Montgomery v. United States, 14115.

• Decision Date: 17 April 1953
• Docket Number: No. 14115.,14115.
• Citation: 203 F.2d 887
• Parties: MONTGOMERY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

203 F.2d 887 (1953)

MONTGOMERY v. UNITED STATES.

No. 14115.

United States Court of Appeals Fifth Circuit.

April 17, 1953.

COPYRIGHT MATERIAL OMITTED

Howard Dailey and Clyde G. Hood, Clyde W. Mays, Dallas, Tex., Dave Miller and Mays & Mays, all of Fort Worth, Tex., for appellant.

R. Daniel Settle, Sp. Asst. to U. S. Atty., Frank B. Potter, U. S. Atty., and Cavett S. Binion, Asst. U. S. Atty., Fort Worth, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

RIVES, Circuit Judge.

Appellant, defendant below, was convicted of willfully and knowingly attempting to defeat and evade a large part of the income tax due and owing by him and his wife for the years 1948, 1949 and 1950, 26 U.S.C.A. § 145(b).¹ Defendant was the sheriff of Tarrant County, Texas, and his trial and conviction followed close upon the heels of the trial and conviction of A. L. Wardlaw, Assistant District Attorney for that County. See Wardlaw v. United States, No. 14,105, 5 Cir., 203 F.2d 884. The court sentenced the defendant to serve a three year term of imprisonment on Count III, four years on Count IV, which sentences were directed to run consecutively, and two years on Count I to run concurrently with the sentences imposed on Counts II and III, making a total of seven years to serve. Appellant has appealed from the judgment of conviction assigning thirty-two specifications of error, only a few of which we find it necessary to consider.

There was no error in admitting in evidence the income tax return of the defendant and his wife for the year 1948 notwithstanding the return was not signed by either of them. It was sufficiently identified as their return. It bore the stamp of the Collector's office:

"Rec'd With Remittance Mar 14 1949 75 Coll. Int. Rev 2nd Dist. Tex."

The accompanying payment was by check, a photographic copy of which was admitted in evidence, dated March 12, 1949, payable to the Collector of Internal Revenue and signed by the defendant. One of the witnesses testified that he could tell the check was received with the return, because a serial number was stamped on both the check and the return when they were received by the Collector and the serial number on the two instruments was the same; and, further, that the balance due as shown on the return was the same amount as that for which the check was drawn. In fact, the defendant himself on cross-examination stated that he presumed it was his original return, "It corresponds with everything". Though not signed, the return was filed by defendant as his return, and intended to be received as such by the Collector, and was properly admitted in evidence. Emmich v. United States, 6 Cir., 298 F. 5.

At the end of the direct testimony of the witness W. H. Getzendaner, the district judge summarized the result of a lengthy examination as follows:

"It seems that the witness has a recollection of having paid fifty dollars in \'48, that he has no definite recollection of making more than one payment. That he made two payments in 1949, he has no definite recollection of paying more. That he made one payment of seventy-five dollars in 1950, but that he is unable to say if he made more, or, when.

"That seems to be the limit of his positive knowledge on the subject."

Defendant's counsel then proceeded vigorously to cross-examine this witness. Among other things, he asked the witness to name other officers to whom he had paid bribe money during the years in question, and upon objection by the Government explained his theory to the court as follows:

"Mr. Hood:

"It affects his credibility in this way, Your Honor, he is testifying in 1948 he paid this defendant fifty dollars to operate a place there in the city limits, with the police department, the investigators of the District Attorney\'s Office, there are eight constable precincts over there, had jurisdiction over the matter, and Texas Rangers, and State Highway Patrol, and he said he paid fifty dollars to the sheriff. We want to show how the sheriff protected him from all the others; it goes to affect his credibility."

The court permitted the questioning to proceed, but in a short time interrupted as follows:

"The Court:

"We have grave doubt about the correctness of the Court\'s ruling in compelling this man to testify in the first instance, that testimony had reference to the matter under inquiry. And now, to go into a field that was not under inquiry is, I believe, one in which he could further claim his right of self-incrimination, against self-incrimination. I think I will advise the witness that the order that we entered requiring him to testify in the other case does not further extend, and at the noon hour I am going to examine the authorities, and I may strike his entire testimony."

