Labiosa v. Government of the Canal Zone, 13846.
| Decision Date | 31 July 1952 |
| Docket Number | No. 13846.,13846. |
| Citation | 198 F.2d 282 |
| Parties | LABIOSA v. GOVERNMENT OF THE CANAL ZONE. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Arthur B. Hammond, Jr., Richard B. Montgomery, Jr., Cicero C. Sessions, New Orleans La., Woodrow de Castro, Ancon, Canal Zone, for appellant.
Rowland K. Hazard, U. S. Dist. Atty., Kay P. Fisher, Asst. U. S. Dist. Atty., Ancon, Canal Zone, for appellee.
Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.
Appellant was convicted of the offense of statutory rape of a female thirteen years of age,1 alleged to have been committed July 4th, 1951, and sentenced to imprisonment for a term of ten years. The assignments of error present the contention that the Court committed prejudicial error in permitting the Government's counsel, upon cross-examination, to interrogate the defendant, who testified as a witness in his own behalf, as to conversations with a police officer, one Cato May, in the early part of January, 1951, as is set forth in the margin.2 Immediately before such interrogation this officer had been brought into the courtroom and appellant asked to identify him. Defendant denied that he had ever before seen the officer, or that he had ever conversed with him. The cross-examination was objected to as being without proper foundation. Upon the close of the defendant's evidence, officer May was called to the stand for the purpose of contradicting the testimony of the defendant and establishing that he had made the statements about which counsel had questioned him. Upon objection being indicated, the Court retired to its chambers and heard the proposed testimony of the witness, which was to the effect that such conversations as referred to in the cross-examination of the defendant, and then denied by him, had been had. Upon motion then and there made that the questions and answers listed upon cross-examination of the defendant be stricken, the Court overruled the motion as made too late. Upon objection to the proposed testimony of the officer, counsel for the Government took the position that, since no objection had been made at the time of the cross-examination, if the officer was not permitted to testify the Government would be left in the position "for the jury to infer that we weren't in any position to show that the questions that I propounded to the defendant had a basis in fact," and that the Government should at least be permitted to test the defendant's credibility by putting in the record the testimony of the officer with a proper instruction to the jury that it should be considered only for the purpose of testing the credibility of the defendant. After some discussion, the Court accepted this view to the extent that the District Attorney was permitted to read that portion of the transcript covering defendant's cross-examination and to ask the witness if such a statement was made. Defendant's counsel renewed his objection upon the ground that the ruling of the Court effectuated the same end and purpose of impressing upon the jury evidence of other offenses with women and children other than the prosecutrix. This objection was overruled, the trial was resumed, and, before the jury, the transcript was read and the officer testified that the statements were made to him. Thereupon the Court cautioned the jury that the evidence of this witness should "be considered by you only for the purpose of contradicting the accused if in your mind it does contradict, and the evidence and testimony of this officer shall not be considered by you for any other purpose than that of contradicting the accused, if you believe it does contradict him." The officer-witness further testified that at the time of the conversations the parties were standing under a floodlight and the policeman was dressed in a police uniform.
Upon this appeal it is the contention of the Government that the cross-examination of the defendant and the testimony of the officer were both proper as evidence of acts similar to the one charged which tended to prove the identity of the accused; and that the defendant can not complain of the action of the Court in restricting the use of the testimony to impeachment purposes as this was less damaging than if the purpose had been extended to include identification. Under the testimony of the prosecution there remains no doubt that the offense of statutory rape had been committed. This question was in no way controverted by the defendant. The sole question at issue was whether the defendant was the perpetrator of the offense. This he strenuously denies. The evidence on behalf of the prosecution showed that the victim, while on an errand for her employer, was approached by a man who was driving a gray automobile and asked if she would be interested in a job taking care of a small child. At his invitation she got into the automobile with him to go "to see the work." This meeting took place in Panama City. The car was then driven into the Canal Zone where the driver of the car pointed out to her the house in which she was to be employed. From there he drove to a spot identified as being in an area of the Canal Zone known as the "Three Hundred Area." There he parked the automobile and offered her sixty dollars as a present so that she "might purchase clothes and shoes with it." She refused the money, whereupon he offered her an additional sum which she likewise refused. He then proceeded to have sexual intercourse with her. Upon his completing the act, she alighted from the car and he drove off.
Appellant was identified by the victim as being the man who was driving the gray automobile on the day in question and who perpetrated the assault upon her. His automobile was identified as the one in which the assault took place.
As a witness in his own behalf, appellant denied the charges made against him and denied that he had ever seen the victim before the time of his arrest.
While other contentions are made by the defendant to support...
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United States v. Woods
...3 See also United States v. Machen, 430 F. 2d 523, 526 (7th Cir. 1970) (crisp, concise, and persuasive); Labiosa v. Canal, 198 F.2d 282, 284-285 (4th Cir. 1952) 4 See United States v. Phillips, 401 F.2d 301, 305-306 (7th Cir. 1968); DeVore v. United States, 368 F.2d 396 (9th Cir. 1966). Com......
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...convincing had also turned on an insufficient similarity of the other offenses, rather than insufficient proof. Labiosa v. Government of Canal Zone, 198 F.2d 282 (5th Cir. 1952).9 Defendant Pollard explained this technique as having an accomplice divert a bank teller's attention while he re......
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...must be excluded unless there is a strong showing that the defendant did indeed commit that offense. See, e.g., Labiosa v. Gov't of the Canal Zone, 198 F.2d 282, 285 (CA5, 1952) ('it is required that the proof of such similar offense be clear and that evidence of a vague and uncertain chara......
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Tucker v. State, 4893
...the prosecution must first establish by plain, clear and convincing evidence, that the defendant committed that offense. Labiosa v. Gov't of the Canal Zone, 198 F.2d 282 (Circ. 5, 1952); Gart v. United States, 294 F. 66 (Circ. 8, 1923); Paris v. United States, 260 F. 529 (Circ. 8, 1919); ca......