Kearns v. United States
| Decision Date | 08 October 1928 |
| Docket Number | No. 5449.,5449. |
| Citation | 27 F.2d 854 |
| Parties | KEARNS et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John F. Dore and F. C. Reagan, both of Seattle, Wash., for plaintiffs in error.
Thos. P. Revelle, U. S. Atty., and Paul D. Coles and Anthony Savage, Asst. U. S. Attys., all of Seattle, Wash.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
This is a writ of error to review a judgment of conviction under an indictment charging a conspiracy to violate the National Prohibition Act (27 USCA). The assignments of error are based on instructions of the court, on refusals to instruct as requested, and on misconduct of the attorney for the government in his argument to the jury. The first instruction to which our attention is directed is an instruction defining a reasonable doubt, the second relates to the impeachment of a certain witness, and the third limited the consideration of certain testimony to the question of the credibility of a witness. One of the requests refused was an instruction as to the consideration to be given testimony relating to the general reputation of some of the parties charged, and the two other requests refused were cautionary instructions as to the testimony of accomplices. The remaining assignment is based on the charge of misconduct of counsel.
A number of the questions thus presented are not properly before us for review. The only exceptions taken to the charge were, first, a general exception to the instruction defining a reasonable doubt; and, second, an exception to the instruction that the credibility of a witness might be affected by his conviction of a misdemeanor. There was no exception to the instruction bearing upon the question of impeachment of one of the witnesses for the plaintiffs in error, and, in the consideration of the case we must therefore limit ourselves to the questions properly before us.
Counsel earnestly insists that the instruction defining a reasonable doubt was condemned by this court in Arine v. U. S., 10 F.(2d) 778, but such is not the case. The only definition of reasonable doubt found in that case was, "A persistent judgment to a very high degree of probability that the defendant is guilty as charged," while here the instruction goes far beyond that. In fact, the instructions in the two cases have little in common, aside from the use of the expression, "a persistent judgment to a very high degree of probability," found in each. Here the court instructed the jury at length that there was a reasonable doubt, unless from the evidence the jury formed and had an abiding conviction to a moral certainty that the defendants were guilty, that an abiding conviction is a persistent judgment, and that you can confidently act upon it in the gravest affairs of life; that in any case proof can only be made to some degree of probability, but in criminal cases the proof of guilt must be to that very high degree of probability that inspires a persistent judgment that the defendant is guilty as charged; that such high degree of probability must be based upon facts and circumstances in evidence, and upon reasons found in the evidence, and not at all upon conjecture, speculation, or the doctrine of chances; that if the jury had an abiding conviction, that is to say, a persistent judgment to a moral certainty, that the defendants were guilty as charged, they had no reasonable doubt and should convict accordingly; that the jury might have doubt of the guilt of the defendants, but it would nevertheless be their duty to convict unless their judgment approved such doubt as a reasonable one. It will thus be seen that the court defined a reasonable doubt in different ways, many of which, at least, have met with universal approval. The court treated the different definitions given as synonymous, and whether they were or not we need not inquire, because we are convinced that the jury was not and could not be misled. Furthermore, the instruction contained many propositions of law, and a general...
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