Hurst v. United States, 21140.
| Decision Date | 26 October 1964 |
| Docket Number | No. 21140.,21140. |
| Citation | 337 F.2d 678 |
| Parties | Joseph J. HURST, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jesse G. Bowles, Cuthbert, Ga., Bentley H. Chappell, Columbus, Ga., Foley, Chappell, Young, Hollis & Schloth, Columbus, Ga., for appellant.
Floyd M. Buford, U. S. Atty., Gary B. Blasingame, Asst. U. S. Atty., Macon, Ga., for appellee.
Before TUTTLE, Chief Judge, BELL, Circuit Judge, and WHITEHURST, District Judge.
The appellant here complains of his conviction on four counts of an indictment for violating various sections of the Internal Revenue laws relating to non-taxpaid whiskey. The first count was a conspiracy count, whereas the remaining three counts charge substantive offenses against Hurst and other various defendants.
The case against Hurst was made out largely by the testimony of an informer, who had formerly been active in the illegal whiskey business. While the evidence connecting Hurst with the conspiracy and with the substantive counts of the indictment was sufficient to warrant the trial court's submission of the case against the appellant to the jury, it was not strong. This fact emphasizes the importance of our giving careful consideration to the principal argument made on appeal to the effect that the appellant was denied a fair trial because the court permitted the introduction into evidence of eight separate records dealing with prior offenses either charged or proven against him, but which were in no wise connected with the charges for which he was being tried.
This is the way the matter came about: At the conclusion of the informer's testimony, counsel for appellant cross-examined him, and during the cross-examination said: "You knew that Joe Hurst had absolutely no criminal record, didn't you?" To which the witness, Kennington, answered: "I didn't know." Thereupon counsel asked, "Didn't you investigate it?" And Kennington answered, "No, sir, I don't investigate."
On the theory that this statement made by counsel for the appellant in the form of a question, "You knew that Joe Hurst had absolutely no criminal record, didn't you," was tantamount to affirmative evidence or an implication of the fact that Hurst was without a criminal record, cf. Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84; the United States sought to introduce evidence of specific acts of criminal import, to-wit, copies of six indictments, a copy of a sentence, and copy of a plea of guilt. Several of the indictments were nol prossed. Counsel adjourned to the trial judge's chambers for consideration of this proffer of testimony, whereupon, after a long discussion and consideration of the specific items that the Government sought to tender in evidence, the trial court held them all admissible, those which represented indictments, later nol prossed, as well as those indicating convictions or pleas of guilty.
As might be expected, objection was made by the appellant on several grounds. (1) That the defendant had introduced no evidence of his character which this evidence could be used to rebut. (2) That in any event only records of convictions could be used and not indictments that had not proceeded to trial or conviction. (3) That the only use to which this evidence could be put was as a rebuttal to character testimony in favor of the accused.
Upon returning to the courtroom, the trial recommenced and the trial court gave no instructions to the jury as to the purpose for which the eight bits of seriously damaging evidence should be restricted.
To begin with, we should make it plain that the question on cross-examination by appellant's counsel was wrong. In the first place, it was irrelevant to any issue being tried. In the second place, it is always improper to ask a leading question designed to produce an answer which, if given as contemplated, would be false. The contemplated answer here, of course, was that the witness knew of no criminal record against Hurst. It is not farfetched to say that the hoped-for impression to be created in the minds of the jury was that there was in fact no such record against Hurst. While it is true that the witness knew of no such record, it is not...
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