Lovely v. United States, 5843.

• Decision Date: 24 May 1949
• Docket Number: No. 5843.,5843.
• Citation: 175 F.2d 312
• Parties: LOVELY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

175 F.2d 312 (1949)

LOVELY v. UNITED STATES.

No. 5843.

United States Court of Appeals Fourth Circuit.

May 24, 1949.

James F. Dreher and David W. Robinson, Columbia, S. C., for appellant.

Louis M. Shimel, Assistant U. S. Attorney, Charleston, S. C. (Ben Scott Whaley, U. S. Attorney, Charleston, S. C., and Henry H. Edens, Assistant U. S. Attorney, Columbia, S. C., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

William Theodore Lovely (hereinafter called accused) was convicted, at his first trial, of rape committed upon a federal reservation. We set aside the judgment of conviction 4 Cir., 169 F.2d 386, and ordered a new trial. At this second trial accused was again convicted and, upon the jury's verdict of guilty without capital punishment, he was sentenced to life imprisonment. In this appeal by accused, his counsel have set out eight alleged errors in the trial below as grounds for reversal. We proceed to discuss these contentions seriatim.

First, it is alleged that the District Court erred in admitting, on the cross-examination of accused, evidence of his illicit sexual relations with a woman other than the prosecutrix. Accused had not put his character in evidence. The holdings of the courts in this field are many and varied; the same is true of statements by text-writers. See, the previous opinion of Circuit Judge Parker in this case, Lovely v. United States, 4 Cir, 169 F.2d 386; Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213; Greer v. United States, 245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469; Bird v. United States, 180 U.S. 356, 21 S.Ct. 403, 45 L.Ed. 570; Hall v. United States, 150 U.S. 76, 14 S.Ct. 22, 37 L.Ed. 1003; Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077. Compare, Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054; Tla-koo-yel-lee v. United States, 167 U.S. 274, 17 S.Ct. 855, 42 L.Ed. 166; Viereck v. United States, 78 U.S.App. D.C. 279, 139 F.2d 847, 851, certiorari denied 321 U.S. 794, 64 S.Ct. 787, 88 L.Ed. 1083; Simon v. United States, 4 Cir., 123 F.2d 80, 85, certiorari denied 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555; United States v. Waldon, 7 Cir., 114 F.2d 982, 984, certiorari denied 312 U.S. 681, 61 S.Ct. 549, 85 L.Ed. 1119; Christopoulo v. United States, 4 Cir., 230 F. 788; Fields v. United States, 4 Cir., 221 F. 242, 245, certiorari denied 238 U.S. 640, 35 S.Ct. 941, 59 L.Ed. 1501. See, also, Wigmore on Evidence, 3d Ed., §§ 891, 981, 982, 2276, 2277; Underhill, Criminal Evidence, 4th Ed., §§ 139, 140.

We are inclined to think that this evidence was (at the time it was introduced) inadmissible. But we do not think it necessary to pass definitely on this question; for we do not regard the error (if any) as prejudicial to accused or as warrant for a reversal. Accused introduced, as a witness on his behalf, his partner in this illicit relationship and she testified in detail concerning it. When she testified for accused, it was proper to delve into this relationship, which had relevancy in determining her bias or prejudice. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; Tla-koo-yel-lee v. United States, 167 U.S. 274, 17 S.Ct. 855, 42 L.Ed. 166; United States v. Edmonds, D.C., 63 F.Supp. 968. Her name had been furnished, too, as a witness for accused, when (at the opening of the trial) he made his motion (sustained by the District Court) that the witnesses be segregated. Moreover, no objection to this phase of accused's cross-examination was made by counsel for accused, though accused himself stated, when questioned about this relationship, that his answer would be incriminating and that he did not wish to answer. At the first trial, accused had volunteered information as to his intimate relationship with this witness in explaining that the blood on his clothing was not that of the prosecutrix.

