Richards v. United States, 10700.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation192 F.2d 602,89 US App. DC 354
Docket NumberNo. 10700.,10700.
Decision Date27 September 1951

Josiah Lyman, Washington, D. C., with whom Kathryn M. Schwarz, Washington, D. C., was on the brief, for appellant.

Joseph A. Sommer, Asst. U. S. Atty., Washington, D. C., with whom George Morris Fay, U. S. Atty., and Harold H. Bacon and Joseph M. Howard, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before PRETTYMAN, FAHY and WASHINGTON, Circuit Judges.

WASHINGTON, Circuit Judge.

The defendant Richards was convicted of grand larceny in the United States District Court for the District of Columbia, and appeals.


We are confronted at the outset by the Government's contention that this court lacks jurisdiction because the appeal was not taken "within 10 days after entry of the judgment or order appealed from * * *," as required by Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.

It appears that the criminal docket of the District Court contains two entries in regard to the disposition of Richards' case, namely:

                  "June 16, 1950 — Sentenced to imprisonment
                                   for a period of
                                   Twenty (20) months to
                                   Five (5) years. Attorney
                                   Josiah Lyman present
                                   Kirkland, J."
                  "June 19, 1950 — Judgment and commitment
                                   of 6/16/50, filed
                                   Kirkland, J."

Notice of appeal was filed on Richards' behalf on June 27th, more than ten days after June 16th, which the Government contends is the crucial date, but within ten days after the 19th.

We think that this notice of appeal was timely. The expression "entry of the judgment", as used in Rule 37(a)(2), is not defined or explained by the Criminal Rules.1 Nor have we found any decisions interpreting the Rules in this regard. But Criminal Rule 32(b) requires that a judgment of conviction shall be more than a formality; it must "set forth the plea, the verdict or findings, and the adjudication and sentence." Rule 32(b) further requires that "The judgment shall be signed by the judge and entered by the clerk." As Judge Magruder of the First Circuit has said in a somewhat similar context, the clear implication of the Rule is that "the judgment must pre-exist before the clerk can perform the clerical or ministerial act of entering it." In re Forstner Chain Corp., 1 Cir., 177 F.2d 572, at page 576. The formal document reflecting the judgment and commitment in the present case, signed by the judge, begins with the recital "On this 16th day of June, 1950 * * * It is adjudged * * *," and bears no other date. The judge may well have signed it on that day; perhaps we may even presume that he did so. June 16th was, of course, the day on which Richards was sentenced in open court. But the clerk did not make any record of the signed judgment on the criminal docket until June 19th, when he made the entry "Judgment and commitment of 6/16/50, filed. Kirkland, J." We think that this was the "entry of the judgment" of which Rule 37(a)(2) speaks. Decisions of the Supreme Court prior to the promulgation of the Rules, though not controlling, lend support to this view. United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290; Silsby v. Foote, 20 How. 290, 295, 61 U.S. 290, 15 L.Ed. 822; Seymour v. Freer, 5 Wall. 822, 72 U.S. 822, 18 L.Ed. 564; Rubber Co. v. Goodyear, 6 Wall. 153, 73 U.S. 153, 18 L.Ed. 762; Polleys v. Black River Co., 113 U.S. 81, 5 S.Ct. 369, 28 L.Ed. 938. Other persuasive authority, though likewise not strictly in point, looks in the same direction. Neely v. Merchants Trust Co. of Red Bank, N. J., 3 Cir., 110 F.2d 525; Rosenberg v. Heffron, 9 Cir., 131 F.2d 80; United States v. Moore, 5 Cir., 182 F.2d 336; United States v. Rayburn, 8 Cir., 91 F.2d 162; In re Hurley Mercantile Co., 5 Cir., 56 F.2d 1023. See also Hill v. U. S. ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 80 L.Ed. 1283.

