Green v. United States

Decision Date09 May 1927
Docket NumberNo. 5006.,5006.
Citation19 F.2d 850
PartiesGREEN et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

George F. Vanderveer, of Seattle, Wash., for plaintiffs in error.

Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge.

The plaintiffs in error here are others of the defendants who were convicted on the trial of the indictment which was under consideration in the case of Olmstead et al. v. United States (No. 5016) 19 F.(2d) 842. They bring the case to this court upon a separate writ of error.

A motion is made to dismiss the writ of error on the ground that the record contains no assignments of error. The writ was allowed and service of citation was had on March 8, 1926. Whether an assignment of errors was filed at the same time does not appear from the record, but the record shows that on May 6, 1926, by stipulation of counsel, an "amended assignment" of errors was filed in the court below. The case was not docketed in this court until November 10, 1926. We are inclined to the view, expressed by Judge Baker in Hultberg v. Anderson (C. C. A.) 203 F. 853, that the requirements of rule 11 that no writ of error shall be allowed unless an assignment of errors has been filed is not jurisdictional, but is only a rule of practice. Such, also, was the view expressed by Judge Denison in Miller v. United States (C. C. A.) 300 F. 529. The motion is denied.

Error is assigned to the admission in evidence of statements which certain defendants not on trial made to government officers while under arrest; said statements having, it is said, no purpose or tendency to promote the objects of the conspiracy, such as the statements of Capt. Jack Rhodes, made at the time of the seizure of the Eva B, as charged in the ninth overt act of count 1. He stated that the Eva B had gone to a point in American waters and there loaded a cargo of liquor, and had then gone to a point in Canadian waters to await an opportunity to bring the liquor into the United States under cover of darkness. Objection was made to the testimony as hearsay. The court, in overruling the objection, instructed the jury that the statement was not to be considered against any of the other defendants under any circumstances, unless it was shown that there was a conspiracy entered into as charged in the indictment, and that, unless it were shown that there was a conspiracy between the defendant Rhodes and some of the other defendants on trial, or all of them, they could not consider it under any circumstances. It is to be noted, also, that the statements of Rhodes were but corroborative of those of Erickson and Green as to the movements of the Eva B, which statements were received in evidence without objection.

At the close of the trial the defendants moved to withdraw from the consideration of the jury the ninth overt act for want of competent evidence to sustain it. The motion was denied, but the court instructed the jury that statements by any of the defendants, either to officers of the law or others not involved in the conspiracy, not made in furtherance of the conspiracy, were to be considered as evidence only against the parties making the same, and if such parties were not then on trial the jury should disregard the same. If there was error in that instruction, it was error in favor of the defendants, for evidence had been received tending to connect Rhodes with the conspiracy charged, and, such being the case, his acts or declarations were admissible. That he was not on trial with the other defendants was immaterial, Clune v. United States, 159 U. S. 590, 16 S. Ct. 125, 40 L. Ed. 269; Isenhouer v. United States (C. C. A.) 256 F. 842; Reeder v. United States (C. C. A.) 262 F. 36; Sprinkle v. United States (C. C. A.) 141 F. 811; United States v. McKee, 3 Dill. 546, Fed. Cas. No. 15,685. And to render the declarations admissible it was not even necessary that he should have been indicted, United States v. Cole, 5 McLean, 513, Fed. Cas. No. 14,832. The assignments of error directed to evidence of statements made by Curry, Fletcher, Bennett, and Graignic, who also were defendants, but not on trial, come within the principles above announced, and require no further discussion.

We find without merit, also, the assignment as to the testimony of McLean. McLean was a defendant who had pleaded guilty and was called as a witness for the government. He testified, among other things, that he had a conversation with Bennett, the bookkeeper, who was a defendant, but not on trial, concerning the division of the profits, in which Bennett said: "Eleven men put in $1,000 apiece. It was not just a personal conversation. My duties did not call upon me to know anything about that, but it came up one day in my general work." This was objected to on the ground that it was a statement not made in the course of business by any of the defendants on trial. It was a statement, however, of one who was performing services in the furtherance of the conspiracy, and it concerned the method of operation of the defendants.

