Kemp v. Government of Canal Zone

• Citation: 167 F.2d 938
• Decision Date: 15 May 1948
• Docket Number: No. 12134.,12134.
• Parties: KEMP v. GOVERNMENT OF CANAL ZONE.
• Court: U.S. Court of Appeals — Fifth Circuit

167 F.2d 938 (1948)

KEMP v. GOVERNMENT OF CANAL ZONE.

No. 12134.

Circuit Court of Appeals, Fifth Circuit.

May 15, 1948.

Thos. D. McBride and John Patrick Walsh, both of Philadelphia, Pa., and Woodrow de Castro and J. J. McGuigan, both of Ancon, Canal Zone, for appellant.

Daniel E. McGrath, U. S. Atty., of Ancon, Canal Zone, for appellee.

Before SIBLEY, McCORD, and LEE, Circuit Judges.

SIBLEY, Circuit Judge.

Edward Kemp was found guilty on June 20, 1947, of first degree murder of Thomas R. Mora by stabbing him with a knife on May 10, 1947, on shipboard in the Canal Zone; motions to hear evidence in mitigation of sentence and for new trial and in arrest of judgment were overruled; and he was sentenced to be hanged. On this appeal, as in his preliminary hearing and in the trial in the District Court of the Canal Zone, able and experienced counsel have represented him. Many errors have been urged, those meriting notice being discussed below. The evidence was wholly circumstantial, and without serious conflicts. It established with fair certainty that about 4:20 A.M. Mora was stabbed in the chest, his pulmonary artery being severed, while asleep beside the open port hole of his room, the assailant reaching him through the port hole which was sixteen inches in diameter and large enough for a man's head and shoulder and arm to be thrust through it. A bloody three bladed Barlow pocket knife, the large blade three inches long being open, was found lying on the floor of the outer corridor of the ship near the port hole. There were forty-four members of the ship's crew beside Mora. The acute question was who did the deed.

1. Two concededly expert technicians ascertained by blood drawn from Mora's body that his blood was "type A", while Kemp's was found to be of the more common "type O"; and that some fresh blood spots on garments found on Kemp shortly after the stabbing were "type A" blood, while other blood thereon was "type O". Kemp said that all came from his injured thumb and ear. The technicians testify that by well established tests human blood can be readily distinguished from animal blood; and that of human blood four types can be distinguished with accuracy and must be in making all blood transfusions; but no way of identifying the blood of an individual person is known. Appellant argues that there is no precedent in the federal courts where such tests have been admitted as evidence in a criminal case. Accepting the clear and positive and uncontroverted testimony of the technicians, we think these tests are admissible evidence. They do not show that Kemp had the blood of Mora on his shirt, but do show that certain spots were not Kemp's own blood, and were of the same type as Mora's blood. The circumstance was of some weight, to be judged of by the jury.

Kemp took the stand as a witness, and on cross-examination he was asked, over objection, if he had not been previously convicted of two felonies in the State of Washington, and whether they were not robbery and murder, and he answered yes. In answer to his counsel's question he testified that the conviction of murder was in the second degree and he was paroled on that. The court instructed the jury that these convictions could not be taken as any evidence of guilt or innocence upon this trial, but were to be considered only as affecting Kemp's credit as a witness. In this there was no error. When a defendant takes the witness stand in his own defense he is subject to impeachment like any other witness. For this purpose he may be asked about his conviction of felony, when the objection is not made that the record is the best evidence. The convictions here indeed had been admitted of record before the trial for murder was entered upon, for there was an additional charge that involved them as second offenses, but no sentence was imposed for this offense, and it has no place in this record.

3. A preliminary hearing before a magistrate was held two days after the killing, and the ship, which was on the point of sailing for China, was held over, and many of its crew examined as witnesses. Their testimony, and cross-examination in behalf of Kemp, were stenographically reported, and that of nine of them was caused to be transcribed and signed by each witness, under a statement by the district attorney that they would probably not be available at the trial. This was done under the provisions of Canal Zone Code, Title 6, Sect. 14: "In a criminal action the defendant is entitled: a. To a speedy and public trial; b. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel; and c. To produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except: 1. That the deposition of a witness may be read, upon its being satisfactorily shown to the court that he is dead or insane or cannot with due diligence be found within the Canal Zone, in cases wherein the charge has been preliminarily examined before a committing magistrate and the testimony taken down in question and answer form in the presence of the defendant who has either in person or by counsel cross-examined or had an opportunity to cross-examine the witness * * *." It was shown in the trial that these nine witnesses, members of the ship's crew, were not then in the Canal Zone, but had sailed two days after they had testified and were believed to be in Shanghai, China. Thereupon the depositions, testified by the stenographer to be correct, were read without any objection touching confrontation. Counsel for the defendant himself read the cross-examination of each witness. Nor was such objection raised in the motion for new trial, or in the brief filed in this court on Jan. 12, 1948. By a supplemental brief filed April 19, 1948, it was for the first time urged that the right of confrontation guaranteed by the Sixth Amendment of the federal Constitution had been denied, and that the above quoted provision of the Canal Zone Code is unconstitutional and void. Assuming, without deciding, that the Sixth Amendment is of controlling force in the Canal Zone,¹ we hold that the right of confrontation is waivable, and was waived in the trial, and that the statute says no more than is recognized generally in applying the constitutional provision. The witnesses were beyond the process of the court, and the confrontation in the committal trial suffices, especially since the defense introduced the cross-examination of each witness. See 14 Am.Jur., Criminal Law, § 187.

Some leading questions were asked and answered over objection made in the committal hearing. The objections were renewed in the trial. The judge overruled them on the idea that the questions could have been reframed with the witnesses present, but that could not be done with them gone. Objectionable evidence in depositions ought to be ruled out at the trial, and some was ruled out in this case; but permitting leading questions is always in the discretion of the trial judge. Some of the questions objected to were leading, but not on very important points, and the witnesses all seem not to have followed the lead, but to have answered independently....