Morris v. United States

• Decision Date: 13 December 1906
• Docket Number: 1,549.
• Citation: 149 F. 123
• Parties: MORRIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

149 F. 123

MORRIS v. UNITED STATES.

No. 1,549.

United States Court of Appeals, Fifth Circuit.

December 13, 1906

Rehearing Denied January 22, 1907.

W. L Crawford, for plaintiff in error.

Wm. H Atwell, U.S. Atty.

Argued before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE Circuit Judge.

The plaintiff in error, O. M. Morris, prosecutes this writ for the reversal of a verdict and judgment rendered against him upon an indictment charging him with carrying on the business of a retail liquor dealer without first having paid the special tax required by law. The errors assigned, some 18 in number, are based upon the rulings of the court on motions to quash demurrers to the indictment, in regard to the admission of evidence, and on refusals to give certain special instructions to the jury as requested.

It is not necessary to pass upon all the assignments, because the conclusion we have reached in regard to the third and eleventh requires a reversal of the judgment below, and on a new trial the rulings herein assigned as error may not be again made. The third and eleventh assignments of error are based upon the following proceedings, shown in the bill of exceptions: One W. R. McCafferty, sworn for the government having testified as to his residence, business, previous employment by the plaintiff in error, and some other matters was examined as follows:

'Mr. Atwell: Did you ever see Morris, while you were working there, go into that back room and bring anything out with him?

'Col. Crawford: We object.

'The Court: I will permit the question.

'Col. Crawford: We except.

'A. I can't say that I ever saw him bring anything out of the room that I remember of.

'Mr. Atwell: I don't like-- I think you are honest about it. You made an affidavit; been before the grand jury, and made an affidavit before the collector-- Collector Hunt?

'Col. Crawford: We ask that that be withdrawn from the jury.

'Witness: I can't say that it was alcohol. Yes; I have seen him bring--

'Col. Crawford: We ask the court to withdraw that, or give us an opportunity to inspect it. If it is for impeachment, the government cannot impeach its own witness without satisfying the court that the witness is corrupt, or that the government is surprised by the testimony. We have a right to inspect a former affidavit or deposition before that is resorted to, as we understand the rule.

'Mr. Atwell: I have a right to show it to him to refresh his memory, and that is all I have done.

'Col. Crawford: We object, and state the rule to be that the defendant has the right, before papers are put in the hands of the witness, to inspect the paper for the purpose of making objections to the use of the papers for the proposed purpose, or for any other purpose, and, further, for the purpose of preparing himself, by the inspection in advance of the examination, for a cross-examination of the said witness upon the said papers. No memorandum, affidavit, or deposition ought to be permitted to be used for the purpose of refreshing the memory of a witness, unless it appear that the present recollection of the witness of the past event has failed, unless it appears that the memorandum, affidavit, or deposition proposed to be used by the party calling the witness was made contemporaneous with the event to which it relates.

'But the court overruled these objections, and refused to permit the defendant to inspect the paper offered and put in the hands of the witness by the district attorney, and permitted the witness to read the paper and return it to the district attorney; and thereupon the examination proceeded as follows, the district attorney holding the paper in his hand, to all of which the defendant excepted.

'Explanation by the Court: With reference to the bill of exceptions as above reserved, the paper which the district attorney handed the witness was first handed by the district attorney to the court, and the paper was in fact what purported to be a written statement and an affidavit thereto, made and signed by the witness, McCafferty, before Deputy Collector of Internal Revenue Hunt. This paper, of course, was not read or submitted to the jury in any way.

'Further explanation by the Court: The written statement handed the witness for the purpose of refreshing his memory, and purporting to be his statement and signed by him, purported to be of date August 28, 1905.

'Further: The explanation hereinabove made, and called 'Explanation,' was made on March 10, 1906, and within the term at which the case was tried, and after notice to attorney for the defendant. The defendant, through his attorney, excepts to the making of such further explanation, on the ground the defendant's attorney did not at the trial have an opportunity to inspect the said paper, and because, further, the United States District Court of Texas for the Northern District of Texas has not now jurisdiction of this case, and because on the trial there was no proof offered of the date of the execution of the paper.'

The bill of exceptions further shows that one Hollingsworth, a witness sworn for the government, having been examined and cross-examined, was then re-examined, and during such re-examination the following occurred:

'Atwell: Q. Mr. Hollingsworth, you stated, in answer to a question, that you knew it was there because you heard two employes of Morris talking about it, did you? You understood that question when you answered? A. I think so. Q. That is, you knew the alcohol was there because you heard Turner and McDonald say it was there; is that the idea? (Witness hesitates.)

'The Court: Answer the question.

'A. Yes.

'Mr. Atwell: If you knew it was there, and had their consent to get it, why didn't you get it the first time you went in, without asking Morris? A. I didn't know it was there until I saw the bottle.

'(District attorney hands witness paper.)

'Col. Crawford: I object. It is manifestly-- It is not a memorandum made by the witness. It is not made in respect to any transaction-- not contemporaneous with any transaction. It is not written by him, as far as we know and believe. It is not such an affidavit as to refresh one's memory. We are entitled to the independent recollection of the witness.'

After presentation of authorities, the court said:

'The Court: I will permit the witness to be handed the affidavit.

'Col. Crawford: We save an exception.

'The Court: Can you read that affidavit?

'Witness: I can't read it without my specks.

'(Procures glasses and reads affidavit.)

'Witness: It don't seem like the one I signed.

'Mr. Atwell: Is not that your signature there? A. I don't know. I would not say. That is not what I aimed to tell him, and it is not what I said to the court. Q. You say that is not your affidavit? A. I don't know. I think this is my signature.

'(Witness is given another affidavit and reads it.)

'Witness: That is all right.

'Mr Atwell: Now; Mr....