Lau Lee v. United States, 6645.

• Citation: 67 F.2d 156
• Decision Date: 16 October 1933
• Docket Number: No. 6645.,6645.
• Parties: LAU LEE et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

67 F.2d 156 (1933)

LAU LEE et al. v. UNITED STATES.

No. 6645.

Circuit Court of Appeals, Ninth Circuit.

October 16, 1933.

Fred Patterson, of Honolulu, T. H., and Herbert Chamberlin, of San Francisco, Cal., for appellants.

Sanford B. D. Wood, U. S. Atty., and Willson Carr Moore, Asst. U. S. Atty., both of Honolulu, T. H., and H. H. McPike, U. S. Atty., of San Francisco, Cal.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

WILBUR, Circuit Judge.

Appellants were convicted on two counts of an indictment filed in the District Court of the United States for the Territory of Hawaii. The first count charged that the appellants conspired with certain other defendants named in the indictment to import smoking opium and opium prepared for smoking in violation of section 174, title 21, USCA. The second count charged that the defendants imported from Hongkong into the United States 22,251 ounces of smoking opium and opium prepared for smoking.

The bill of exceptions is contained in the transcript from pages 118 to 233, inclusive. It does not purport to contain all the evidence or all the instructions. The attorneys for the government quote evidence from the "transcript of testimony" taken at the trial, which is not before us, and incorporate the same in their brief by quotation and also by reference. The matters thus referred to are not a part of the record which can be considered by us on appeal, and we are at a loss to understand why counsel have indulged in this course of action. The transcript in this case incorporates many matters which are not included in the bill of exceptions and are not properly a part of the record. We refer to matters appearing between pages 15 and 118 of the printed transcript. This portion of the record purports to contain proceedings had in court, the rulings of the court thereon, and an order allowing an exception thereto. But the formal allowance of exceptions in this fashion is not the equivalent of a bill of exceptions. Consequently, these rulings, except in so far as they are incorporated in the bill of exceptions, and some of them are so incorporated, cannot be considered by us. (See rule 14 as explained in O'Brien's Manual of Fed. App. Proc.)

The appellants claim that they "were denied a fair trial by the remarks and conduct of the court in the presence of the jury in accusing defendants' counsel with intentionally misleading the jury, with being untruthful, and with not being straightforward and honest with the jury." The attorney for the defendants, during his argument to the jury, insisted that there was no evidence that the defendant Lau Lee signed a certain letter purporting to have been written by him containing incriminating matter which had been received in evidence. The witness Chin How testified that Lau Lee signed the letter, but he also testified, when asked whether or not he knew Lau Lee's signature, "No, I don't know, but I asked someone to read it for me." During the closing argument of Mr. Moore for the government he stated, "Then he Mr. Patterson, defendants' attorney makes the point that there was no expert to show here that this is Lau Lee's signature. He meaning Chin How pointed it out." Whereupon he was interrupted by attorney for the defendants with the statement: "I don't think there is any evidence to support that." To this the court replied:

"Your statement here before is incorrect, and was not in evidence.

"Mr. Patterson. May I have an exception, your Honor?

"The Court. Exception noted.

"Mr. Moore. As a matter of fact, he did recognize the signature the second time, Mr. Patterson.

"The Court. Your statement is not correct (interrupting).

"Mr. Patterson. I am positive —

"The Court. May I continue, Mr. Patterson?

"Mr. Patterson. May I explain?

"The Court. — before I am interrupted. In your argument to the jury you made the statement time and time again there was not a scintilla of evidence going to show that Lau Lee put it on there, and that they brought in no evidence on that. You have practiced long enough in this court to know you are not to make statements that are untrue, and which should be known to be absolutely untrue by you, Mr. Patterson. I refer —

"Mr. Patterson. I take issue with the Court."

After this colloquy the reporter read his notes to the attorneys during a recess, and thereafter when the court reconvened the following colloquy occurred:

"Mr. Patterson. When this man was on the stand his attention was called to a letter and he said: `Did you receive this letter,' and he said `Yes.' `Are you familiar with Lau Lee's signature,' and he said `Yes,' and the letter was shown him, this letter here was shown him, and he says, `Do you know this signature?' and the witness on the stand said, `No, I do not,' or words to that effect, but, he said, `Someone read it to me'; then he said after somebody had read it to him then he was able to say this is the letter and this is the man's signature.

"The Court. He did not make that statement, Mr. Patterson, that after somebody read it to him that he was able to tell whose it was.

"Mr. Patterson. But immediately before that he testified: `I don't know his signature but somebody read it to him,' and then after it was read to him he knew it was his signature.

"The Court. That is not what he said, Mr. Patterson. What I am getting at is this, if you had gone with that to the jury in a straightforward, honest manner it would have been practically all right, but you concealed what he had given in there.

"Mr. Patterson. Is your Honor through?

"The Court. Not quite.

"Mr. Patterson. Your Honor hesitated. I thought you were through.

"The Court. You misled the jury if any person ever attempted to mislead a jury, by stating that there was not a particle or iota of evidence to show Lau Lee wrote it. If you had asked for the evidence, — if you had quoted the evidence as it was, — I sat here and I saw him, when he was asked about the signature, point to Lau Lee's signature and say `That is it' or words to that effect, just as Mr. Moore recited it.

"Mr. Patterson. May I have an exception to your Honor's ruling?

"The Court. Exception noted.

"Mr. Patterson. And may I explain the thing as I saw it? Will your Honor give me an opportunity to explain. I didn't have a chance to finish.

"The Court. Yes.

"Mr. Patterson. It is my contention, — I say in all sincerity I have never tried to mislead this jury or any other jury in any court of law, — I say in all sincerity that on this record, when you show a man a letter and he says I do not know until somebody has read it to me whether this is his signature or not, and then he says after it was read to me that this is his signature, it is the same...