Error is assigned to what is said to have been the refusal of the trial court to permit full and free opportunity to inspect the volume of memoranda of conversations overheard by witnesses listening in on telephone wires. We search the record in vain for evidence of error under this assignment. The defendants requested an order of the court to turn over to them the book of memoranda containing 700 pages, that they might take it into their possession and inspect it overnight, for purposes of cross-examination on the following day. Again they requested that those portions of the book which had been used to refresh the recollection of the witness Whitney be in some way separated from the remainder of the book and be surrendered to them for inspection. These requests were denied, but there was no denial of opportunity to inspect the volume.

For the purpose of impeaching the witness Corwin, the defendants made application for permission to make an experimental test in open court, or elsewhere, in the presence of court and jury, of Corwin's ability to identify voices heard over the telephone. The denial of the application is assigned as error, but we think it was within the court's discretion. 22 C. J. 756. The request for leave to make the experiment was not an offer to show as a scientific fact the impossibility of recognizing voices in conversations over the telephone, but was a demand that the witness be required to subject himself to a test of his ability to recognize voices, under conditions to be created which, in the very nature of things, could not be identical with conditions under which he had heard the voices to which he testified. Such an experiment would not tend to enlighten a jury, and could only tend to confusion by the creation of collateral issues. It is common knowledge that the recognition of voices heard over telephone wires depends upon many and diverse conditions. In such an experiment as was requested, there could be no certainty of obtaining the conditions under which the witness had listened to conversations, and in any such experiment recognition of the voices would largely depend on the tone force and projective quality of the speaker's voice, the strength of the electric current, and the absence of disturbing sounds. What was said in United States v. Ball, 163 U. S. 662, 673, 16 S. Ct. 1192, 1196 (41 L. Ed. 300), is applicable here: "The granting or refusal of such a request, first made in the midst of the trial, was clearly within the discretion of the court."

It is assigned as error that the court restricted the cross-examination of the witness Fryant, and excluded the defendants' offer to impeach his testimony. Behneman had to some extent been associated with Fryant, a prohibition officer, in listening in on the wires. He subsequently left that service and associated himself with the defense, and he told Olmstead that he had been listening in on his wires, and later he appeared as a witness for the defendants. Fryant had testified as a witness for the prosecution. Behneman's testimony contradicted Fryant's in some particulars. Fryant was called in rebuttal and contradicted several of the items of Behneman's testimony. On his cross-examination, to impeach his rebutting testimony, Fryant was shown three of the defendant's exhibits, and he denied that certain words thereon were written by him. Defendants' counsel then asked him to write those words. This was objected to as not proper cross-examination, and as impeaching an impeaching witness. The same objection was made to the attempted cross-examination of Fryant on Exhibits B-1 to B-27. Those exhibits had not been received in evidence. They had been offered for identification, but excluded by the court as incompetent. We find no error in the rulings. They were clearly sustainable on both grounds of objection.

Under our decision in Rendleman v. United States, 18 F.(2d) 27, the wife of a defendant in the present case was competent to testify as a witness in his behalf. The question arises whether it was reversible error to exclude the testimony of Green's wife, which was offered to show that she, her husband, and the defendant Wm. P. Smith were at Portland, Or., in 1924, from July 7 to September 9, inclusive, or the testimony of Harvey's wife, offered on behalf of the defendants Harvey and Thompson, to show that in 1924, continuously from July 3 to ...

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    ...called it a delivery tag. 9 Kettenbach v. United States, 9 Cir., 202 F. 377; Farley v. United States, 9 Cir., 269 F. 721; Green v. United States, 9 Cir., 19 F.2d 850; Aplin v. United States, 9 Cir., 41 F.2d 495. 10 Dean Heuck called it a delivery bill 11 See cases cited in footnote 9. 12 St......
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    • May 9, 1927
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