Solomon v. United States, 1671.

• Decision Date: 26 February 1924
• Docket Number: 1671.
• Citation: 297 F. 82
• Parties: SOLOMON v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

297 F. 82

SOLOMON v. UNITED STATES.

No. 1671.

United States Court of Appeals, First Circuit.

February 26, 1924

William H. Lewis, of Boston, Mass., for plaintiff in error.

Laurence Curtis, Second Asst. U.S. Atty., of Boston, Mass. (Robert O Harris, U.S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge.

BINGHAM Circuit Judge.

The plaintiff in error, Charles Solomon, was indicted jointly with others in the United States District Court for Massachusetts and found guilty upon the first and fourth counts. The first count charged him with subornation of one Rose Shaffer to commit the crime of perjury in violation of section 126 of the Criminal Code (Comp. St. Sec. 10296). The fourth count charged him with impeding the due administration of justice by influencing and intimidating said Rose Shaffer a witness in behalf of the United States at another trial against said Solomon and one Ferino in said District Court in violation of section 135 of the Criminal Code (Comp. St. Sec. 10305). January 23, 1923, Solomon was sentenced to five years at hard labor in the penitentiary at Atlanta, Ga., and to pay a fine of $1,000.

It appears that Solomon and Ferino were indicted in the District Court at the June term, 1922, for having in their possession certain drugs in violation of the Narcotic Act; that on October 10, 1922, Solomon was tried on said charge and acquitted; that at that trial Rose Shaffer was called as a witness for the government and refused to identify Solomon as the man who had hired a closet in her house where the drugs were found, and also denied certain portions of an affidavit made by her to the narcotic agents which appears in the record.

At the trial on the present indictment upon which Solomon was convicted, Rose Shaffer was called as a witness by the United States and testified that the testimony given by her at the previous trial of Solomon in October, 1922, was false; and gave testimony inferentially tending to show that she was induced by Solomon to perjure herself.

The errors complained of relate (1) to the number of challenges permitted the defendants; (2) the comment of the court upon the credibility of Rose Shaffer; (3) the admission of an affidavit made by Rose Shaffer to one Scannell, a narcotic agent; (4) the admission of a record of a previous conviction of Solomon for the purpose of impeachment; (5) the admission of the testimony of Rose Shaffer to the effect that one of the defendants showed her a newspaper clipping stating that Solomon had served 18 months; and (6) the admission of the testimony of Rose Shaffer that she had employed a lawyer named Weiner and told him the whole story.

The government has moved to dismiss this proceeding on the ground that the writ of error was not allowed or sued out within the time prescribed by section 11, chap. 517, of the Act of March, 1891 (26 Stat.at Large, 829; Comp. Stat. Sec. 1647); and that this court is therefore without jurisdiction. We think this motion must be denied. The sentence under review was imposed January 23, 1923. On July 13, 1923, counsel representing the plaintiff in error filed his petition for a writ of error, an assignment of errors, and a motion, and on the 16th of July appeared before the judge having the case in charge and requested a hearing upon his motion and the allowance of his writ of error. The district attorney objecting to proceeding with the hearing at that time, the judge fixed July 24, 1923, for hearing the motion and the allowance of the writ, on which date he allowed the writ of error upon which citation issued and was forthwith served.

As the writ of error was presented for allowance within the time limited by the statute and the delay in the allowance and issuance of the writ was due to the action of the court and not of the plaintiff in error, its allowance is to be regarded as having been made as of the date of the presentment of the writ rather than as of the time when it was in fact allowed. Randall Co. v. Foglesong Mach. Co., 200 F. 741, 742, 119 C.C.A. 185; Toledo Metal Wheel Co. v. Foyer Bros. & Co., 223 F. 350, 351, 138 C.C.A. 612; United States v. Adams, 6 Wall. (73 U.S.) 101, 107, 18 L.Ed. 792; Latham v. United States, 131 U.S. Appdx. xcvii, 19 L.Ed. 452.

