attorney, and Edwin F. Jones, Assistant United States Attorney, for Respondent.

The answer in the form given by the witness Maxwell was admissible as a whole. It was contradictory of the evidence given by the witness Ybarra in behalf of the defendant as to the time when Ybarra was in defendant's store and has seen the transaction between defendant and the Indian. Under the circumstances, it was legitimate for the government to contradict the witness Ybarra, as it did by the witness Maxwell, and the testimony of the witness Maxwell, of which defendant complains, became a relevant fact in the case, and therefore admissible, the rule in that respect being that "where it is clearly shown, either directly or by relevant facts, that if a certain event had occurred or fact existed, the witness must have observed it, the evidence is received, and the observing witness is permitted to state in connection with such proof the probability or certainty that he would have heard or seen or in any other way observed an alleged occurrence had it actually taken place." 17 Cyc. 83; Haun v. Rio Grande W. Ry. Co., 22 Utah 346, 62 P. 908.

The range of discussion of counsel on argument before a jury is wide, and a mere erroneous statement of evidence is not ground for a new trial. People v. Barnhart, 59 Cal. 402; People v. Lee Ah Yute, 60 Cal. 95. Counsel may express an opinion in his argument. People v. McMahon, 124 Cal. 435, 57 P. 224. No advantage can be taken of the alleged misconduct of an attorney on the argument, unless the interposition of the court is asked and an exception taken to its refusal. People v. Shem Ah Fook, 64 Cal. 380, 1 P. 347; People v. Beaver, 83 Cal. 419, 23 P. 321; People v. Abbott, 101 Cal. 647, 36 P. 129; People v. Kramer, 117 Cal. 651, 49 P. 842.

OPINION

DOAN, J.

-- The appellant in this case, R. M. Bruchman, was tried in the district court of the fourth judicial district on the twenty-first day of June, 1906, on the charge of selling whisky to Indians in Navajo county within the said fourth judicial district, and from the judgment and sentence of the court, pronounced upon a verdict of guilty by the jury, he has appealed to this court.

The first error assigned is the ruling of the court on the competency of an Indian named To-hai-be-ga, as a witness for the prosecution. We have examined the testimony of this witness on his voir dire and are satisfied that he was competent to testify. In this connection it is well to state that the examination of the witness was made in the presence of the jury, who could observe the degree of intelligence shown by him, and take it into consideration in determining the weight to be given to his testimony.

The second error assigned is based upon the admission of certain testimony from this same witness, and is untenable, for the reason that this testimony was given on redirect examination, in explanation of the testimony relative to the same facts, that had been first elicited from the witness by the counsel for the defendant in cross-examination, and, while this testimony might have been subject to objection if originally introduced by the prosecution, it was fully competent in explanation of the testimony that had been put in the record by the counsel for the defense.

The third error assigned is based upon the cross-examination of the defendant, who was asked by the United States attorney "Q. How much alcohol did you have there?" "Did you ever keep any alcohol there?" "Did you have a barrel of alcohol?" Which questions were permitted by the court to be answered, over objections by defendant's counsel. The circumstances of the case, and the character of the evidence theretofore given, rendered this testimony perfectly...