Henderson v. United States

Decision Date11 January 1955
Docket NumberNo. 12113.,12113.
Citation218 F.2d 14,50 ALR 2d 754
PartiesJ. Stacey HENDERSON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

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C. P. J. Mooney, Memphis, Tenn., Eugene P. Boyd, Memphis, Tenn., on the brief, for appellant.

Robert E. Joyner, Memphis, Tenn., Millsaps Fitzhugh, Edward N. Vaden, Memphis, Tenn., Warren Olney, III, Washington, D. C., on the brief, for appellee.

Before SIMONS, Chief Judge, and McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

In a previous trial, appellant was found guilty by a jury under an indictment charging violation of the Mail Fraud Statute, § 1341, Title 18, U.S. Code. On appeal the judgment was reversed because of the admission of evidence which the Court considered incompetent and prejudicial. Henderson v. United States, 6 Cir., 202 F.2d 400, rehearing denied 6 Cir., 204 F.2d 126. On the retrial, in which the evidence held incompetent was not offered, appellant was again found guilty by a jury and received a sentence of five years imprisonment and a $1,000 fine, from which judgment this appeal was taken.

The facts are fully stated in the opinion on the first appeal. In brief, the Government charged appellant with a scheme to defraud of the following nature: Between June 9, 1948 and September 6, 1950, appellant, with some unfavorable experience in the business and without funds, came to Memphis, Tennessee, for the purpose of promoting the drilling of exploratory wells for oil and gas on two adjoining oil and gas leases in Caddo Parish, Louisiana, comprising 33.45 acres and 5.13 acres respectively. These tracts were part of a larger tract of 245 acres, upon which the Gulf Refining Company had drilled numerous wells beginning about 1908. These wells were pumped out and thereafter abandoned by 1914. The larger tract, for which appellant paid approximately $500.00, was divided into fractional undivided interests of 1/32nd each, which were sold to the public in the Memphis, Tennessee area at a $1,000 per unit. Two wells were drilled on this tract. Oil was struck in the second drilling but quickly decreased in volume, yielding approximately 100 barrels of commercial oil, following which operations on the tract were abandoned. The smaller tract, for which no consideration was paid by appellant, was divided into fractional undivided interests of 1/64th each, which were sold to the public in the Memphis, Tennessee area at a $1,000 per unit. The drilling on the second tract produced a dry hole, following which Henderson left Memphis. The indictment charged false representations by appellant in making the sales, and specifically alleged the mailing of a $500 check to appellant by Keller, a purchaser of a fractional interest in the second tract.

Appellant contends on this appeal, as he did on the first appeal, that the evidence was insufficient to take the case to the jury and that the trial judge erred in overruling his motions for a judgment of acquittal. On the former appeal, we were of the opinion that the evidence therein reviewed sustained the action of the trial judge and supported the verdict. That ruling constitutes the law of the case. Although an Appellate Court, upon a second review, has the abstract power to reach a result inconsistent with its decision upon the first review of the same case, it is a power to be exercised very sparingly, and only under extraordinary conditions. General American Life Ins. Co. v. Anderson, 6 Cir., 156 F.2d 615, 618-619. On a question such as is involved in this phase of the case, we adhere to our previous ruling unless there is a material difference in the evidence offered by the Government in the two trials.

All of the witnesses who testified for the Government in the first trial testified again in the second trial, with the exception of two. One of those who did not testify on the second trial was a co-defendant, Rout, who testified in the first trial about certain statements which appellant made to him which bore on the issue of fraudulent intent. Our previous opinion referred to that testimony as part of the evidence justifying the submission of the case to the jury. Appellant claims its absence in the second trial is sufficient to change the ruling. Page v. Arkansas Natural Gas Corporation, 8 Cir., 53 F.2d 27, 31, affirmed 286 U.S. 269, 52 S.Ct. 507, 76 L.Ed. 1096. We do not agree. The present record again includes evidence of not only misrepresentations of material facts, referred to in the first opinion, but also representations as to value and soundness of the leases being explored that "go so far beyond the proper limits of the enthusiasm of the normal salesman, or the mistaken judgment of the honest man, as to impress them with the badge or mark of fraud." Henderson v. United States, supra, 202 F.2d at page 404. Also to be noted, not previously referred to, is the testimony of Tell T. White, expert witness for the Government, to the effect that the history of the prior drillings and the abandonment of the leases, furnished no basis for any reasonable expectation on the part of appellant of bringing oil in on the leases in commercial quantities.

