Roberson v. United States

• Decision Date: 12 December 1956
• Docket Number: No. 16006.,16006.
• Citation: 237 F.2d 536
• Parties: Herman ROBERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

237 F.2d 536 (1956)

Herman ROBERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 16006.

United States Court of Appeals Fifth Circuit.

October 24, 1956.

Rehearing Denied December 12, 1956.

Wm. J. Fuller, Jr., Montgomery, Ala., L. Drew Redden, Rogers, Howard & Redden, Birmingham, Ala., for appellant.

Hartwell Davis, U. S. Atty., Robert E. Varner, Asst. U. S. Atty., Montgomery, Ala., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

For violation of the Dyer Act,¹ appellant was convicted on four counts, three of them for receiving² a stolen motor vehicle which was moving as interstate commerce, knowing the same to have been stolen, and the last count for so selling such a stolen motor vehicle. The defendant's motion to dismiss, based principally upon the contention that the description of the automobile was too indefinite, was denied.

The Sixth Amendment requires that, "In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; * * *." As said in Bartell v. United States, 227 U.S. 427, 431, 33 S.Ct. 383, 384, 57 L.Ed. 583:

"It is elementary that an indictment, in order to be good under the Federal Constitution and laws, shall advise the accused of the nature and cause of the accusation against him, in order that he may meet the accusation and prepare for his trial, and that, after judgment, he may be able to plead the record and judgment in bar of further prosecution for the same offense."

See also, Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606. In passing on the objection that the indictment was in such indefinite terms that the accused could not plead an acquittal or conviction in bar of another prosecution, it must be borne in mind that, upon a plea of former jeopardy, the identity of the offenses may be established by other parts of the record or even by parol evidence.³ The present indictment contained "a plain, concise and definite written statement of the essential facts constituting the offense charged." Rule 7(c), F.R.Crim.Proc., 18 U.S.C.A.; 18 U.S.C.A. § 2313, footnote (1), supra. The descriptions of the motor vehicles contained in the indictment were more definite than that contained in the illustrative form. Rule 58, F.R. Crim.Proc., Appendix of Forms, Form 7.⁴ The district court properly denied the motion to dismiss the indictment and each count thereof.

Nor did the district court commit reversible error in denying the motion for a bill of particulars, and this for two reasons: first, it was filed on the day of trial rather than within ten days after arraignment, as required by Rule 7(f), F.R.Crim.Proc.; and, second, defendant's counsel admitted that the United States Attorney had already furnished to him the motor numbers of the automobiles involved in the prosecution.

We have carefully read and studied the entire record and have no doubt that, under the evidence, the motion for judgment of acquittal as to each count was properly denied. As to the last count charging sale of a stolen motor vehicle, the appellant strenuously urges a lack of support for the averment that the vehicle was moving as interstate commerce, because it had come to rest on a used car lot for approximately six weeks prior to its sale.⁵ The evidence was sufficient, however, from which the jury could have found that the automobile was stolen and transported with the intent that it should be sold through a fence to an ultimate user, and that, having been once placed in interstate commerce, it continued therein until it reached its destination, that is, the purchaser from the alleged fence.⁶

Of the remaining specifications of error it is necessary to discuss only those relating to the cross-examination of the defendant's character witnesses.⁷

In the case relied upon by the district court footnote (7), supra, Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, the Supreme Court held that it was not reversible error to permit the United States Attorney to ask the defendant's character witnesses on cross-examination whether they had heard that the accused had been convicted twenty years previously of a violation of the trademark law in New York City, and whether they had heard that twentyseven years previously the accused had been arrested for receiving stolen goods. The Court recognized that it is inadmissible for the defendant to be allowed to disprove the conduct so rumored against him, and that the use of this type of cross-examination is accompanied by grave danger of injustice to the defendant. See Footnote (4), 335 U.S. 473, and see pages 485 and 486, 69 S.Ct. 217, page 223 of the opinion. Mr. Justice Rutledge, with whom Mr. Justice Murphy joined, filed a strong dissenting opinion, and while Mr. Justice Frankfurter concurred in the Court's opinion, he did so "Despite the fact that my feelings run in the general direction of the views expressed by Mr. Justice Rutledge in his dissent". 335 U.S. at page 487, 69 S.Ct. at page 224.

