Harrell v. United States

• Decision Date: 25 March 1955
• Docket Number: No. 15171.,15171.
• Citation: 220 F.2d 516
• Parties: Willie Ray HARRELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

220 F.2d 516 (1955)

Willie Ray HARRELL, Appellant, v. UNITED STATES of America, Appellee.

No. 15171.

United States Court of Appeals, Fifth Circuit.

March 25, 1955.

Paul S. Jones, Grove Hill, Ala., Harry Seale, Mobile, Ala., for appellant.

Percy C. Fountain, U. S. Atty., Mobile, Ala., for appellee.

Before HOLMES and RIVES, Circuit Judges, and WRIGHT, District Judge.

WRIGHT, District Judge.

Appellant was convicted on each of three counts in an indictment charging perjury.¹ He asks for reversal of that conviction on the ground that certain instructions given to the jury by the trial court were improper, that the trial court determined the materiality of the alleged perjured testimony itself and refused to submit that issue to the jury, and that the admission, over objection, of certain testimony taken at the former trial in which the alleged perjury occurred was improper and prejudicial. For the reasons hereinafter assigned, the points raised by the appellant are without merit and the conviction must be affirmed.

Appellant was chief deputy sheriff of Clarke County, Alabama. Jenkins Hill, the sheriff of Clarke County, one Sam Deas and one Pat Rone, not law enforcement officers, were charged with conspiracy to violate certain laws of the United States pertaining to the unlawful manufacture and sale of distilled spirits. The case against these defendants was tried twice, the first ending in a mistrial, the second in an acquittal of all three. The perjury charge here arose out of Harrell's testimony in the second trial. The perjured testimony consisted of Harrell's denying that one of the defendants in the former case, Pat Rone, had operated the motorboat which brought him, Harrell, and a deputy sheriff from Monroe County, Alabama, to a houseboat in the Tombigbee River, at which houseboat one Carlos Blackwell, a witness for the Government in both of the liquor trials, was arrested.

In the first liquor trial, the Government relied heavily on Blackwell's testimony for conviction. In fact, Blackwell, if his testimony is to be believed, definitely connected the defendants, Sheriff Hill, Deas and Rone, in a conspiracy to violate the liquor laws. Shortly before the second trial, Hill received information from Rone that a still, which he thought belonged to Blackwell, was operating on a certain houseboat in the Tombigbee River, which separates Clarke County on the west from Washington County. Hill and Rone made a trip to this houseboat and determined that there was in fact a still operating there. The next day Hill made arrangements for Pat Rone to take the deputy sheriff of Monroe County, which adjoins Clarke County on the east, and the appellant, Harrell, chief deputy sheriff of Clarke County, to the houseboat to lie in wait for the operator of the still to come aboard. Harrell testified that while so waiting, Carlos Blackwell came aboard the houseboat and was placed under arrest for operating the still. Blackwell, in his testimony at the second liquor trial, admitted that he was arrested in the vicinity of the houseboat but emphatically denied his connection with the illicit still. He testified that it was his practice to hunt deer in the vicinity in which he was arrested and that at the time of his arrest he had a deer on the bank of the river.

Harrell testified as a witness for the defendants in the second liquor trial. After testifying as to the arrest of Blackwell, he then testified that Blackwell's reputation for veracity was bad and that he should not be believed under oath. On cross-examination, among others, he was asked these three questions: "Now, as a matter of fact, Mr. Harrell, the defendant Pat Rone carried you all down there in a boat, when you went to that houseboat, didn't he?" "Will you tell us, under oath, that Mr. Pat Rone was not in the boat with you?" and "Had you ever been to that houseboat in company with Pat Rone?" To each of these questions, Harrell replied in the negative and each of his answers is the basis for a count in the indictment against him.

The record shows that the trial judge charged the jury that the answers to the questions given by Harrell were material to the issue on trial. Appellant takes exception to this instruction, both for the reason that it is within the province of the jury to determine the materiality of the alleged perjured testimony, and for the further reason that the alleged perjured testimony was not in fact material to the issue then on trial.

