Diggs v. United States
Decision Date | 18 March 1915 |
Docket Number | 2405.,2404 |
Citation | 220 F. 545 |
Parties | DIGGS v. UNITED STATES. [1] CAMINETTI v. SAME. |
Court | U.S. Court of Appeals — Ninth Circuit |
Robert T. Devlin and Marshall B. Woodworth, both of San Francisco Cal. (S. Luke Howe, of Sacramento, Cal., and Nathan C Coghlan, of San Francisco, Cal., of counsel), for plaintiffs in error.
J. A. Cooper, of San Francisco, Cal. (Anthony Caminetti, Jr., of San Francisco, Cal., of counsel), for plaintiff in error Caminetti.
Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.
The two cases named above, although separately tried, arose out of a single transaction, in which each of the plaintiffs in error was involved. For the reason that the points presented to this court are similar in the two cases, they will be disposed of in a single opinion of this court.
The indictment against Diggs contained six counts. He was convicted on the first four counts, and there was no verdict on the last two. The first count charged him with transporting Marsha Warrington from Sacramento, Cal., to Reno, Nev., for the purpose of debauchery, and for an immoral purpose, to wit, that the aforesaid Marsha Warrington should be and become his concubine and mistress. The second count charged him with transporting Lola Norris from Sacramento to Reno, that she might become the mistress and concubine of Caminetti. The third count charged him with procuring a ticket for Marsha Warrington from Sacramento to Reno, with the intent that she should become his concubine and mistress. The fourth count charged him with buying a ticket for Lola Norris, with the intent that she should give herself up to debauchery, and for an immoral purpose, to wit, that she could be and become the concubine and mistress of Caminetti. The fifth and sixth counts charged him with persuading, inducing, and enticing Marsha Warrington and Lola Norris to go to Reno for the immoral purposes set forth in the other counts.
The indictment against Caminetti contained four counts. The indictment was similar to that against Diggs, excepting the two counts relating to the purchase of tickets were omitted from Caminetti's indictment. He was convicted on the first two counts and acquitted on the last two.
Error is assigned to the following instruction to the jury:
This assignment presents the question whether the waiver of the privilege of silence by a defendant in a criminal case in becoming a witness in his own behalf is a complete waiver, so as to place him in the position of any other witness in the case, or is only a partial waiver; that is to say, a waiver so far as the defendant sees fit to testify, leaving him, as to other matters, still under the protection of the fifth amendment. The statute of March 16, 1878 (U.S. Comp. Stats of 1913, Sec. 1465), provides that a person charged with an offense Upon a careful and cautious consideration of the question 'we reach the conclusion that the statute should be held to mean that the waiver is complete, and that when it has been made the defendant is no longer under the protection of the amendment.
The only cause we have found for hesitation in reaching that conclusion is the fact that the Circuit Court of Appeals for the Eighth Circuit, a court for which we entertain the highest respect, in a similar case (Balliet v. United States, 129 F. 689, 64 C.C.A. 201), held such an instruction reversible error. It is to be said, however, that while the opinion in that case contains no discussion of or reference to any adjudicated case of the state courts we think it is not improbable that the conclusion reached was influenced by the then settled rule of the Supreme Court of the state of Missouri. But in 1913 the Supreme Court of Missouri in State v. Larkin, 250 Mo. 218, 157 S.W. 600, 46 L.R.A. (N.S. 13, overruled its prior decisions. In that case the court said:
After citing numerous cases the court proceeded:
And the court referred to the earlier rule in Missouri as expressed in State v. Musick, 101 Mo. 271, 14 S.W. 214, in which it was said:
'These statements made by the state's witnesses were not denied by defendant, and therefore stand admitted, as much so as if the defendant had admitted them in terms.'
We think that the opinion in Reagan v. United States, 157 U.S. 301, 15 Sup.Ct. 610, 39 L.Ed. 709, should be taken as affirming, in substance, what was said of the rule so expressed in State v. Larkin. In that case Mr. Justice Brewer, for the court, referring to the act of March 16, 1878, said:
In Brown v. Walker, 161 U.S. 591, 597, 16 Sup.Ct. 644, 647 (40 L.Ed. 819) the court said: 'Thus, if the witness himself elects to waive his privilege, as he may doubtless do, since the privilege is for his protection and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure.'
In Fitzpatrick v. United States, 178 U.S. 304, 316, 20 Sup.Ct. 944, 949 (44 L.Ed. 1078) the court said:
'While the court would probably have no power of compelling an answer to any...
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