The district court and this Court are, of course, bound by the majority opinion of the Supreme Court, but a careful reading of that opinion persuades us to the view that it marks out the extreme limits of permissible cross-examination. Further, the Supreme Court itself implied essential safeguards which have not been observed in the present case. For example, the Court made repeated note of the fact that the trial court had ascertained out of the presence of the jury that the arrest or conviction had actually occurred. 335 U.S. 472, 481, 69 S.Ct. 216, 221, and footnote 18 on the latter page. It further noted that,

"Since the whole inquiry, as we have pointed out, is calculated to ascertain the general talk of people about defendant, rather than the witness\' own knowledge of him, the form of inquiry, `Have you heard?\' has general approval, and `Do you know?\' is not allowed.¹⁹

In the present case, when this type of cross-examination was first approached, the following occurred:

"Mr. Varner: Did you know Herman Roberson in 1938?

"A. Yes, sir.

"Mr. Fuller: Your Honor, I ask the Court to excuse the jury while we go into a matter.

"The Court: It is the proper manner of cross examination of any witness who testified to character and reputation to seek to elicit from her whether or not she knows of any offenses that he has been convicted of, or any offenses that, or any other matter that may be of a derogatory nature, I will expect the Government, as officers of the Court, to not ask something they can\'t prove and connect later on, in the event it becomes necessary.

"Mr. Davis: We can prove that, we have a record here.

"The Court: Use your judgment."

Thus the district court refused to conduct the inquiry outside the presence of the jury, misconceived the permissible inquiry as being directed to what the witness knows instead of what he has heard, and worst of all, permitted the United States Attorney to assure the jury of the existence of record evidence of the actuality of each arrest and conviction inquired about. While Government counsel conducted the prosecution with commendable vigor, he allowed his zeal to cause him to disregard the precaution so well expressed by Judge Harlan, now Mr. Justice Harlan: "We may also add that it is incumbent on prosecuting attorneys to be scrupulous in not stepping out of bounds on this sort of cross-examination." United States v. H. Wool & Sons, 2d Cir., 215 F.2d 95, 99.

Further, when the United States Attorney started to cross-examine the defendant "so that we can prove these things" and defendant's counsel objected, the court responded:

"The Court: I sustain that. It is not necessary that you prove it. It is* affirmatively denied and it is not necessary to prove it."

* Apparently the word "not" has been omitted.

Of course, the actuality of defendant's prior arrests or convictions was not an issue, and could neither be proved by the Government nor disproved by the defendant. That, however, was not the impression ineradicably left in the jury's mind.

Further, the district court overruled objections to questions inquiring "do you know" instead of "have you heard", footnote (7), supra.

Appellee urges strongly that the defendant did not object on the ground that the question was in the wrong form.⁸ Under the circumstances of this case, however, including the court's refusal to conduct the inquiry out of the presence of the jury, we agree with the Supreme Court of Alabama that a general objection to such a question was sufficient.⁹

In his final charge to the jury, the learned district judge ably and correctly instructed them.¹⁰ We apprehend, however, that it was then too late to cure the repeated errors. Before we can accord entire verity to a verdict of guilty, that verdict must result from a trial fairly conducted in every material respect in accordance with the rules of law, and, inadvertently this trial was not so conducted. The judgment is, therefore, reversed and the cause remanded.

Reversed and remanded.

1 18 U.S.C.A. § 2313:

"Sale or receipt of stolen vehicles

"Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

2 For example, Count 1 read:

"On or about March 4, 1953, in the Middle District of Alabama, Herman Roberson received a stolen motor vehicle (to wit, a 1948 Chevrolet automobile) which was moving as interstate commerce, and he then knew said motor vehicle to have been stolen."

3 Dunbar v. United States, 156 U.S. 185, 191, 15 S.Ct. 325, 39 L.Ed. 390; Bartell v. United States, supra, 227 U.S. at page 433, 33 S.Ct. at page 384; 27 Am.Jur., Indictments and Informations, § 58, Note 9.

4 "On or about the...