Harper v. United States, 13157.

• Citation: 99 US App. DC 324,239 F.2d 945
• Decision Date: 21 November 1956
• Docket Number: No. 13157.,13157.
• Parties: Alva B. HARPER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

99 US App. DC 324, 239 F.2d 945 (1956)

Alva B. HARPER, Appellant, v. UNITED STATES of America, Appellee.

No. 13157.

United States Court of Appeals District of Columbia Circuit.

Argued September 19, 1956.

Decided November 21, 1956.

Mr. William S. Thompson and Joseph P. McCormick, Washington, D. C., for appellant.

Mr. Richard J. Snider, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll, and Victor Caputy, Asst. U. S. Attys., were on the brief for appellee. Mr. Nathan J. Paulson, Asst. U. S. Atty., also entered an appearance for appellee.

Before PRETTYMAN, BAZELON and DANAHER, Circuit Judges.

BAZELON, Circuit Judge.

Appellant, a physician, was found guilty by a jury of producing an abortion in violation of D.C.Code, § 22-201 (Supp. III, 1951).

When appellant took the stand in his defense, the trial judge allowed the prosecutor to cross-examine him as to alleged abortions other than that charged in the indictment and, when he denied such other abortions, the trial judge permitted the women upon whom those other abortions had allegedly been performed to take the stand and contradict him. Appellant's principal contention on this appeal is that it was error to receive evidence of offenses not charged in the indictment.

We stated the applicable rule of law as follows in Fairbanks v. United States, 1955, 96 U.S.App.D.C. 345, 347, 226 F.2d 251, 253:

"The general rule is that upon the trial of an accused person the prosecution may not introduce evidence of another offense wholly independent of the one charged. However, there are many well established exceptions to this rule, so numerous that it has been said that it is difficult to determine which is the more extensive, the doctrine or the acknowledged exceptions. This Court has admitted evidence of other criminal acts when those acts (1) are so blended or connected with the one on trial that proof of one incidentally involves the other, (2) they explain the circumstances of the offense charged, or (3) they tend logically to prove any element of that offense. (There are other exceptions to the general rule not here relevant.)"¹

Such a statement of the law — in terms of a general rule and specific exceptions — is convenient. Sometimes, however, it is helpful to analyze the law into its basic elements. Thus analyzed, the rule is that evidence of other offenses is admissible when substantially relevant to the offense charged; inadmissible when its relevance is insignificant; and, in borderline cases, admissible when its relevance outweighs the undue prejudice that may flow from it, but otherwise inadmissible. Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938); Lacy, Admissibility of Evidence of Crimes not Charged in the Indictment, 31 Ore.L.Rev. 267 (1952).

Evidence that the accused has committed another crime may often be said to be relevant to whether he has committed the crime charged, even where the two crimes are of completely different character. On the other hand, evidence of other offenses always carries with it the danger of undue prejudice. Instead of giving the evidence its properly limited probative value, the jury may leap from the fact of commission of one crime to the conclusion of commission of the other. Thus, in a mail fraud case, for example, the jury would be likely to convict the accused simply because he is a murderer, rather than place the fact of the murder on the scales along with all the other evidence to determine whether the fraud charged in the indictment has been committed. Evidence tending to prove merely criminal disposition is excluded because of the likelihood that it would weigh too heavily with the jury. Stone, supra, at 989.

The determination of whether or not a particular piece of evidence is likely to weigh too heavily with the jury necessarily depends upon the judge's view of the proper probative force of the evidence. The purpose for which the evidence is offered is of great concern in this connection, for what is highly probative on the issue of the intent with which an act was done may have negligible value in proving that the act was done. As Professor Wigmore puts it:

"The clue to the difference is best gained by remembering that in the one class of cases the act charged is assumed as done, and the mind asks only for something that will negative innocent intent; and the mere prior occurrence of an act similar in its gross features — i.e. the same doer, and the same sort of act, but not necessarily the same mode of acting

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