Coulston v. United States

• Decision Date: 29 June 1931
• Docket Number: No. 397.,397.
• Citation: 51 F.2d 178
• Parties: COULSTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

51 F.2d 178 (1931)

COULSTON v. UNITED STATES.

No. 397.

Circuit Court of Appeals, Tenth Circuit.

June 29, 1931.

James H. Mathers, of Oklahoma City, Okl. (J. Q. A. Harrod, Laynie Harrod, and James C. Mathers, all of Oklahoma City, Okl., on the brief), for appellant.

Herbert K. Hyde, Asst. U. S. Atty., of Oklahoma City, Okl. (Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl., on the brief), for the United States.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The appellant was convicted of violating the Anti-Narcotic Acts (title 21, U. S. C., c. 6 21 USCA § 171 et seq.; title 26, U. S. C., c. 11 26 USCA § 691 et seq.). The government's evidence was that defendant and one Mathews were partners engaged in selling morphine; that defendant furnished the morphine and Mathews did the selling; that an addict arranged with defendant to make a purchase from Mathews; and that the morphine was delivered by Mathews in the presence of defendant. The defendant took the stand and denied the partnership, admitted he was present when Mathews made the delivery, but disclaimed any knowledge of what was going on.

Several errors are assigned. It is claimed that a demurrer to the government's evidence should have been sustained. Aside from the fact that the point was waived by the introduction of evidence and the failure to move for a directed verdict at the close of all the evidence, the claim is frivolous. It is claimed that error was committed because the trial court commented on the evidence, counsel asserting the law to be that "the trial court is not permitted to convey, in the slightest manner, to the jury any indication whatsoever as to the weight, force, effect or truthfulness of any evidence. And should he do so through inadvertence or otherwise, it is reversible error." That is not, and never has been, the law in the national courts. On the contrary, the trial judge has the right to analyze and classify with fairness the evidence on both sides, and otherwise aid the jury in its consideration; and as long as he makes it clear that the jury has the exclusive right to decide the facts, he may comment on the weight of the evidence, although he should not argue the case. Complaint is made because the stenographer did not report all of the proceedings of the trial, including arguments of counsel. Trials are not officially reported in the national courts; if either party desires a stenographic report as an aid in the preparation of the bill of exceptions, or of his assignments of error, or for any reason, he has the absolute right to have a stenographer present for that purpose; but the responsibility is upon the parties to provide themselves with such a record. A stenographic report, while helpful, is not indispensable in the settlement of a bill of exceptions.

The record discloses that, on cross-examination of the defendant, the court permitted, over objection, an inquiry into a controversy between defendant and the narcotic agent, involving the return of $25 supposedly paid the defendant in connection with a transaction involving morphine and which occurred some thirteen months after the offense for which he was on trial. The record further discloses that on rebuttal the government was permitted to prove, over objection, its version of such subsequent transaction, and to prove a further conversation between the agent and defendant over $1,750 worth of morphine. Neither of the transactions proven on rebuttal had the slightest connection with the sale for which defendant was being tried.

In our judgment, this was prejudicial error. The issue presented was a simple one: Did defendant negotiate the sale on January 20, 1929, as testified to by two government witnesses, or was he an innocent bystander, as he testified. These remote and disconnected transactions had no evidentiary bearing on this issue; at best they could serve but to create an atmosphere of hostility and to distract the attention of the jury from the issue. The briefs indicate a confusion of thought upon two entirely different evidentiary principles — one the admissibility of proof of other offenses; the other, the impeachment of the defendant as a witness if he takes the stand.

