Pittman v. United States

• Decision Date: 30 July 1930
• Docket Number: No. 8814.,8814.
• Citation: 42 F.2d 793
• Parties: PITTMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

42 F.2d 793 (1930)

PITTMAN v. UNITED STATES.

No. 8814.

Circuit Court of Appeals, Eighth Circuit.

July 30, 1930.

L. L. Collins and Harold Pierce, both of Springfield, Mo., for appellant.

Wm. L. Vandeventer, U. S. Atty., and Chet A. Keyes, Asst. U. S. Atty., both of Kansas City, Mo.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

KENYON, Circuit Judge.

Appellant was tried and convicted on both counts of an information which charged, in the first count, an unlawful sale of intoxicating liquor, and, in the second, the maintenance of a common nuisance at a certain building used as a hotel in Taney county, Mo., by conducting a place where whisky unlawfully was possessed, kept, and sold in violation of the National Prohibition Act (27 USCA § 1 et seq.).

The evidence introduced by the government was that one R. R. Lashbrook, who was a federal prohibition agent working under the deputy prohibition administrator of the Western district of Missouri, went about February 10, 1929, with an informer named Berry Jones, to the building described in the information located at Branson, Mo. Lashbrook was introduced to appellant under the name of George Lewis. The informer asked appellant "if he had any more of that good whisky." Appellant asked how much was wanted, and Lashbrook said a quart ought to be enough. Appellant filled two pint bottles and handed them to Lashbrook, who gave him three $1 bills. These bottles were examined at Kansas City, and were found to contain whisky. Lashbrook was substantiated to some extent by the informer Jones, whose evidence was of such a dubious character, and who was so contradicted, that the court in its instructions to the jury described him as "a man of pitifully weak character."

Mr. Lane, who was deputy prohibition administrator of the Western district of Missouri, testified to the reputation of this place as being one where intoxicating liquors were kept, bartered, and sold. While appellant was being taken in a car by the officers to Springfield, he told them that Jones had double-crossed him and caused him to sell liquor to a prohibition agent.

There was evidence on the part of appellant of his good reputation in the community in which he lived. Appellant in his testimony admitted that his place had been raided at one time, but denied that any liquor was there found.

A number of assignments of error are presented. Some are readily disposed of. The question of error in overruling appellant's demurrer to the government's evidence at the close of the government's case was waived by failing to present the demurrer at the close of all the evidence.

The question as to a technical defect in the information, to wit, that it purports to be founded upon the affidavit of W. Harold Lane, when no such affidavit appears, is raised for the first time in this court. There is no showing that a warrant was issued on the information. Appellant was arrested in June, 1929, and the information was filed October 10, 1929. Trial was had October 11, 1929. Appellant was arrested long before the information was filed. The failure to verify the information under these circumstances was certainly not a fatal defect. That the information stated a crime against the government is unquestioned. The alleged defect was not called to the attention of the trial court. It is too late to raise it now. Dismone v. United States (C. C. A.) 12 F. (2d) 63; Beach v. United States (C. C. A.) 19 F.(2d) 739.

The important questions raised by the assignments of error are with reference to the introduction and exclusion of testimony and as to the alleged improper cross-examination of certain witnesses.

Berry Jones was asked on cross-examination if, while he was in the employ of the government, carrying the government mail, he had not been convicted or did not plead guilty to transporting liquor in violation of the National Prohibition Law (27 USCA § 1 et seq.).

Evidence of the conviction of crime as affecting the credibility of a witness is limited to conviction of a felony, an infamous crime, or a crime involving moral turpitude. Lawrence v. United States (C. C. A.) 18 F. (2d) 407; Scaffidi et al. v. United States (C. C. A.) 37 F.(2d) 203.

It is not entirely clear in the record as to whether the appellant was attempting to show that Jones had been convicted for the transportation of liquor subsequent to the time that the Jones Act (27 USCA §§ 91, 92), which would make such transportation a felony, took effect, viz. March 2, 1929. The government contends that under the record it is apparent that the question related to the time before March 2, 1929. If it did, there was no error in excluding the evidence. If subsequent to the Jones amendment to the National Prohibition Act, then the exclusion thereof was error. Haussener v. United States (C. C. A.) 4 F.(2d) 884. The form of the question might call for an answer involving a transportation after March 2, 1929; i. e., a felony. The government's objection should have raised this question clearly and pointedly and its solution by the court would have been timely. This alleged error can easily be eliminated on another trial.

