Thompson v. United States

• Decision Date: 28 September 1922
• Docket Number: 2905.
• Citation: 283 F. 895
• Parties: THOMPSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

283 F. 895

THOMPSON v. UNITED STATES.

No. 2905.

United States Court of Appeals, Third Circuit.

September 28, 1922

John H Kafes and Martin P. Devlin, both of Trenton, N.J., for plaintiff in error.

Walter G. Winne, U.S. Atty., of Hackensack, N.J., and Frederic M. P Pearse, Asst. U.S. Atty., of Newark, N.J.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS Circuit Judge.

The plaintiff in error, hereinafter called defendant, was convicted for selling intoxicating liquor in violation of the National Prohibition Act (41 Stat. 305).

The defendant relies on the fifth, sixth, and ninth assignments of error, which may be compressed into two propositions: (1) Upon the trial of a person for one crime, evidence that he is guilty of other crimes is inadmissible; and (2) the court erred in its charge on reasonable doubt.

The indictment charged that the defendant sold intoxicating liquor at Trenton, N.J., on or about the 11th day of March 1921. Richard C. Whitehead testified that he got a drink of whisky in the defendant's saloon at 14 South Warren street, Trenton, on a Thursday somewhere around the 1st of March, 1921. The trial judge asked the witness if he had been 'in this place before' and 'had drinks there,' and he replied that he had 'on a couple of other occasions,' and that he had seen others get drinks there. Under cross-examination by the district attorney he testified as follows:

'Q. You say that you were there both the week preceding that and the week following that? A. The week preceding.

'Q. We are now speaking of the 3d or 4th of March. This day that you speak of, when you say that it was the Thursday nearest the 1st of March. You were also there shortly before that? A. Yes, sir.

'Q. And on those occasions you also bought drinks? A. Not always.

'Q. Before that you did? A. Yes, sir, before.'

The general rule of law, with certain exceptions collected in the case of People v. Sharp, 107 N.Y. 427, 14 N.E. 319, 1 Am.St.Rep. 851, is that on a prosecution for a particular crime, evidence, which shows or tends to show that the accused has committed another crime wholly independent of that for which he is being tried, even though it is a crime of the same character, is irrelevant and inadmissible, for it affords no legal presumption or inference as to the particular crime charged, and may be prejudicial to defendant. Boyd v. United States, 142 U.S. 450, 12 Sup.Ct. 292, 35 L.Ed. 1077; Fish v. United States, 215 F. 544, 132 C.C.A. 56, L.R.A. 1915A, 809; State v. Hendrick et al., 70 N.J. Law, 41, 45, 56 A. 247.

No objection was made to the admission of the testimony made the basis of these two assignments. Subject to certain exceptions (where the court is without jurisdiction on account of lack of proper parties, Chapman v. Barney, 129 U.S. 677, 9 Sup.Ct. 426, 32 L.Ed. 800; requisite amount involved, Cochran v. Childs, 111 F. 433, 49 C.C.A. 421; authorized place where trial was held, Armstrong v. Loveland, 99 A.D. 28, 90 N.Y.Supp. 711; or, where the life or liberty of citizens is at stake, in criminal cases, and gross errors, resulting in the miscarriage of justice, are committed, Wiborg v. United States, 163 U.S. 632, 658, 16 Sup.Ct. 1127, 1197, 41 L.Ed. 289; Crawford v. United States, 212 U.S. 183, 194, 29 Sup.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; Weems v. United States, 217 U.S. 349, 362, 30 Sup.Ct. 544, 54 L.Ed. 793, 19 Ann.Cas. 705) not here involved, it is a rule of law of almost universal application that questions, not raised and properly preserved in the trial court for review, will not be considered on appeal. Any other rule would be unfair to the trial judge. One of the objects of an exception is to call his attention to the precise point in which he is supposed to have erred, in order that he may then and there consider it and change his ruling or instruction if he thinks, in the light of an objection, that he should do so. Beaver v. Taylor et al., 93 U.S. 46, 55, 23 L.Ed. 797. So that cases may not be considered and disposed of by the appellate court upon questions not brought to the attention of the trial judge, but evolved from the record by mature study of astute counsel. Robinson & Co. v. Belt, 187 U.S. 41, 45, 23 Sup.Ct. 16, 47 L.Ed. 65.

These cases were decided prior to the act of February 26, 1919 (40 Stat. 1181), amending section 269 of the Judicial Code (Comp. St. Ann. Supp. 1919, Sec. 1246). That act provides that:

'On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.'

We cannot assent to the proposition that the act 'commands' (August v. United States, 257 F. 388, 168 C.C.A. 428) us to consider questions raised for the first time on appeal. The purpose of the act is the due administration of substantial justice. It accordingly conferred upon courts the statutory right to consider plain errors not assigned or specified. This act is simply declaratory of the right preserved in rule No. 21 of the Supreme Court and in the rules of courts generally. In Frey & Son, Inc., v. Cudahy Packing Co., 256 U.S. 208, 41 Sup.Ct. 451, 65 L.Ed. 892, decided April, 1921, the Supreme Court disposed of the case on a point not raised below, without any mention whatever of the act, and Mr. Justice Pitney, in a dissenting opinion in which Mr. Justice Day and Mr. Justice Clarke concurred, admirably stated the law on this subject as follows:

'It is elementary that, in order to lay foundation to review by writ of error the proceedings of the courts of the United States in the trial of commonlaw actions, the questions of law proposed to be reviewed must be raised by specific, precise, direct and unambiguous objections, so taken as clearly to afford to the trial judge an opportunity for revising his rulings; and that a bill of exceptions not fulfilling this test will furnish no support for an assign ment of error.'

But it does not appear that if objection had been made and exception to the admission of the testimony seasonably taken, the judge committed error. The indictment charged that--

'On or about the 11th day of March, 1921, at Trenton, * * * John L. Thompson unlawfully did knowingly and willfully sell for intoxicating beverage purposes certain intoxicating liquor, to wit, whisky,' etc.

The averment that the crime was committed 'on or about the 11th day of March' did not limit the commission of the offense or offenses to that precise day. It might have been committed on that very day or at a time near that day. United States v. McKinley et al. (C.C.) 127 F. 168. 'The common understanding of the words 'on or about,' when used in connection with a definite point of time, is that they do not put the time at large, but indicate that it is stated with approximate accuracy.' 3 Words and Phrases Judicially Defined, Second Series, 727. Some of the cases hold that the words not only do not indicate a precise time, but the time is so indefinite and uncertain as to render the indictment bad. Morgan v. State, 51 Fla. 76, 40 So. 828, 7 Ann.Cas. 773; United States v. Winslow, Fed. Cas. No. 16,742, but the weight of authority is that the allegation that a crime was committed 'on or about' a certain date is sufficient, though the precise time is not thereby stated, except in cases in which time is an ingredient of the offense. Such allegation is a formal and not a material matter within the meaning of section 1025 of the Revised Statutes (Comp. St. Sec. 1691), which provides that no indictment shall be deemed insufficient by reason of any defect in matter of form only. United States...