Foerster v. United States

• Decision Date: 14 July 1902
• Docket Number: 1,641.,1,639
• Citation: 116 F. 860
• Parties: FOERSTER v. UNITED STATES (two cases)
• Court: U.S. Court of Appeals — Eighth Circuit

116 F. 860

FOERSTER v. UNITED STATES (two cases)

Nos. 1,639, 1,641.

United States Court of Appeals, Eighth Circuit.

July 14, 1902

Syllabus by the Court.

The fact that one who has long been acquainted with a witness and his associates has never heard any discussion or remarks concerning his character is excellent evidence of his good character and good reputation. Testimony that one's reputation for truth and veracity is good is not rendered incompetent by the statement of the witness on cross-examination that it had never been brought up to him before.

A charge in an indictment that the defendant sold liquors to divers Indians of the Ponca tribe to the grand jurors unknown sufficiently specifies the buyers, in the absence of evidence that their names were known to the grand jury.

Alex. Altschuler, H. C. Brome, and A. H. Burnett, for plaintiffs in error.

S. R (W. S. Summers, on the brief), for the United States.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

SANBORN Circuit Judge.

John Foerster and Adam Foerster were jointly indicated for selling liquor to Indians. The indictment contained two counts. The first charged them with selling intoxicating liquors to one Peter Bird Head, an Indian of the Ponca tribe of Indians. The second charged them with selling intoxicating liquors 'to divers Indians to the grand jurors unknown, Indians of the Ponca tribe of Indians, which said Indians and said tribe of Indians were then and there under the charge of Henry C Baird, a duly appointed Indian agent of the United States ' The defendants were tried and convicted together under this indictment, and the court fined each of them $200 and costs. They challenge the judgments against them for these fines, and assign the same errors in the two cases, which they present here by separate writs of error.

The character of Henry Dupre, one of the witnesses for the plaintiff, for truth and veracity, had been assailed by the testimony for the defendants. Thereupon H. C. Baird, the United States Indian agent, testified upon direct examination in this way: 'Q. Do you know the general reputation of Henry Dupre for truth and veracity? A. Yes. Q. What is it good or bad? A. Good. ' On cross-examination he testified: 'Q. Who have you ever heard say that Dupre's reputation is good? A. It has never been brought up to me before. ' Thereupon the defendants' counsel moved to strike out the evidence of this witness on this subject as incompetent and irrelevant, and because proper foundation for it was not laid, and the court said: 'The objection is overruled. A person whose reputation is good is never discussed; but a man whose reputation is bad is discussed among others. ' This ruling, and the remarks accompanying it, are specified as error. But the ruling was right, and the remarks of the court stated a well-settled rule of evidence. The reputation and character of one who quietly and faithfully discharges his legal, civil, and religious duties give little occasion for remark, and are seldom the subject of discussion. Common experience teaches us that the fact that one's character and reputation are not discussed is excellent evidence that they give no occasion for censure, and that they are good, and this is the established rule of the law. State v. Lee, 22 Minn. 407, 409, 21 Am.Rep. 769; State v. Nelson, 58 Iowa, 208, 211, 12 N.W. 253; People v. Davis, 21 Wend. 309, 315; Reg. v. Rowton, 2 Benn.& Heard, Cr.Cas. 333; Gandolfo v. State, 11 Ohio St. 114; Jones Ev. Sec. 868.

There are many other specifications of error. Several challenge the rulings of the court in the admission of evidence. Others assail the charge of the court. But they all rest upon a single proposition, and that is that the second count of the indictment was insufficient to charge an...