Rendleman v. United States
| Decision Date | 21 March 1927 |
| Docket Number | No. 4977.,4977. |
| Citation | 18 F.2d 27 |
| Parties | RENDLEMAN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Warren Hardy and Henry Clay Agnew, both of Seattle, Wash., for plaintiff in error.
Thos. P. Revellee, U. S. Atty., and Paul D. Coles, Asst. U. S. Atty., both of Seattle, Wash.
Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.
On the trial of Rendleman, plaintiff in error, who was convicted of the unlawful possession of morphine, and of having dealt in morphine without having registered or paid a special tax as required by law, the court ruled that Rendleman's wife was not a competent witness in his behalf. Review of the ruling is sought.
The case of Louie Ding v. United States (C. C. A. 1918) 247 F. 12, presented the question of the competency of a witness who did not believe in a Supreme Being who would reward or punish him for his acts in this world. We held that, while under the Judiciary Act of September 24, 1789, ch. 20, 1 Stat. 73, a change in the rules of the state as to the competency of witnesses cannot affect the rules as to their competency in the federal court, nevertheless, the rules of the state as to competency of witnesses in force when the federal courts, sitting within the borders of such state, were created, should control, and that therefore the common-law rule that the witness offered was incompetent did not apply in the federal court in Washington, where the statute of the state in force when the federal court was there established made incompetent as witnesses only persons of unsound mind, those intoxicated when produced, and children under ten years of age incapable of receiving correct impressions. The test applied was what local law obtained at the time of the creation of the state, not what the law was at the time of the enactment of the Judiciary Act of 1789. Withaup v. United States (C. C. A.
Upon the same day that we handed down the decision in the Louie Ding Case the Supreme Court decided Rosen v. United States, 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406, which arose in New York. The question there considered was the competency of a government witness who had pleaded guilty of a felony and was serving sentence. It was argued that by the common law as administered in New York in 1789 a person convicted of forgery and sentenced was thereby made incompetent as a witness until pardoned. The court adopted the modern view by holding the witness was competent, and said the decisions in Logan v. United States (1891) 144 U. S. 263, 12 S. Ct. 617, 36 L. Ed. 429, and in Benson v. United States (1892) 146 U. S. 325, 13 S. Ct. 60, 36 L. Ed. 991, had "seriously shaken" the authority of United States v. Reid, 12 How. 361, 13 L. Ed. 1023, decided in 1851, where it was held that the competency of witnesses in criminal trials in federal courts was to be determined by the rules of evidence which were in force in the respective states when the Judiciary Act of 1789 was passed. Referring to earlier decisions, the court said: "In the almost twenty years which have elapsed since the decision of the Benson Case, the disposition of courts and of legislative bodies to remove disabilities from witnesses has continued, as that decision shows it had been going forward before, under dominance of the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court, rather than by rejecting witnesses as incompetent, with the result that this principle has come to be widely, almost universally, accepted in this country and in Great Britain."
The opinion made no reference to Hendrix v. United States (1911) 219 U. S. 79, 31 S. Ct. 193, 55 L. Ed. 102, where, in reviewing a conviction of murder in Texas, the Supreme Court dismissed the assignment that the wife of Hendrix was not allowed to testify as to certain matters in his behalf, with the brief statement that the ruling was not error, citing Logan v. United States, supra.
In Greer v. United States (1918) 245 U. S. 559, 38 S. Ct. 209, 62 L. Ed. 469, decided a few weeks after Rosen v. United States, supra, defendant was convicted of introducing whisky from without the state into that part of Oklahoma that formerly was within the Indian Territory. Greer contended that the trial court was bound by the rules of evidence as they stood in 1789, but the court, through Justice Holmes, said "that those rules would not be conclusive is sufficiently shown by Rosen v. United States," and affirmed the conviction.
The question of the right of the wife to testify in her husband's behalf was involved in Jin Fuey Moy v. United States (1920) 254 U. S. 189, 41 S. Ct. 98, 65 L. Ed. 214, upon a review of a conviction in the federal court in Pennsylvania. Regarding the point as hardly requiring mention, the court proceeded upon the concession that the wife was not a competent witness for all purposes; her evidence not having been admissible at the time of the Judiciary Act. For this statement Logan v. United States, supra, and Hendrix v. United States, supra, were the only cases cited. The court added: ...
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Holman v. Lawhon
...to the competency of witnesses were the rules in force at the time of the creation of federal courts within the state, Rendalman v. United States, 18 F.2d 27 (9 Cir. 1927), or the rule in force in the particular state where the defendant was tried at the time of the admission of such state ......