The witness Fulbright testified to the good reputation of appellant in the neighborhood where he lived, as to being an honest, peaceable, truthful, upright, law-abiding citizen. He also testified as to the good reputation of the place of business. The following occurred on cross-examination:

"By Mr. Keyes: Q. Did you know the Government had raided that rock house about eighteen months ago? A. No sir, I didn't.

"Q. You didn't know that? A. No sir.

"Q. What would you say as to the reputation of the rock house if the Government had raided it and found a quantity of intoxicating liquor there about eighteen months, or twenty months ago, and the proprietor of that place about nine months ago was arrested and charged with the violation of the National Prohibition Act and maintaining a nuisance. Now, with that fact established in your mind, would you then say that that place had a good reputation?

"Mr. Collins: The defendant objects to that question, if Your Honor please, because it assumes facts not proven.

"The Court: Objection overruled.

"Mr. Collins: Defendant excepts.

"Q. What would be your answer to that? A. I don't know as I just got that. Give that to me again.

"Q. Well, let us assume that the Government raided this place sometime ago and obtained a quantity of intoxicating liquor, and you knew about it, and then let us assume that the proprietor of that place had been arrested, charged with making a sale of whisky at that place, and you knew about it, with these facts in your mind and before you, would you then say that place had a good reputation? A. I don't think I would say so.

"Q. You don't think you would? A. No sir."

The witness Keeler testified likewise to the good reputation of appellant and that he had not heard the reputation of the place he was operating questioned. The following occurred on cross-examination:

"By Mr. Keyes: Q. Did you know it had been raided by the Government sometime ago?

"Mr. Collins: We object.

"The Court: Objection overruled.

"Mr. Collins: Defendant excepts.

"A. I heard it had been raided sometime ago. That has been a year or so ago. I have not heard anything since then.

"Q. Did you hear Mr. Pittman had been arrested? A. I had not.

"Q. You didn't hear that until you came to court? A. I had no knowledge of that until I came here today. * * *

"Q. Now then you say it has a good reputation in that community, as being a place where intoxicating liquors are sold; that it has no reputation in fact of being a place where intoxicating liquors are sold? A. I can't say that I have ever heard it questioned.

"Q. Outside of the one time when the Government raided it? A. Yes, I heard they raided it; that was all. I knew nothing about it.

"Q. Assuming for the purpose of discussion that it had been raided, and you had known it was raided, with that knowledge in your mind and then assuming that you had heard that the proprietor or operator of the place had been arrested by the Government and charged with the sale of whisky there and maintaining a nuisance, then with that fact in your mind, would you still say it has a good reputation?

"Mr. Collins: Defendant objects to that question for the reason it does not tend to prove any issue in this case and is wholly incompetent, is an improper question and only tends to prejudice the jury.

"The Court: Objection overruled.

"Mr. Collins: Defendant excepts.

"Q. What would you say? A. Please repeat the question.

"Q. Assuming it has been raided by the Government sometime ago and you knew that, and assuming the operator of the place was again arrested by the Government charged with selling whisky there and maintaining a nuisance at that place and you knew that, with knowledge of those incidents in your mind, would you then tell this jury that it had a good reputation? A. I could not.

"Q. You could not? A. No."

Appellant admitted that his place had once been raided, but there was no evidence that he was arrested at that time, or that any intoxicating liquor was found. The questions on cross-examination are not entirely clear as to whether the arrest referred to related to the alleged crime charged in the information, or whether it was some other arrest. In the question to the witness Keeler, which we have set out, the phrase "was again arrested" is used, implying, of course, that there had been a previous arrest to the one with which the present case is concerned. The questions were rather deftly put, and combine statements concerning which there was no evidence with what the witness may have heard concerning the arrest on the charges in the information.

This method of cross-examination is not proper. A witness sufficiently qualified may testify as to the general reputation of a defendant as to good character prior to the time of the charges in the indictment or...