Spaeth v. United States, 12669.

• Decision Date: 01 May 1956
• Docket Number: No. 12669.,12669.
• Citation: 232 F.2d 776
• Parties: Dr. Alexander V. SPAETH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

232 F.2d 776 (1956)

Dr. Alexander V. SPAETH, Appellant, v. UNITED STATES of America, Appellee.

No. 12669.

United States Court of Appeals Sixth Circuit.

May 1, 1956.

Timothy F. McMahon, William J. Corrigan, Cleveland, Ohio, John C. Ray, Detroit, Mich., on brief, for appellant.

James J. Carroll, Sumner Canary, Cleveland, Ohio, Russell E. Ake, Canton, Ohio, on brief, for appellee.

Before SIMONS, Chief Judge, and MARTIN and STEWART, Circuit Judges.

MARTIN, Circuit Judge.

This is the second appeal by Dr. Alexander V. Spaeth from a judgment of conviction and sentence on the verdict of a jury, finding him guilty of perjury.

The opinion of this court on the first appeal, reversing the judgment of the district court and remanding the case for a new trial, is published in 6 Cir., 218 F.2d 361. We held, among other things, that the defendant was entitled to an instruction based on Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, to the effect that, in prosecutions for perjury, the uncorroborated testimony of one witness is insufficient to establish the falsity of the testimony of the accused set forth in the indictment. We declared the rule to be that, in perjury cases, the falsity of the testimony cannot be proved by circumstantial evidence alone.

In the instant controversy, appellant asserts that the trial judge incorrectly charged the jury that: "Circumstantial evidence alone, when it satisfies the minds of the jury beyond a reasonable doubt, is sufficient to warrant conviction." But the judge also charged the jury that the element of falsity must be established, either by the testimony of two witnesses, or by that of one witness and other corroborating facts or circumstances to satisfy the jury beyond reasonable doubt that the statements of the defendant under oath were in fact false.

It is true, of course, that a reviewing court should not pick out one erroneous paragraph of a long charge and reverse upon it, if, upon consideration of the entire charge, it appears that the jurors were correctly instructed as to the applicable law in such manner as to leave no confusion in their minds. We cannot say that the jurors here may not have been confused by the conflicting statements as to the unique and stringent burden of proof to be carried by the Government in perjury cases; but we do not base reversal upon that proposition. We suggest, however, that, upon a re-trial, there shall be omitted from the charge the statement that a conviction is warranted upon circumstantial evidence alone, when it satisfies the minds of the jury beyond a reasonable doubt as to the guilt of the accused.

The judgment of the district court must be reversed and a new trial granted for the reason that it was reversible error to shut off the cross-examination of Joseph John Sanzo, in whose behalf Dr. Spaeth had testified as an alibi witness. Sanzo was convicted of the crime of bank-robbery, notwithstanding the testimony of Dr. Spaeth.

On direct examination by the Government attorney at Dr. Spaeth's trial, Sanzo identified the defendant in the court-room and testified that the witness had not been in the doctor's office on August 14, 1952; and that he recalled the particular date for the reason that it was the day on which he had been "picked up" on his "case." On cross-examination by defendant's attorney, Sanzo was not permitted by the court to testify that he had been tried in the federal court for a crime; what the "case" was which he had mentioned in his direct testimony; whether he had appeared as a witness in his own behalf; whether he was in Cleveland on August 14, 1952; and whether he knew a man named Harry K. Peterson. The record shows that the attorney for defendant Spaeth, out of the hearing of the jury, offered to prove that, if permitted to answer, the witness, Sanzo, would have testified that he had been tried for the crime of bank-robbery, had been "picked up" on August 14, 1952, for that crime; that he had been in Cleveland on August 14, 1952; that he had not testified in his own behalf; that he had been sentenced in 1952; that he was confined in a federal institution; and that he had produced as a witness at his trial Harry K. Peterson who testified...