Appellant complains of the change in testimony on the part of some of the Government witnesses since the first trial. In the main, the changes made a stronger case against the appellant. The inconsistencies, if such they were, were fully developed by appellant on cross-examination, and presented a question of credibility for the jury. Butzman v. United States, 6 Cir., 205 F. 2d 343, 349, certiorari denied 346 U.S. 828, 74 S.Ct. 50.

Appellant contends that the District Judge erred in permitting Mrs. Everlina B. Davis, one of the purchasers, to testify without personally determining her mental competency. Counsel stated to the Court that he had been advised that she had been taking shock treatments at a sanitarium for a mental disorder. Following some discussion of the matter between the Court and counsel, which disclosed that counsel had no personal knowledge in the matter, the Court requested the Assistant District Attorney to talk to her outside of the court room. He did so and reported that about a year or so before, she was involved in a bad automobile accident and they had given her shock treatments because of her worry about her son, who received a bad head injury in the accident, but that she was in full possession of her faculties. Although appellant's counsel requested the Court to make a personal examination of Mrs. Davis's mental competency, which was not done, and to which action he excepted, he offered no evidence or indicated he had any to offer, that would tend to discredit this report to the Court. He was offered the opportunity of talking to the witness himself, but did not do so. Upon becoming a witness, Mrs. Davis testified that she was a graduate of the University of Tennessee, was employed by the Mid-South Plumbing and Heating Company in Memphis in doing estimating work, for which firm she had worked for more than nine years, and that she had returned to work immediately after the accident in order to keep busy. Her testimony, both on direct and cross examination, was responsive and clear, and on this review gives no indication of mental incompetency.

The question of the competency of a witness is for the Court, not the jury. If the competency of a witness is challenged before testifying, it is the duty of the Court to make such examination as will satisfy it of the competency or incompetency of the witness. The form of the examination rests in the discretion of the Court. It is the better practice for the trial judge to either question the witness himself or to be present when the examination is conducted by counsel, and to rule on the basis of the evidence so heard. However, when a mature person of normal appearance and demeanor is offered as a witness, he is presumed to be a competent witness and incompetency must be shown by the party objecting to him. Stephan v. United States, 6 Cir., 133 F.2d 87, 95, certiorari denied 318 U.S. 781, 63 S.Ct. 858, 87 L. Ed. 1148, rehearing denied 319 U.S. 783, 63 S.Ct. 1172, 87 L.Ed. 1727. Whether, on the facts developed, the witness is found by the Court competent or incompetent to testify, is the exercise of sound judicial discretion, which finding will be accepted on review in the absence of its abuse. Stephan v. United States, supra; United States v. Tannuzzo, 2 Cir., 174 F. 2d 177, 181. Under the circumstances in this case, we find no prejudicial error in receiving the testimony of Mrs. Davis.

Appellant complains of the refusal of the District Judge to give numerous requested instructions to the jury. It is unnecessary to set them out in detail here. In general they dealt with the necessity of the Government proving that the appellant made the particular representations and promises described in the indictment, with knowledge of their falsity and with the intent to deceive regardless of other facts proven in the case; that unless these particular facts were proven beyond a reasonable doubt, the appellant should be acquitted, even though the Government proved that more than the stated number of units were sold in the first tract, and even though the jury did not approve of the character of the contract between the appellant and the purchaser; that the jury could disregard the testimony of biased witnesses, of witnesses who wilfully gave testimony materially different from that given on the former trial, of witnesses who wilfully testified falsely in a material matter, or of witnesses whom they found to be impeached; that proof of contradictory statements by a witness on a material point may be sufficient to raise a reasonable doubt; and that the appellant was guilty of no fraud in retaining any surplus proceeds for his own use after performing what his contract obligated him to do.

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