Defendant's counsel was then permitted to ask some further questions, but not the names of the persons to whom the witness claimed he had paid bribe money. When the session was resumed after the noon recess, the court announced:

"The Court:

"I have studied the law on the subject we had under consideration, and I adhere to my ruling and leave everything stand as it is."

The Government insists that the effect of that ruling was that the testimony sought to be elicited by defendant's counsel might be considered by the jury. Defendant's counsel evidently understood otherwise, as evidenced by his statement, "note our exception", and his failure further to cross-examine the witness.

If this witness' claim of constitutional immunity was to be denied, and we think that was proper, it had to be denied in toto so as to accord the defendant the benefit of cross-examination however searching. "Cross-examination of a witness is a matter of right", Alford v. United States of America, 282 U.S. 687, 691, 51 S.Ct. 218, 219, 75 L.Ed. 624. See J. E. Hanger, Inc., v. United States, 81 U.S.App.D.C. 408, 160 F.2d 8; Jianole v. United States, 8 Cir., 299 F. 496. Indeed, cross-examination, as has been often observed, is the surest test yet devised of the truthfulness of a witness' testimony, and its allowance is especially important in the case of a witness who is himself an admitted violator of the law. We think that the action of the court was an undue restriction on the defendant's right to cross-examine this witness.

Getzendaner was the only witness who testified to outright bribery of the defendant. Another witness, Clarence Cleere, was permitted to testify over the defendant's objection that the defendant called him to his office where the following conversation ensued:

"A. He said, `You haven\'t been to see me.\' I said, `I didn\'t know I had anything to come to see you — \'

"The Court: What is that? A. I said, `I didn\'t know that I had any reason to come to see you.\'

"He said, `Did you know that operating these pinball games was illegal?\'

"I told him that I didn\'t interpret the law that anything of that device was illegal.

"He said, `These other boys have come to see me and you never.\' He said, `I want you to bring me fifty dollars a month, to this office, and I am not coming after it.\'

"Mr. Dailey: We object to that as irrelevant and immaterial and inflammatory, and highly prejudicial, and of no probative force, for the reason this witness will testify, as I understand, that he never paid the sheriff a nickel in his life. If he didn\'t, what he is saying is highly irrelevant and immaterial and prejudicial and inflammatory.

* * * * * *

"Mr. Hood: May I ask the witness a question?

"The Court: Yes.

"Mr. Hood: Did you ever, in the years 1948, 1949 or 1950, pay the sheriff one dime? A. No, sir.

"Mr. Hood: We renew our objection as being highly irrelevant and immaterial and inflammatory and prejudicial."

The district judge could exercise a broad discretion in admitting this type of testimony to show that defendant's "motive in not reporting his illegal gains was to keep as secret as possible the fact that he was receiving income which it was a criminal offense to accept", Chadick v. United States, 5 Cir., 77 F.2d 961, 964, as well as "to establish the possible source of the funds used for the expenditures which so substantially exceeded appellant's declared available resources", United States v. Chapman, 7 Cir., 168 F.2d 997, 1000. The fact that the evidence objected to tended to establish that the accused committed offenses other than those charged in the indictment would be no justification for excluding it if it tended also to establish the commission of the crime charged in the indictment, Capone v. United States, 7 Cir., 51 F.2d 609, 619, 76 A.L.R. 1534. We think, however, that the jury should have been cautioned that the evidence was admitted only for the light that it might throw on the federal offenses on trial, and that no inference of guilt could be drawn merely from the commission of other offenses different in character. In short, the jury should not convict the defendant of income tax evasion because they concluded that he was a grafter. See Railton v. United States, 5 Cir., 127 F.2d 691; Lurding v. United States, 6 Cir., 179 F.2d 419.

Mr. Justice Frankfurter in his concurring opinion in Johnson v. United States, 318 U. S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704, stated: "In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure." When the testimony and the parts of the arguments copied in the record are read in an effort to "re-live the whole trial", we can see the difficulty of the task faced by court and jury in confining their consideration to the federal offenses on trial. That difficulty but emphasizes the precautions that should be observed by the court and the district attorney to insure the defendant a fair trial on the offense alone with which he was charged.

The third and last witness, who was placed on the stand by the Government to...