In the civil law, and very early in the common law, evidence of other crimes was ad mitted on the theory that a person who has committed one crime is apt to commit another. The inference is so slight, the unfairness to the defendant so manifest, the difficulty and delay attendant upon trying several cases at one time so great, and the confusion of the jury so likely, that for more than two hundred years it has been the rule that evidence of other crimes is not admissible. Boyd v. United States, 142 U. S. 450, 12 S. Ct. 292, 35 L. Ed. 1077; Hall v. United States, 150 U. S. 76, 14 S. Ct. 22, 37 L. Ed. 1003; Niederluecke v. United States (C. C. A. 8) 21 F.(2d) 511; Cucchia v. United States (C. C. A. 5) 17 F.(2d) 86; Smith v. United States (C. C. A. 9) 10 F.(2d) 787; Wigmore on Evidence (2d Ed.) § 194. Corpus Juris cites cases from forty-four American jurisdictions in support of this rule. 16 C. J. 586. There are many exceptions to the rule, the most common of which is that, if the prosecution must show a specific intent, evidence of other similar offenses may be used to establish that fact. For example, in a prosecution for a scheme to defraud, the existence of the crime depends upon the proof of fraudulent intent; and many times the proof of that intent is found in the "evidence of other acts and doings of the party, of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment." Wood v. United States, 41 U. S. (16 Pet.) 342, 360, 10 L. Ed. 987; Williamson v. United States, 207 U. S. 425, 28 S. Ct. 163. 52 L. Ed. 278; Wigmore on Evidence (2d Ed.) §§ 300-373; 16 C. J. 589.¹ All of the many so-called exceptions to the general rule of exclusion can be covered by stating the rule negatively; that is, relevant and competent evidence of guilt is not rendered inadmissible because it also proves that defendant committed another offense. Moore v. United States, 150 U. S. 57, 61, 14 S. Ct. 26, 37 L. Ed. 996; Tucker v. United States (C. C. A. 6) 224 F. 833; Hogan v. United States (C. C. A. 5) 48 F.(2d) 516; Miller v. United States (C. C. A. 9) 47 F.(2d) 120. Or, to use the language of Justice Brewer, "A party cannot, by multiplying his crimes, diminish the volume of competent testimony against him." State v. Adams, 20 Kan. 311, 319.

The government was not obligated to show any specific intent in the case at bar. In Paris v. United States (C. C. A. 8) 260 F. 529, the defendants were charged with a violation of the Anti-Narcotic Act, and the cause was reversed because evidence of other violations of the act was admitted, the court holding that "the intent of the defendants, or either of them, was not an essential element of the offense with which they were charged in the case at bar." The evidence offered by the government in this case had no probative bearing on the guilt of the defendant, and should have been excluded.

If the defendant takes the witness stand, a different rule comes into play. He steps out of his character as a defendant, for the moment, and takes on the role of a witness, and as such becomes subject to cross-examination in the same manner and to the same extent as any other witness. The rules of evidence in criminal cases may not, in the same jurisdiction, be the same as the evidentiary rules in civil cases, sections 858 and 914 of the Revised Statutes (title 28, U. S. C. §§ 631, 724 28 USCA §§ 631, 724) having no application to criminal cases. In criminal cases, the competency of witnesses is determined by the common law of the jurisdiction as it existed when the state was admitted into the Union Neal v. United States (C. C. A. 8) 1 F.(2d) 637, and cases there cited; United States v. Fay (D. C.) 19 F.(2d) 620; Id. (C. C. A. 9) 22 F.(2d) 740; Rendleman v. United States (C. C. A. 9) 18 F.(2d) 27; Zoline on Fed. Crim. Law and Procedure, vol. 1, § 300, page 248, subject to such changes as may be brought about by judicial authority or congressional enactment Rosen v. United States, 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406; Neal v. United States, supra; Tinsley v. United States (C. C. A. 8) 43 F.(2d) 890. In criminal cases, there may therefore be differences arising from variations in the common law in the different jurisdictions at the time of their admission into the Union. It may however be said that, subject to possible variants so arising, it is well settled in criminal cases in the federal courts that cross-examination must be confined to the subjects of the direct examination Philadelphia & Trenton R. R. Co. v. Stimpson, 39 U. S. 14 Pet. 448, 10 L. Ed. 535; Sawyer v. United States, 202 U. S. 150, 26 S. Ct. 575, 50 L. Ed. 972, 6 Ann. Cas. 269; McKnight v. United States (C. C. A. 6) 122 F. 926; Resurrection Gold Mining Co. v. Fortune Gold Mining Co. (C. C. A. 8) 129 F. 668; Harrold v. Oklahoma (C. C. A. 8) 169 F. 47, 17 Ann. Cas. 868; Illinois Central R. R. Co. v. Nelson (C. C. A. 8) 212 F. 69; Hendrey v. United States (C. C. A. 6) 233 F. 5; Heard v. United States (C. C. A. 8) 255 F. 829; Zoline on Fed. Crim. Law and Procedure, vol. 1, § 385, page 317; that the credibility of a defendant who has testified may be impeached in the same manner and to the same extent as any other witness, and no further Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054; Fitzpatrick v. United States, 178 U. S. 304, 315, 20 S. Ct. 944, 44 L. Ed. 1078; Reagan v. United States, 157 U. S. 301, 305, 15 S. Ct. 610, 39 L. Ed. 709; Madden v. United States (C. C. A. 9) 20 F.(2d) 289; Tucker v. United States (C. C. A. 8) 5 F.(2d) 818; questions asked on cross-examination for the purposes of impeachment should be confined to acts or conduct which reflect upon his integrity or...