Sullivan v. United States

• Decision Date: 04 September 1928
• Docket Number: No. 5317.,5317.
• Citation: 28 F.2d 147
• Parties: SULLIVAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

28 F.2d 147 (1928)

SULLIVAN v. UNITED STATES.

No. 5317.

Circuit Court of Appeals, Ninth Circuit.

September 4, 1928.

James M. Hanley and N. C. Coghlan, both of San Francisco, Cal., for plaintiff in error.

George J. Hatfield, U. S. Atty., T. J. Sheridan, Asst. U. S. Atty., and George M. Naus, Asst. U. S. Atty., all of San Francisco, Cal.

Before RUDKIN, DIETRICH, and HUNT, Circuit Judges.

RUDKIN, Circuit Judge.

Four persons were implicated in a mail robbery at San Francisco on April 7, 1924. Three of the parties thus implicated pleaded guilty to the charge and were sentenced to imprisonment in the United States penitentiary at Ft. Leavenworth, Kan., for a term of 25 years each. Later the plaintiff in error was indicted as the fourth party to the crime, and the present writ of error was sued out to review a judgment of conviction. About three weeks before the trial the three prisoners confined at Ft. Leavenworth signed a statement to the effect that each of them took some part in the mail robbery; that the plaintiff in error also took some part, driving the automobile used by the robbers a portion of the time; that the plaintiff in error received his portion of the stolen money, and that the prisoners desired to have a personal interview with the United States attorney before they were expected to testify. Statements of a similar import had previously been made by the prisoners to one or more of the post office inspectors.

During the progress of the trial, one of the prisoners was called as a witness for the government, and testified that he was a prisoner at Ft. Leavenworth, that he had pleaded guilty to the crime for which the plaintiff in error was on trial, that he never had any conversation with him, and that he did not see him at the time of the robbery. The attorney for the government thereupon stated to the court that he was taken completely by surprise by the testimony given by the witness and asked for an adjournment until afternoon. This request was granted, and at the afternoon session the attorney for the government was granted permission to cross-examine his own witness as to his previous statements, and was likewise permitted to call other witnesses to prove the previous statements made by the prisoner, implicating the plaintiff in error in the commission of the crime.

The other two witnesses were then called in succession, and each testified the same as the former witness, and each was subjected to cross-examination and impeachment in the same manner.

The admission of this testimony is the principal error assigned. The plaintiff in error contends that no foundation was laid for the impeachment of the witnesses by stating the time and place and persons present, while the defendant in error contends that the objection to the testimony was insufficient. Neither contention is well founded. While no proper foundation for the impeachment was laid, the record clearly shows that the witnesses fully understood the import of the questions asked and the statements and conversations referred to, and while the objection to the testimony in the first instance was general the court and counsel for the government fully understood the nature of the objection and the reason therefor.

Whether a party may impeach his own witness by proving by other witnesses contradictory statements attributed to him has been the subject of much diversity of opinion and the occasion for many statutes. In Hickory v. United States, 151 U. S. 303, 14 S. Ct. 334, 38 L. Ed. 170, the court said:

"When a party is taken by surprise by the evidence of his witness, the latter may be interrogated as to inconsistent statements previously made by him for the purpose of refreshing his recollection and inducing him to correct his testimony; and the party so surprised may also show the facts to be otherwise than as stated, although this incidentally tends to discredit the witness. As to witnesses of the other party, inconsistent statements, after proper foundation laid by cross-examination, may be shown (Chicago, M. & St. P. R. Co. v. Artery, 137 U. S. 507 11 S. Ct. 129, 34 L. Ed. 747); but proof of the contradictory statements of one's own witness, voluntarily called and not a party, inasmuch as it would not amount to substantive evidence and could have no effect but to impair the credit of the witness, was generally not admissible at common law. Best, Ev. ? 645; Whart. Ev. ? 549; Melhuish v. Collier, 15 Q. B. 878.

"By statute in England and in many of the states, it has been provided that a party may, in case the witness shall in the opinion of the judge prove adverse, by leave of the judge, show that he has made at other times statements inconsistent with his present testimony, and this is allowed for the purpose of...