This conclusion appears to us to be logically inescapable, under the wording of the Rules.2 At the same time, we think we should add that it does not seem to us to be a conclusion prejudicial to the interests of either the Government or the defendant. It is, to be sure, a conclusion favorable to the remedy of appeal — a remedy we are not inclined to undervalue. As far as the effective date of the defendant's sentence of imprisonment is concerned, that is a matter governed by express statutory provisions, not affected by our ruling here. 18 U.S.C. § 3568. We do not need to decide in this case whether, if a defendant takes an appeal immediately after being sentenced but before entry of judgment of conviction, his appeal is effectively taken. We think it proper to note, however, that there is authority for the proposition that an appeal so taken is not a nullity, but becomes fully effective upon subsequent entry of judgment. See Luckenbach S. S. Co. v. United States, 272 U.S. 533, 535, 47 S.Ct. 186, 71 L.Ed. 394; Woods v. Nicholas, 10 Cir., 163 F.2d 615; Porter v. Borden's Dairy Delivery Co., 9 Cir., 156 F.2d 798. Compare Silsby v. Foote, 20 How. 290, 295, 61 U.S. 290, 15 L.Ed. 822; Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204.


The second major issue in the case relates to the effect to be given a pardon received by the appellant in respect of a prior conviction. Appellant contends that in view of the pardon it was error to allow the prosecutor to cross-examine him concerning the earlier conviction, in an effort to impeach his credibility.

Appellant took the stand in his own behalf. The prosecutor then questioned him concerning a conviction in a Federal court on January 5, 1942, based on the unauthorized use of a motor vehicle. Appellant objected to this line of questioning, on the ground that he had received a full pardon. The court took judicial notice of Presidential Proclamation No. 2676, 60 Stat. 1335, entitled "Granting Pardon to Certain Persons Who Have Served in the Armed Forces of the United States."3 That proclamation, the text of which is appended to this opinion, was issued on December 24, 1945. In effect, it promulgated a general amnesty for persons convicted of violations of Federal statutes who had served honorably in the armed forces during World War II for not less than one year. Counsel for the appellant placed in evidence an honorable discharge granted to the appellant, and the trial court found as a fact that he had served honorably for more than one year in the armed services. The appellant's objections were, however, overruled.

Judge Kirkland later prepared, prior to sentence and judgment, an extensive opinion supporting his ruling. United States v. Richards, D.C., 91 F.Supp. 323, noted 25 Tulane L.Rev. 281. We need not duplicate here the material contained in that opinion concerning the history of Executive pardons, nor repeat its copious citation of authority. We wish to add simply this: that the fundamental question here is whether an exception should be engrafted on the general rule — which is statutory in this jurisdiction4 — that where a defendant takes the stand the prosecutor may question him concerning prior convictions, in an effort to attack his credibility. That rule is one which has met with considerable criticism. It not only permits the prosecutor to throw doubt upon the defendant's testimony regarding the facts of the case being tried, but also may result in casting such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is an habitual lawbreaker who should be punished and confined for the general good of the community. Efforts to limit that rule and its consequences are accordingly not without considerable appeal.

It has been strongly urged in this case that we have before us a situation in which the usual application of the rule permitting impeachment of the defendant should be abrogated. Since the rule is statutory in the District of Columbia, there may be real doubt as to our power to create such an exception. Certainly, we cannot evolve an exception not in harmony with the basic purpose and reasoning of the legislation. That reasoning is no doubt this — that when the jury comes to assess the truth of any man's testimony it should be allowed to consider his previous criminal activity and its impact on his trustworthiness. Shall a pardon be deemed to change the fact that a person was convicted of criminal activity on a past occasion? "If the pardon was granted because the prisoner had political influence, or was a model prisoner, or behaved bravely in a prison fire, the pardon should not affect his credibility at all. The damage to his credibility * * * is not a legal consequence of the conviction; the conviction is merely evidence that he is untrustworthy, a fact not wiped out by the pardon." Weihofen, The Effect of a Pardon, 88 U. of Pa.L.Rev. 177, 183. A different view might perhaps be taken where the pardon was granted by the Executive on the express ground that the convicted man's innocence had been established, and that therefore his previous conviction was a miscarriage of justice. Ibid. But that is hardly the situation here.

The pardon on which appellant relies was not granted to him individually, but was in the nature of a general amnesty to a class of persons, without regard to guilt or innocence. The gratitude of the Nation to those who had honorably served in the armed forces was doubtless the primary factor motivating the Executive in extending this measure of clemency and grace. Nothing on the face of the proclamation indicates any specific desire on the part of the Executive to accord to the recipients the particular measure of benefit (freedom from cross-examination) which is sought in this case. The President, in using the language "full pardon," doubtless desired to grant all — but no more than —...

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