Sawyear v. United States

• Decision Date: 20 August 1928
• Docket Number: No. 5407.,5407.
• Citation: 27 F.2d 569
• Parties: SAWYEAR et. al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

27 F.2d 569 (1928)

SAWYEAR et. al. v. UNITED STATES.

No. 5407.

Circuit Court of Appeals, Ninth Circuit.

July 16, 1928.

Rehearing Denied August 20, 1928.

Paul Carrigan, of Seattle, Wash., for plaintiffs in error.

Anthony Savage, U. S. Atty., and Paul D. Coles, Asst. U. S. Atty., both of Seattle, Wash.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

The appellants were tried upon an indictment charging in the first count a conspiracy to violate the National Prohibition Act (27 USCA), in the second the prosecution of a distilling business without giving bond as required by the revenue law, and in the third the making and fermenting of 3,000 gallons of mash in a place other than a distillery authorized by law. They were all found guilty on the first and third charges, and Benjamin Newman alone was found guilty on the second.

The evidence for the government consisted mainly of the testimony of four prohibition agents. Smith and Jackson went to defendant Andrea's ranch, at a remote place in the woods, about midnight, and in a still house there observed a large still in operation. Upon entering they found defendant Oswald Newman standing beside the still and defendant Sawyear asleep on a mattress. Upon being awakened, the latter expressed doubt that the agents were federal officers, for, as he said, when he was employed shortly prior thereto the man who hired him represented that the still was "protected." Other conversations of an incriminating character ensued between the agents and these defendants. The still was of 500 gallons' capacity, with full equipment, in a specially erected building. In the vats the agents found 3,000 gallons of mash, with high alcoholic content, ready for distillation. In and about the building they further found 100 gallons of whisky, several sacks of corn and sugar, yeast, several drums of kerosene, and several kegs. At Andrea's barn they found quantities of like articles.

Jackson remained near the still until the following morning, when Andrea came in, took a drink, and acted like "one who was at home." Upon being arrested and interrogated, he admitted in some detail his participation in the enterprise.

The other two agents, Hubbard and Fryant, had no personal knowledge of the facts, but gave testimony touching conversations with the defendant Benjamin Newman. According to Hubbard, this defendant approached him on the morning after the raid, which was on February 17th, and on February 25th, and again on February 28th, each time interceding on behalf of the other three. Stating that he was the owner of this and other stills, and that his codefendants were acting with him in a subordinate capacity, he sought to induce Hubbard for a consideration to bring about their release, to have the seized property returned, and to secure protection for them in the future. On the last date he suggested that, if Hubbard had a friend on the prohibition force, he be brought in at the next meeting. Hubbard disclosed what had occurred to Agent Fryant, and they together, after laying the matter before the district attorney, met with Newman several times in the early part of March, at which meetings defendant repeated in substance what he had said to Hubbard alone, and made large offers of money for assistance and protection. To all of this the two agents testified in much detail.

The first and perhaps the most serious assignment pertains to an incident occurring at the opening of Hubbard's cross-examination. On direct examination he testified that he was a prohibition agent in February, 1927, and up to September 10, 1927. To the first question put to him on cross-examination he answered that he was appointed prohibition agent on October 2, 1925, or a little more than two years prior to the trial. To the ensuing question, "Prior to October 2, 1925, what kind of business were you in?" the court sustained an objection with the comment that, "If you wish to impeach a person's reputation, there is a well-settled legal method by which it may be done." Then the following:

"Counsel for Defendant: I ask leave to ask one question showing specifically, your Honor — I want to show what occupation he was engaged in prior to October 2d; that in fact it was a criminal occupation. May I ask that for the purpose of the record?

"District Attorney: In the first place, the statement is wholly false.

"The Court: Objection sustained. Counsel knows he should not state that, and when counsel resorts to such tactics the jury may draw such inference adverse to their case as they may see fit. Proceed.

"Counsel for Defendants: What was your occupation before you became a federal prohibition agent? (Objection by the district attorney.)

"The Court: Objection sustained. We are not trying the witness; we are trying the defendants.

"Counsel for Defendants: Exception. It would affect his credibility. That is the purpose of the question."

We think that the general view implied by the rulings is erroneous. True, a witness may be impeached by testimony that he bears a bad reputation for veracity, or by showing that he has been convicted of a criminal offense within certain classes; but the weight of his testimony, as well as its credibility, may be affected by other circumstances, and within a reasonable range inquiry may be made touching his occupation and the environment in which he chooses to live. The rule is too well...