Merrill v. United States
| Decision Date | 29 June 1925 |
| Docket Number | No. 4503.,4503. |
| Citation | 6 F.2d 120 |
| Parties | MERRILL v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barnett H. Goldstein and E. M. Morton, both of Portland, Or., for plaintiff in error.
George Neuner, Jr., U. S. Atty., and J. O. Stearns, Jr., Asst. U. S. Atty., both of Portland, Or.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
This is a writ of error to review a judgment of conviction under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). The information contains the three familiar counts, charging the unlawful possession of intoxicating liquor in violation of the National Prohibition Act, the unlawful sale of intoxicating liquor, and the maintenance of a common nuisance.
The first assignment of error challenges the sufficiency of the entire information because not verified, the second assignment challenges the sufficiency of the count charging the unlawful possession of intoxicating liquor, the third assignment challenges the sufficiency of the count charging the maintenance of a common nuisance, the fourth assignment challenges the ruling of the court admitting testimony of general reputation under the nuisance count, and the fifth assignment challenges the ruling of the court admitting testimony as to prior sales. All these questions have been decided adversely to the plaintiff in error by this court. Jordan v. United States (C. C. A.) 299 F. 298; Nunn v. United States (C. C. A.) 4 F.(2d) 380, decided March 2, 1925; Fassolla v. United States (C. C. A.) 285 F. 378; Anzine v. United States, 260 F. 827, 171 C. C. A. 553; McDonough v. United States (C. C. A.) 299 F. 30.
The next assignment of error is based on the admission of testimony showing that the plaintiff in error had been convicted of a misdemeanor for violating a liquor law of the state some 13 years before. All the authorities agree that such testimony had no tendency to prove the charges contained in the present information, but it was not admitted for that purpose. It was admitted as a part of the cross-examination of the plaintiff in error, for the purpose of affecting his credibility as a witness. There is a conflict of authority upon this question in the different circuits, but the great weight of modern authority seems to sustain the ruling of the court below. Fields v. United States, 221 F. 242, 137 C. C. A. 98; Christopoulo v. United States, 230 F. 788, 145 C. C. A. 98; Gordon v. United States, 254 F. 53, 165 C. C. A. 463; MacKnight v. United States (C. C. A.) 263 F. 832; Tierney v. United States (C. C. A.) 280 F. 322; Krashowitz v. United States (C. C. A.) 282 F. 599; Murray v. United States, 53 App. D. C. 119, 288 F. 1008; Nutter v. United States (C. C. A.) 289 F. 484; Wheeler v. United States (C. C. A.) 295 F. 588; Jones v. United States (C. C. A.) 296 F. 632; Parks v. United States (C. C. A.) 297 F. 834; Neal v. United States (C. C. A.) 1 F.(2d) 637; United States v. Liddy (D. C.) 2 F.(2d) 60; Williams v. United States (C. C. A.) 3 F. (2d) 129.
In some jurisdictions the proof is limited to the conviction of crimes such as would disqualify the witness at common law, in others the crime must rise to the dignity of a felony, while in still others the rule extends to crimes of every degree, except perhaps the violation of municipal ordinances. The latter rule has prevailed in the state of Oregon from a very early day. State v. Bacon, 13 Or. 143. Such proof, when admitted, should be strictly limited to the single purpose for which it is admitted; but there was in this case no request to limit the consideration of the testimony to any particular purpose, either at the time of its admission or in the general charge of the court.
It is further contended in this connection that the court erred in refusing to permit the plaintiff in error to...
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