Luse v. United States

• Decision Date: 06 April 1931
• Docket Number: No. 6348.,6348.
• Citation: 49 F.2d 241
• Parties: LUSE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

49 F.2d 241 (1931)

LUSE v. UNITED STATES.^*

No. 6348.

Circuit Court of Appeals, Ninth Circuit.

April 6, 1931.

Paul W. Schenck and John M. Bowen, both of Los Angeles, Cal., for appellant.

Samuel W. McNabb, U. S. Atty., and Gwyn S. Redwine and P. V. Davis, Asst. U. S. Attys., all of Los Angeles, Cal.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

WILBUR, Circuit Judge.

Appellant was convicted on two counts of an indictment charging him with having committed perjury upon the trial of himself and four others for a violation of section 215 of the Federal Penal Code (18 USCA § 338) relating to schemes to defraud by the use of the mails. The first count upon which appellant was convicted charged him with having falsely testified that he had a conversation with one Blaylock, in Los Angeles, Cal., on January 6, 1930, concerning a deal between appellant and one Yardley. The second count related to testimony concerning a transaction between the accused and one Edna Abbott. This count of the indictment was dismissed by the district attorney after the court had sustained appellant's motion for a directed verdict. The third count charged that appellant committed perjury in denying a certain conversation with E. J. Kelly concerning a profit which would be realized from a proposed exchange of Kelly's residence in Inglewood, Cal., for an oil lease on Texas property. Appellant was sentenced to imprisonment for five years on each count, sentences to run concurrently, and to pay a fine of $1,000 on each of said counts.

The principal point involved in the evidence and allegations concerning the charge of perjury in the first count relate to the whereabouts of W. T. Blaylock. The appellant having testified in the mail fraud case that he had the conversation with Blaylock in Los Angeles concerning a transaction with Yardley, one of the alleged victims of the scheme to defraud, the Government claims that on the 6th day of January, 1930, the day upon which the conversation is alleged to have occurred in Los Angeles, Blaylock was actually in the town of Italy, Tex., and that he had been there continuously for nearly three years, and that he remained there until some time in February, when he did go to Los Angeles. In support of the government's claim that Blaylock was in Italy, Tex., on the 6th day of January, 1930, ten witnesses were introduced who corroborated Blaylock's testimony that he was in Texas on that date. As further corroborative evidence, the government, in its case in chief, introduced two additional lines of evidence, to which appellant interposed seasonable and appropriate objections. The first item objected to was a contract purporting on its face to have been signed in Los Angeles on the 6th day of January by Blaylock. This instrument had attached thereto a certificate of acknowledgment certifying that it was acknowledged before a notary on that day in Los Angeles, Cal. The tendency of this instrument was to rebut the government's contention if it was admissible at all, a question which we will presently consider. To overcome this evidence, which at best was anticipatory of appellant's defense, evidence was introduced and handwriting experts were called in an attempt to establish that the signature to the document was in the simulated handwriting of W. T. Blaylock and that this simulation had been accomplished by means of tracing a genuine signature of Blaylock's. This evidence might have been proper if the defendant had first offered the document to prove the presence of Blaylock in Los Angeles on the 6th day of January, and if such document had been received either with or without objection on the part of the government, but to introduce such evidence in the first instance could hardly avoid impressing the jury with the fact that there was something wrongful in the tracing of the signature of Blaylock, whereas the theory of the government was in this case, as well as in the mail fraud case, that Blaylock was a mere dummy, and that appellant had used his name constantly and repeatedly and was authorized so to do by Blaylock, and that Blaylock had no interest whatever in the transactions which were carried on in his name. In this connection it may be stated that in the charge to the jury the simulation of handwriting was referred to as forgery, although upon objection the word "forgery" was withdrawn.

In rebuttal the appellant testified that Blaylock was actually in Los Angeles on the 6th of January as he had sworn on the previous trial for fraud, and he offered the testimony of the notary public and of another witness in his office who corroborated that statement. We thus have ten witnesses for the prosecution and three for the defense in direct conflict as to the whereabouts of Blaylock on the 6th of January. The government, however, not content with the overwhelming number of witnesses it had produced to establish the presence of Blaylock in Texas, including the testimony of Blaylock's wife and mother, who had been constantly aware of his whereabouts during the entire period, introduced in chief by way of further corroboration certain checks drawn by Blaylock on the First National Bank of Italy, Tex., a promissory note signed by him on or about that date, together with about 100 checks drawn upon that bank during the three-year period preceding and immediately succeeding the 6th day of January, 1930. In addition to the testimony of Blaylock that these several checks were drawn on the date specified, we have the physical fact that the checks were canceled by perforation by the bank upon which they were drawn sufficiently near the date of the check to make it reasonably certain that the checks were not signed as far away from the bank which had paid them as Los Angeles, Cal. The jury must have been impressed with the large volume of evidence of this character, and particularly with the instruments signed by Blaylock at Italy, Tex., on January 6, 1930. We cannot see that any of this evidence was properly admissible. The various documents referred to so far as this case is concerned were mere memoranda which could be referred to and which were referred to by the witnesses concerned for the purpose of refreshing their memory. It is fundamental that such memoranda are not admissible unless demanded by opposing counsel, in which event, of course, the purpose of the memoranda is to discredit rather than corroborate the witness's testimony. At first blush we are impressed with the possibility that there was some justification for the introduction of checks which were paid so soon after their date as to show that the checks were not signed in Los Angeles on the date specified, but on reflection it is clear that the probative effect of such evidence would depend upon the testimony of the witness that he signed the document on the date it bears; therefore the checks did not tend to corroborate, but their weight and effect depended upon the evidence of witnesses whose veracity was involved in the case. Counsel for the government seem to contend that in a perjury case, where conviction cannot be had on the uncorroborated testimony of a single witness, that such evidence is admissible by way of corroboration where it would not be in another case where such corroboration is not required by statute. This view assumes that such evidence is corroboration, and, if it is corroboration in a case of perjury, it would be corroboration in any other case, and it is desirable to corroborate the testimony of a witness in every case where his testimony is disputed.

The government claims that, if there is any error in the introduction of the contract dated January 6th, purporting to have been signed at Los Angeles by Blaylock on that day, such error was cured by the subsequent testimony of the appellant and his witnesses that the document was so signed on that date. It is true that this testimony would have made the evidence of the government in that regard proper rebuttal testimony, but it does not follow that the error in admitting it in chief was not...