The first assignment relates to the ruling of the court at the time the jury was impaneled to the effect that all the defendants should be treated as one and entitled to only 10 peremptory challenges. The contention of the plaintiff in error is that each defendant was entitled to 10 such challenges. Section 287 of the Judicial Code (Comp. Stat. Sec. 1264) provides:

'When the offense charged is treason or a capital offense, the defendant shall be entitled to twenty and the United States to six peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to six peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. * * * '

This assignment of error is without merit. The meaning of the last clause of this section is what it says: That in all cases (civil or criminal) where there are several defendants they shall be deemed a single party as to all challenges under this section. This is the construction placed upon it by the courts. Stilson v. United States, 250 U.S. 583, 40 Sup.Ct. 28, 63 L.Ed. 1154; Schaefer v. United States, 251 U.S. 466, 40 Sup.Ct. 259, 64 L.Ed. 360; Schwartzberg v. United States, 241 F. 348, 154 C.C.A. 228. And such has been its application where separate indictments against different defendants have been consolidated under Revised Statutes, Sec. 1024 (Comp. St. Sec. 1690). Krause v. United States, 147 F. 442, 78 C.C.A. 642; Emanuel v. United States, 196 F. 317, 116 C.C.A. 137. If the defendants had been indicted separately and for convenience tried together (Rev. Stat. Sec. 921 (section 1547)), each defendant would have been entitled to 10 challenges the same as he would if he had been tried separately. Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 Sup.Ct. 909, 36 L.Ed. 706; Betts v. United States, 132 F. 228, 65 C.C.A. 452. But this is not such a case.

The second assignment relates to a comment of the trial judge in support of the credibility of Rose Shaffer during her cross-examination by counsel for Solomon, she being the person Solomon is charged with having procured to testify falsely at the narcotic trial in October, 1922, and the chief witness for the government to sustain the present indictment against Solomon. In the cross-examination counsel was endeavoring to have this witness answer his questions of her own knowledge and not what some one told her, when the court informed him that he was not quite fair with the witness, stating that 'when you ask what she knows, or as far as she knows, you open the door inevitably to her telling you what somebody told her. ' Counsel replied: 'I am trying to be fair. ' Whereupon the court said: 'When you ask those questions, the witness, if she is trying to tell you the truth, and I assume she is until the contrary appears, will answer what somebody told her. ' Counsel then excepted to this remark, saying: 'I think it is for the jury to say she is telling the truth. ' The court replied: 'I disallow it. A proper remark to make in making rulings. I refuse an exception to that. The jury will understand the question as to whether the witness is telling the truth is for them. They will understand that in the rulings the court makes the court does not assume the witness is telling a falsehood or is not telling a falsehood. It is a question of fact for the jury.'

Counsel for the plaintiff in error contends that, inasmuch as the testimony of Rose Shaffer, a self-confessed perjurer, constituted practically the sole evidence upon certain material questions and whose credibility was of vital consequence in the case then on trial, it was highly improper and prejudicial for the court to undertake to bolster up her credibility in the manner above indicated. Were it not for the fact that the court subsequently in effect withdrew his comment and told the jury that the question whether the witness was telling the truth or not was for them to determine, we would be inclined to regard this as prejudicial error. But, under the circumstances, we think the plaintiff in error takes nothing by this assignment.

The third assignment relates to the introduction in evidence during the examination of one Scannell, a narcotic inspector for the government and called by it as a witness, of an affidavit given by Rose Shaffer to him on the 26th of January, 1922, a month or more after a raid was made by police officers at the home of Rose Shaffer, on which occasion they seized narcotic drugs which she testified at the trial in this case were found at her house in a closet she rented to Solomon and Ferino. Scannell testified that he procured the affidavit on the 26th of January, 1922, and that about a week before the narcotic trial, which took place October 10, 1922, he saw her and went over the statement with her again. The witness was then shown a paper and testified it was the affidavit given by Mrs. Shaffer; that it was in his handwriting; and that he read it over to her two or three times before she signed it. The affidavit was then offered and received in evidence, the plaintiff in error having excepted to the questions leading up to its introduction and to the affidavit itself. The affidavit reads as...