Fay v. United States
| Decision Date | 05 December 1927 |
| Docket Number | No. 5252.,5252. |
| Citation | 22 F.2d 740 |
| Parties | FAY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. P. Pope and Wm. M. Morgan, both of Boise, Idaho, for plaintiff in error.
H. E. Ray, U. S. Atty., and Sam S. Griffin and Wm. H. Langroise, Asst. U. S. Attys., all of Boise, Idaho.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
Plaintiff in error was convicted on four counts, two being for possession of intoxicating liquor at Burley, Idaho, on September 14 and 16, 1926, and the other two, sales at the same place upon each of those days. From a judgment on the verdict, he brings error. Two assignments are argued; one involving the exclusion of evidence, and the other an instruction to the jury.
As bearing upon the credibility of a government witness, counsel for defendant put to him this question: "I will ask you if it is not a fact that in Brigham City, Utah, * * * you were convicted of a crime about a year and a half ago?" Upon counsel's declination to limit the inquiry to a felony, the court sustained the government's objection. Section 6082, Rev. Stat. Idaho, 1887, in existence when Idaho became a state and still in force (Comp. Stat. Idaho 1919, § 8038), provides that "a witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony."
It is believed the rule it embodies in respect to the point under consideration has, from the beginning, been consistently observed by the federal court in that district. Such conformity is within the reasoning of Rendleman v. United States (C. C. A.) 18 F.(2d) 27, and while, as was said in Neal v. United States (C. C. A.) 1 F.(2d) 637, it may be that the rules of evidence which prevailed in a territory at the time it was admitted as a state "are not to be inflexibly applied in the federal courts of that district, but are subject to modification from time to time as the trend of judicial authority and legislative enactment required," no such reasons are here presented.
The two cases relied upon by plaintiff in error, from this circuit, lend him little support. In Smith v. United States (C. C. A.) 10 F.(2d) 788, the statement that the witness might have been asked "whether he had been convicted of a crime" was used in arguendo, and must be construed with reference to the point then under consideration. There was no call for a careful limitation. In Merrill v. United States (C. C. A.) 6 F.(2d) 120, the court deferred to an established practice in Oregon, where the case arose, thus recognizing the principle of conformity which prevailed in the trial of the instant case. It may be conceded that such objectionable variance in results argues for a modification of the rule, but upon reflection it will be seen that the whole question is beset with difficulties of the most perplexing character. With diversity of local practice in the several states, the two qualities of uniformity and conformity, both generally thought to be desirable, are unattainable in full measure. Moreover, no rule is established by the federal statutes, and the common law of England is not controlling. United States v. Reid, 12 How. 361, 13 L. Ed. 1023; Logan v. United States, 144 U. S. 263, 12 S. Ct. 617, 36 L. Ed. 429; Rosen v. United States, 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406. Except in so far as may be required by considerations of conformity, we are of the opinion that the rule embodied in the Idaho statute should not be enlarged. And it may be suggested that, with the modern tendency to classify criminal offenses into felonies and misdemeanors by reference to the maximum penalty that may be imposed rather than to considerations of moral obliquity, even that rule may be unwisely resorted to in cases lying beyond the reasons upon which such a rule is supposed to rest. To humiliate a witness by publicly branding him as a "felon," when in truth his conviction was only for a petty offense, is more likely to pervert than to promote justice. In such a practice there is danger both of antagonizing jurors and of intimidating sensitive witnesses.
The instruction assailed by the second assignment was upon the subject of an "alibi" defense. That it set forth fairly and fully the law of such a defense generally is not seriously questioned. The features...
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Pulley v. State
...is a likelihood that the jury will become confused about the burden of persuasion . . . ." (Emphasis added.) See also Fay v. United States, 22 F.2d 740 (9th Cir. 1927); United States v. Burse, 531 F.2d 1151 (2d Cir. 1976); United States v. Megna, 450 F.2d 511 (5th Cir. 1971); Stump v. Benne......
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State v. Simon, 49476
...an alibi constituted reversible error where 'defendant testified that he was not present at the commission of the offense.' Fay v. United States (9 Cir.), 22 F.2d 740, involving the possession and sale of intoxicating liquor, in holding a defendant was entitled to have the jury pass on his ......
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Gethers v. U.S.
...defense case was that Gethers was never in the "cut" at the time the crime was committed. Under these circumstances, Gray and to some extent Fay hold that an alibi instruction must be given upon Although the evidence against Gethers was compelling—the police identification was corroborated ......
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Webster v. US, 90-CF-905
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