Petersen v. United States

• Decision Date: 08 June 1959
• Docket Number: No. 5963.,5963.
• Citation: 268 F.2d 87
• Parties: Murray L. PETERSEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

268 F.2d 87 (1959)

Murray L. PETERSEN, Appellant, v. UNITED STATES of America, Appellee.

No. 5963.

United States Court of Appeals Tenth Circuit.

June 8, 1959.

Calvin L. Rampton, Salt Lake City, Utah (Morton Galane, Las Vegas, Nev., was with him on the brief), for appellant.

J. Thomas Greene, Asst. U. S. Atty., Salt Lake City, Utah (A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, was with him on the brief), for appellee.

Before BRATTON, Chief Judge, and MURRAH, PICKETT, LEWIS, and BREITENSTEIN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Petersen appeals from his conviction on a two-count indictment charging income tax evasion by the filing of false returns covering the years 1951 and 1952. Trial was to a jury. The sentence was two years on each count, to run concurrently, and a $5,000 fine on each count.

By use of the net worth method of proof the government established substantial tax deficiencies in each of the two years. Petersen admitted understatements of income but disputed the amounts of the deficiencies and denied any wrongful intent.

At the outset of the trial and in the presence of the jury, defense counsel in reply to an inquiry of the court stated that he would have three character witnesses. The court then said:

"I am going to stop this character witness business. We can have one character witness. This business of putting all the community on to testify to a man\'s character we are not going to do any more. One character witness is the rule in this court."

The rule is well established that "a defendant may offer his good character to evidence the improbability of his doing the act charged."¹ As said in Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 219, 93 L.Ed. 168, "character is relevant in resolving probabilities of guilt." In a case such as this where the defendant admits understatement of income and defends solely on the lack of wilful intent, the character of the defendant is an important element. In the exercise of a sound judicial discretion a court may limit the number of witnesses permitted to testify to a single fact and the extent to which cumulative testimony may be received.² It may be that in some instances, particularly where a fact is not contested, a limitation to one witness is proper. However, to restrict a defendant to one character witness is a harsh limitation in a case such as this where the sole defense is lack of wilful intent. The statement in the presence of the jury improperly belittled the use of character witnesses and showed the irritation of the court at a defense which the law permits. While we disapprove the actions of the district court we cannot say that they amount to reversible error.

The defendant requested and the court refused the following instruction on good character:

"Testimony has been given herein concerning the good character of the defendant. If you believe a defendant has established his previous good character, you should give that fact due weight. Such evidence of good character, when considered with all the other evidence, may alone create a reasonable doubt."

The only instructions given concerning this point were:

"You are to consider the evidence, all of the evidence, and after such consideration return a verdict here into court. Part of that evidence consists of documents and records. Part of that evidence consists of sworn testimony of witnesses: some accountant, revenue agents, the defendant himself, and other witnesses, including a character witness from over in Ogden, whose testimony you should take into account as well. You take that character witness\'s testimony into account just as you do any other witness\'s testimony here, and you decide the case upon the whole of the evidence."

Proper objection was made to this portion of the instructions.

Relying on Edgington v. United States, 164 U.S. 361, 366, 17 S.Ct. 72, 41 L.Ed. 467, this court, in Miller v. United States, 10 Cir., 120 F.2d 968, 971-972, adopted the rule that when a defendant offers evidence of good character the jury must be instructed that character testimony may be such that it alone may create a reasonable doubt, although without it the other evidence would be convincing. This rule was followed in Hayes v. United States, 10 Cir., 227 F.2d 540, 545, and Greer v. United States, 10 Cir., 227 F.2d 546, 549. Reliance on Edgington is said to be misplaced. The question of whether Edgington requires an instruction that character evidence alone may create a reasonable doubt or is satisfied by an instruction that the jury should consider such evidence along with all the other evidence in the case in determining guilt or innocence has produced a contrariety of opinion among the circuits.³ While this conflict has not been resolved by the Supreme Court it is significant that in Michelson v. United States, supra, that court said, by way of dicta and in obvious reference to Edgington, that character evidence "alone, in some circumstances, may be enough to raise a reasonable doubt of guilt and that in the federal courts a jury in a proper case should be so instructed."⁴ This sustains the interpretation which has been placed on Edgington by the Miller, Hayes and Greer decisions of this court. While we recognize the force of the decisions of those circuits which disagree, we decline to recede from the rule which has long been in force in this circuit. The requested instruction was proper, should not have been refused, and was not adequately covered by the instructions given.

The court rejected an offer of the defendant to prove through the accountant who prepared his returns that at the time of signing the 1952 return the defendant expressed concern at the net income stated thereon and asked for an explanation as to "why there was no income tax due when he had so much money." According to the offer, the accountant explained by referring to the taxability of capital gains and the deductibility of bad debts. Further, the defendant commented on the procedure relating to a bad debt item and was told by the accountant that it had been taken up with the local internal revenue office.

Wilfulness is an essential element of the offense charged. The defendant may not only testify that he had no such purpose but he also may, within reasonable limits, support his statement "with testimony of relevant circumstances, including conversations had with third persons or statements made by them."⁵ The offered testimony should have been received.

The judgment is reversed.

MURRAH, Circuit Judge (concurring specially).

I agree with the trial court and with the many cases from most of the circuits which say that evidence of good character is admissible and should be considered together with other probative evidence as tending to create a reasonable doubt of guilt or, if you please, to augment the presumption of innocence; that the verdict should rest upon "the whole of the evidence" without emphasis on any particular testimony. To me any other instruction tends to confuse rather than clarify the purposes for which good character testimony is admitted and is to be considered by the jury.

It is my firm conviction that the requested instruction, based as it was on the Edgington case, is a lifeless and doctrinaire interpretation of what was said in that case, and has the effect of distorting its wholesome philosophy. I agree with Judge Grubb in Le More v. United States, 5 Cir., 253 F. 887; and...