Campbell v. United States, 9867.

• Decision Date: 06 June 1949
• Docket Number: No. 9867.,9867.
• Parties: CAMPBELL v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

85 US App. DC 133, 176 F.2d 45 (1949)

CAMPBELL v. UNITED STATES.

No. 9867.

United States Court of Appeals District of Columbia Circuit.

Argued May 9, 1949.

Decided June 6, 1949.

Mr. James J. Laughlin, Washington, D.C., for appellant.

Mr. Richard M. Roberts, Assistant United States Attorney, Washington, D.C., with whom Messrs. George Morris Fay, United States Attorney, Joseph M. Howard and Arthur J. McLaughlin, Assistant United States Attorneys, Washington, D.C., were on the brief, for appellee. Messrs. Sidney S. Sachs, John D. Lane and L. Clark Ewing, Assistant United States Attorneys, Washington, D.C., also entered appearances for appellee.

Before CLARK, WILBUR K. MILLER and PRETTYMAN, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

Found guilty by a jury in the United States District Court for the District of Columbia of assault with intent to commit rape and also of simple assault, Ciberto Rudolph Campbell appeals.

He relies for reversal upon four points, three of which are so insubstantial as to require little discussion: (a) he maintains that the verdict was contrary to the evidence, but we find in the record abundant and convincing testimony which amply justified the jury's verdict; (b) he says the court erred in refusing to tell the jury to receive "with care and caution" the evidence of the two small girls who were the victims of the assaults, but the instruction given on that subject, which we regard as sufficient, was to consider the tender years of those two witnesses in determining what weight to give their testimony; (c) he complains of the court's refusal to instruct that an accusation of an attempt to have carnal knowledge is "easily to be made and hard to disprove, but harder still to defend against, though the defendant be ever so innocent", but our view is that that statement, appropriate enough in argument perhaps, obviously has no place in a charge to a jury.

The appellant's fourth ground for reversal presents a question of first impression in this jurisdiction. While testifying in his own behalf, he was asked whether he had ever been convicted of a crime and, upon being required to answer, disclosed the fact that a few weeks before in the Municipal Court he had been convicted of petit larceny. He vigorously argues that it was error to admit evidence of this previous conviction because an appeal therefrom was then pending in the Municipal Court of Appeals for the District of Columbia.

At common law, a witness could be asked, for impeachment purposes, whether he had ever been convicted of a crime only if the conviction had been for an infamous crime involving moral turpitude. The matter is governed in the District of Columbia by Title 14, § 305, of the District of Columbia Code (1940), which is as follows:

"No person shall be incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime, but such fact may be given in evidence to affect his credit as a witness, either upon the cross-examination of the witness or by evidence aliunde; and the party cross-examining him shall not be concluded by his answers as to such matters. In order to prove such conviction of crime it shall not be necessary to produce the whole record of the proceedings containing such conviction, but the certificate, under seal, of the clerk of the court wherein such proceedings were had, stating the fact of the conviction and for what cause, shall be sufficient. (Mar. 3, 1901, 31 Stat. 1357, ch. 854, § 1067; June 30, 1902, 32 Stat. 540, ch. 1329.)"

The rationale of the statute was thus stated by this court in Clawans v. District of Columbia, 1932, 61 App.D.C. 298, 299, 62 F.2d 383, 384:

"* * * the basis of the admissibility of convictions always was and always should be grounded upon the theory that the depraved character of persons who commit crimes involving moral corruption makes them unworthy of trust in testifying."

This reason for receiving evidence of a prior conviction is exactly that which formed the basis of the common law rule; that is to say, one who has been convicted of a crime involving moral turpitude deserves less credit as a witness than one who has not been so convicted; consequently the jury should know if a witness has been convicted of such a crime so that it may weigh that fact in passing upon his credibility.

It was held in the Clawans case that a violation of a municipal ordinance is not a crime within the meaning of the Code provision permitting a former conviction of crime to be shown to affect credibility, but this court has held in other cases that the statute does not limit such proof to conviction of a felony, since the word "crime" includes both felonies and misdemeanors. Murray v. United States, 1923, 53 App.D.C. 119, 288 F. 1008, certiorari denied 262 U.S. 757, 43 S.Ct. 703, 67 L.Ed. 1218; Bostic v. United States, 1937, 68 App.D.C. 167, 94 F.2d 636, certiorari denied 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095; Sanford v. United States, 1938, 69 App.D.C. 44, 98 F.2d 325. Save for these decisions, we should be inclined to construe the word "crime" in the statute as being synonymous with the word "felony", thus attributing to Congress the intention of merely codifying the common law rule which has a reasonable basis, instead of extending it to include misdemeanors, which may not involve moral turpitude from which depravity may be inferred. But we are not disposed to disturb a statutory construction which has been followed for more than a quarter of a century, especially since Congress has not seen fit during that long period to manifest dissatisfaction with it by amending the Code provision. Under that interpretation, if Campbell had been finally convicted of petit larceny, it was not error to allow that fact to be elicited from him by cross-examination or to be shown by evidence aliunde.

But it seems to us wholly illogical and unfair to permit a defendant to be interrogated about a previous conviction from which an appeal is pending. If the judgment of conviction is later...