McKnight v. United States

• Decision Date: 23 October 1899
• Docket Number: 648.
• Citation: 97 F. 208
• Parties: McKNIGHT v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

97 F. 208

McKNIGHT v. UNITED STATES.

No. 648.

United States Court of Appeals, Sixth Circuit.

October 23, 1899

A. E Richards and C. P. Breckinridge, for plaintiff in error.

R. D Hill, for the United States.

Before TAFT, LURTON, and DAY, Circuit Judges.

DAY Circuit Judge.

The plaintiff in error, J. M. McKnight, having been indicted convicted, and sentenced under section 5209 of the Revised Statutes of the United States, making penal certain acts of officers of national banks, prosecutes this writ of error to obtain a reversal of the judgment and sentence of the court below. The indictment contains numerous counts, which were disposed of by demurrer or dismissal, and the case went to trial upon thirty-five counts, upon all of which the jury rendered a verdict of not guilty, except as to three counts being Nos. 39 and 50 of the indictment No. 5,782, and No. 2 of indictment No. 5,783. Upon the trial of the case, numerous exceptions were taken to the rulings of the court upon the admission and rejection of testimony, the charge given, the refusal of charges requested, objection to the indictment by demurrer, motions in arrest, and for a new trial.

1. A principle ground of exception urged by the plaintiff in error arises from exception taken to the remarks of the government's special counsel in his closing address to the jury, and the court's direction to the jury in connection therewith. The comments of counsel and the rulings of the court grew out of the fact that the defendant had introduced no testimony tending to establish his previous good character. So much of the bill of exceptions as contains the history of this part of the case is as follows:

'While said special attorney was making for the government the closing argument in the case, he commented upon the fact that the defendant had not offered any evidence of good character, stating, in substance, that the defendant had the right to offer such evidence, and had not done so, and that, until he put his character in issue, the prosecution could not attack it; whereupon the counsel for the defendant interrupted the special attorney for the government, and moved the court to say to the jury that this statement was improper, that the law presumed the defendant to be a man of good character, and that the fact that he did not introduce testimony on that subject could not be commented upon; the counsel for the defendant stating that at the proper time the defendant would ask the court so to charge the jury. The court declined to say to the jury that the attorney for the government could not comment upon the fact that the defendant had not introduced testimony to prove himself to be a man of good character, but said to the jury: 'It is true, the law presumes that; but the prosecution may comment upon the absence of any evidence being presented upon that question,'-- to which the defendant at the time objected and excepted, and still excepts. Under said permission from the court, and over the objection of the defendant, the special attorney for the government proceeded to say to the jury in substance, and did say substantially, as follows, to wit: 'While the law presumes the defendant to be a man of good character, he does not have to rest upon this presumption. He can call on his friends and neighbors to testify to his good character, but the prosecution could not call witnesses to attack his character until that was done. If he was a man of good character, why did he not call these friends and neighbors to prove it, and thus protect himself against these witnesses that his counsel has denounced as vultures? He did not stand like some poor mountain man,-- taken away from home and friends. He is at home, and, if he could prove himself to be a man of good character, why did he not do so?'-- to all of which the defendant at the time excepted, and still excepts. And on the next day, during the continuation of said closing argument, the special attorney for the government spoke of having tried men of high reputation for bad offenses, and who had speculated and lost money until the bank failed, and said that he had sympathy for such men, but that he had no sympathy for a man like the defendant, who was a 'confessed scoundrel,' a man 'without a character'; whereupon the counsel for the defense objected to these statements, which objection the court sustained, and directed the attorney for the government to withdraw the same, which he did, but proceeded to say 'that he (defendant) stands without a reputation in the community, and that he stands without such good character.' Thereupon the court interrupted the special attorney, and said, 'There is no evidence on that subject, and counsel should not say it'; whereupon the special attorney said: 'I withdraw it, then. I say that he has offered no evidence as to his character;' whereupon counsel for defendant again interrupted the special attorney, and said: 'We save an exception to that, and ask your honor to instruct the jury that it is improper,' Thereupon the court said to the jury: 'The law presumes the defendant innocent until he has been proven guilty to the exclusion of a reasonable doubt. The law presumes his character to be good, but, as the defendant might introduce evidence as to the fact of his good character, and did not, I think the district attorney can comment upon the fact that he has not.' To the last sentence in the court's statement to the jury the defendant at the time excepted, and still excepts. And thereupon, acting upon the permission of the court, and over the defendant's objection, the said special attorney again commented upon the fact that the defendant had offered no testimony as to his character, and again stated to the jury that the government could not attack the character of the defendant, as it had not been put in issue by him; to all of which the defendant objected and excepted, and still excepts.'

It will be perceived that while the court recognized the well-established rule that, in the absence of testimony, the law presumes the accused to possess a good character, it nevertheless permitted the counsel for the government to comment upon the want of such testimony. The court refused to check the counsel in this line of argument when objections were made by counsel for the accused, and in this connection said: 'It is true, the law presumes that; but the prosecution may comment upon the absence of any evidence being presented upon that question. ' Thereupon, under said permission, and over objections of the plaintiff in error, counsel proceeded to say: 'While the law presumes the defendant to be a man of good character, he does not have to rest upon this presumption. He can call his friends and neighbors to testify to his good character but the prosecution could not call witnesses to attack his character until that was done. If he was a man of good character, why did he not call those friends and neighbors to prove it, and thus protect himself against these witnesses that his counsel have denounced as vultures? He did not stand like some poor mountain man,-- taken away from home and friends. He is at home, and, if he could prove himself to be a man of good character, why did he not do so? ' The following day, the counsel having made comments on the standing and character of the prisoner, the court sustained the objections thereto, and required the counsel to withdraw the objectionable remarks, but permitted him to repeat his observations of want of testimony as to defendant's character, and, when asked to state to the jury that said comment was improper, said: 'The law presumes the defendant innocent until he has been proven guilty to the exclusion of a reasonable doubt. The law presumes his character to be good; but, as the defendant might introduce evidence of his good character, and did not, I think the district attorney can comment upon the fact that he has not. ' Nowhere in the subsequent proceedings or in the charge to the jury was anything said to qualify or change this ruling of the court. It amounted to an instruction to the jury that the effect of the failure of the accused to produce affirmative testimony of his previous good character might raise an inference against him as to his previous character and standing. Where the accused offers testimony in a criminal trial, seeking to show his previous good character, such testimony is substantive proof in his behalf, which the jury may consider in determining the likelihood of the commission of the alleged crime. Such testimony may of itself, or with other testimony, raise that reasonable doubt which requires acquittal. Where no testimony is offered, the accused can rest upon the legal presumption of good character. The question in this case is: May he be required to rest upon that presumption, qualified by the argument of the prosecuting attorney, made with the approval of the court, urging the jury to consider that the accused would have introduced testimony, had he been able to do so, showing his good character? To permit such course of proceeding would be to deprive the accused of the legal presumption in his favor. The suggestion of counsel, thus approved by the court, may be more detrimental to the rights of the accused than any testimony which could be adduced against him. In effect, it not only destroys the presumption in his behalf, but permits an inference that his character is bad because he has not produced proof to the contrary. While there is some confusion, and perhaps conflict, in the cases on the subject, sound principle, as well as the weight of authority, concurs in holding such comments, approved by the court, to constitute such substantial error as requires reversal and a new trial. The rule is well stated in 1...