Appellant's contention that the issue of materiality is for the jury is clearly without merit. Whatever may be the rule in state courts, it is clear that in perjury trials conducted in federal courts, the issue of materiality of the alleged perjured is for the court and not the jury. Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; United States v. Marachowsky, 7 Cir., 201 F.2d 5; United States v. Moran, 2 Cir., 194 F.2d 623, certiorari denied 343 U.S. 965, 72 S.Ct. 1058, 96 L.Ed. 1362; Travis v. United States, 10 Cir., 123 F. 2d 268; Blackmon v. United States, 5 Cir., 108 F.2d 572; United States v. Slutzky, 3 Cir., 79 F.2d 504; Carroll v. United States, 2 Cir., 16 F.2d 951.

Nor is appellant's contention that the testimony in question was not in fact material meritorious. Appellant contends that whether or not Pat Rone operated the motorboat which brought Harrell and the deputy from the adjoining county to the houseboat where Blackwell was arrested can have no possible bearing on whether or not Sheriff Hill and his codefendants were guilty of a liquor violation of their own. It is true that Harrell's testimony in no way relates directly to the guilt or innocence of Sheriff Hill and his codefendants. But Harrell was not placed on the stand by the defendants to testify regarding the basic issue then in suit. He was placed on the witness stand to discredit the testimony of the chief prosecution witness, Blackwell. He testified that Blackwell's reputation for veracity was bad, that he was not to be believed under oath, that, in fact, Blackwell was a liquor law violator himself in that he was operating an illicit still on the houseboat. Blackwell's testimony on cross-examination, previously given at the same trial, denied any connection whatever with the houseboat, or the still thereon. Consequently, Harrell's testimony definitely focused the attention of the jury on the credibility of Blackwell. It indicated that Blackwell's testimony denying ownership of the still was not to be believed and that his testimony directly connecting Sheriff Hill and his codefendants in a conspiracy to violate the liquor laws should also be discredited.

In appraising Blackwell's testimony respecting the still, the jury had a right to know that Pat Rone, one of the defendants in the liquor case, had told Sheriff Hill about the still and that, on Sheriff Hill's instructions, Rone actually brought Hill's chief deputy, Harrell, and the deputy sheriff from Monroe County to the houseboat to lie in wait for the owner of the still, presumably Blackwell, to come aboard. Harrell's perjury denied the jury that right. It was, therefore, material for "`falsehood in the statement of collateral matter, not of substance, * * * may or may not be criminal, according as they may tend to give weight and force to other and material circumstances, or to give additional credit to the testimony of the witness himself, or of some other witness in the case. And therefore every question upon the cross-examination of a witness is said to be material.'" Blackmon v. United States, 5 Cir., 108 F.2d 572, 574. See also, United States v. Weiler, 3 Cir., 143 F.2d 204; United States v. Slutzky, supra.

Moreover, the perjury of Harrell not only tended to affect the credibility of the witness Blackwell, it also suppressed an item of evidence which bore directly on the guilt or innocence of the defendants then on trial. Taken with Blackwell's denial of ownership of the illicit still, this item of evidence tends to establish that Blackwell's arrest was inspired by the defendant, Rone, acting in co-operation with Sheriff Hill, for the purpose of keeping Blackwell from testifying, or at least embarrassing his testimony, in their trial, then only a few days away. So taken, it would tend to establish a consciousness of guilt on the part of the defendants which, of course, is admissible evidence in any criminal case.

Appellant also complains that Blackwell's testimony in the former trial was read to the jury in his trial, over objection, after a stipulation between counsel that the transcription thereof was accurate. He argues, citing cases,² that he, as the defendant, had the right to be confronted by the witnesses against him and no foundation was laid by the prosecution which would eliminate the necessity for confrontation. In so arguing, appellant misconceives the purpose for which Blackwell's testimony taken at the former trial was admitted in evidence in appellant's trial for perjury. The truth or falsity of Blackwell's testimony was not at issue in Harrell's trial. The fact of his testimony alone was at issue, that is, the fact that he did so testify, and that fact was stipulated when appellant admitted the accuracy of the transcript. It has been held many times that testimony taken during a trial in which perjury is alleged to have been committed is admissible on trial of the perjury charges to show that such testimony was in fact given. And this rule applies not only to the alleged perjury testimony itself, but to all the testimony in the former case which the court trying the perjury charges deems relevant to determine the issue of materiality of the alleged perjured testimony. 70 C.J.S., Perjury, § 57; 41 Am.Jur., Perjury, § 60.

Appellant then makes the point that if the issue of materiality of the alleged perjury is for the court and not for the jury, as we have ruled, it was error for the trial court to allow Blackwell's testimony to be...