Accused next objects to a question put to this guilty partner of his on cross-examination. She was asked if she had not told the prosecutrix "that Lieutenant Lovely had hurt other people." Her answer was a prompt denial that she had made any such statement. The question had relevancy in connection with other parts of her testimony as testing the credibility of the witness. No objection to this testimony was made by accused's counsel and we cannot go along with the suggestion of accused's counsel that here was "laid against the appellant an accusation of similar rapes upon other girls." So again we find here no reversible error.

We come next to the contention that the District Court erred in permitting accused to be harassed and demeaned on his cross-examination. See, Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; Mannix v. United States, 4 Cir., 140 F.2d 250; Sutherland v. United States, 4 Cir., 92 F.2d 305. The latitude to be allowed on the cross-examination of an accused, when he voluntarily takes the stand on his own behalf, especially in a rape case, must largely be left to the trial judge; though there are, of course, certain limits beyond which the cross-examiner must not go. See the Alford and Mannix cases just cited above. And here the nature of much of the unsavory testimony given by the accused on direct examination laid him open, with all propriety, to a cross-examination that could be vigorous and detailed. Again, no objection to this cross-examination was made by accused's counsel. Had such a suggestion been made to the District Judge, he well might have cautioned the perhaps over-zealous counsel for the United States but no such suggestion was made. So, as we view this cross-examination, limned against the whole background of the case, we find therein no basis for reversing the judgment below.

We find no merit in accused's next contention:

"Although the Court held as a matter of law that the Appellant had the right to show previous sexual experiences of the prosecutrix and her general unchaste character for the purpose of attacking her credibility and to show the probability of her consent to the intercourse with Appellant, it so limited Appellant's proof in these connections as to practically deprive him of this ground of defense."

The District Judge allowed the witnesses Oakland Cox, E. L. Cox, Mrs. Poston and Miss Avant to go just as far as relevancy would permit. Their testimony ranged far and wide. Accused offered no positive evidence of any prior sexual misconduct on the part of the prosecutrix; he attempted to supply this want of proof by means which the Trial Judge classed as "a smear campaign by insinuations." Accused has here no proper ground for complaint, for any limits placed on the evidence of these witnesses by the District Judge were, under the circumstances, more than amply warranted and reasonable.

More serious is the objection that, in his charge to the jury, the District Judge erred in marshalling the evidence to the prejudice of accused. Thus we are told by counsel for the accused:

"In the marshalling of the evidence in this case the Court reviewed the Government's evidence in much detail, but touched only the high spots of the testimony offered on behalf of the defendant. Several important features of the appellant's case were not mentioned by the Court in its reference to the testimony adduced."

Accused complains especially that the Court "did not comment upon the fact that the prosecutrix made no report to any law enforcement officer until two days after the alleged rape." It is true that no mention was made of this fact in the Court's general reference to the evidence adduced. But no less than four of the specific instructions, given by the Court at the request of accused, dealt with the significance of the prosecutrix' failure to immediately report the alleged outrage. The point was fully and fairly covered.

Much the same may be said of the accused's objection that "the Court made no direct reference in discussing the facts to the defendant's very strong evidence to the effect that the prosecutrix had actually agreed to drop the charges upon the payment to her of $500.00 and was, in fact, the one who suggested the settlement." The jury's attention was certainly called to this evidence by the Court's instruction that any such offer or agreement to settle the case would be no bar to the prosecution but might be considered in connection with the disputed issue of consent before the consummation of the act. And, again, the accused's specific instruction No. 8, covering this point, was given, so far as the record discloses, precisely as requested.

In his general comments on the evidence the Court below reviewed primarily the two divergent theories of the facts asserted by the prosecutrix and the accused. He was not required, and did not attempt, to cite each and every bit of evidence tending to support each of these theories. Moreover, he concluded this portion of his charge by telling the jury:

"You will note that I have expressed no opinion as to the truth or falsity of any of the testimony I have reviewed. That is a matter for the jury to decide as you have been previously told."

The general law on this subject was aptly stated by Chief Justice Hughes in the well known case of Quercia v. United States, 289 U.S. 466, 469-470, 53 S.Ct. 698, 77 L.Ed. 1321:

"In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95, 51 S.Ct. 383, 75 L.Ed. 857. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important, and he may express his opinion upon the facts, provided ...