Milton v. United States
Decision Date | 26 February 1940 |
Docket Number | No. 7423.,7423. |
Parties | MILTON et al. v. UNITED STATES. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Martin S. Vilas, Norman S. Bowles, Jr., and John Mitton, all of Washington, D.C., for appellants.
David A. Pine, U. S. Atty., and John W. Jackson, Asst. U. S. Atty., both of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
Appellants were convicted in the court below of uttering a check, having thereon the false and forged endorsement of James Conroy, knowing it to be forged. The endorsement was written by appellant Quantrille and the check was uttered by his friend and roommate appellant Milton.
Several points were urged for our consideration upon this appeal; one of which was the alleged misconduct of the prosecuting attorney which, it is claimed, occurred — by way of interruption — during appellants' argument to the jury. At that time the following colloquy took place between the respective counsel:
It is the italicized sentence which is challenged.
In the trial of an accused person he may, at his own request, and not otherwise, be a competent witness.1 The statute which grants this privilege also provides that "his failure to make such request shall not create any presumption against him." As early as 1893,2 the Supreme Court interpreted this language as follows: This principle has been applied in a number of later cases,3 and its strict observance has been many times commended to prosecuting attorneys.
However, even under the law as it existed at the time of the decision in the Wilson case, such conduct did not necessarily require that the verdict be set aside or a mistrial declared. This is evidenced by the further language of the Court, in that case, when it said:4
* * * * *
"The refusal of the court to condemn the reference of the District Attorney and to prohibit any subsequent reference to the failure of the defendant to appear as a witness tended to his prejudice before the jury, and this effect should be corrected by setting the verdict aside and awarding a new trial."
It was the duty of counsel for the accused, at once, to call any objectionable remarks to the court's attention; to request its intervention; and in event of the court's failure to do so, then to note an exception.5 This they did not do. In fact, there is nothing in the record to indicate that, at the time of the colloquy, either counsel or court regarded the challenged statement as objectionable. Only by the broadest application of the principle declared in the Wilson case can it be said that the comment would have had any tendency to create in the minds of the jury a presumption against the accused from his failure to testify. The failure of counsel to call it to the court's attention shows that the assignment of error upon this point was an afterthought. Under the circumstances the objection came too late;6 especially as the court, in its charge to the jury, on its own motion instructed that: 7 Moreover, even if the question were a doubtful one — under the law as it existed prior to 1919 — it is clearly apparent, we think, in view of the provisions of the Act of February 26, 1919,8 that under the circumstances of the present case no prejudice resulted to the accused from the remark made by the prosecuting attorney.
Appellants present, also, for our consideration a closely related question, i. e., whether it was prejudicial misconduct for the prosecuting attorney to comment on the failure of appellants to produce as a witness a woman who was referred to in the testimony as Mrs. Saunders and as Mrs. Skinner. The Supreme Court has stated the applicable rule to be that "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable."9 Hence, while it is true that if a witness is equally available to the Government and is in a legal sense a stranger to the accused, no presumption arises against him from his failure to call such a witness;10 conversely, if the witness is available to the accused and not to the Government and is informed concerning facts material to the case, the presumption arises from his unexplained absence that the accused had good reason for not calling him; and this may properly be argued against him.11
In the present case, the woman in question was identified by one of appellants' witnesses, and also by appellant Quantrille, as the employer of the latter at the inn where Quantrille said he cashed the check. According to the testimony, she was present at that time and "told Quantrille that she did a cash business and she could not take a check, and that Mr. Quantrille would have to cash it himself." This evidence was vital to appellants' defense; the woman stood in close relation to appellant Quantrille, within the meaning of our decision in the Egan case; she was presumably known and available to appellants; her unexplained absence suggests that appellants had good reason for not calling her; and this was properly argued against them.
During the course of the trial, there were read into evidence certain portions of the reporters' transcripts of testimony given by Quantrille and Milton, at a former trial and at a former hearing. Objection was made to their admission "on the ground that they were immaterial, irrelevant and incompetent and, further, that said records were secondary evidence and were of testimony taken in a case and hearing where the issues were not similar to the issues involved and portions thereof were taken in a hearing by the Court and where no jury was present." The Government concedes that the testimony was given at a trial for housebreaking and larceny, and at a hearing on a motion for new trial in that case; and that on both occasions the issues were substantially different from those involved in the present case. However, it contends that the evidence was properly received, nevertheless, to prove admissions voluntarily made by appellants. This contention is correct and appellants' assignment of error on this point is without merit.
When evidence is offered to prove an admission — unlike the situation when it is offered as secondary evidence to prove statements of dead or absent witnesses12 — there is no requirement that opportunity should have been given for cross-examination13 and, consequently, no requirement of identity of issues.14 Admissions have probative value not because they have been subjected to cross-examination and therefore satisfy the hearsay rule, but because they are statements by a party opponent, inconsistent with his present position as expressed in his pleadings and testimony.15 It is not even necessary that such evidence should have been given in a courtroom or under oath.16 The fact, that it was so given in the present case, however, does not detract from its admissibility.17 The applicable rule is well stated in...
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