Townsend v. United States, 6847-6849

• Citation: 106 F.2d 273
• Decision Date: 08 August 1939
• Docket Number: No. 6847-6849,No. 6905.,6847-6849,6905.
• Parties: TOWNSEND et al. v. UNITED STATES (two cases). FRIEDMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

106 F.2d 273 (1939)

TOWNSEND et al. v. UNITED STATES (two cases). FRIEDMAN v. UNITED STATES.

Nos. 6847-6849, No. 6905.

Circuit Court of Appeals, Third Circuit.

August 8, 1939.

Zeno Fritz and Frank J. Zappala, both of Pittsburgh, Pa., for appellants.

Charles F. Uhl, U. S. Atty., and John D. Ray, Asst. U. S. Atty., of Pittsburgh, Pa.

Before BIGGS, MARIS, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

The evidence in the two appeals sub judice reminds us of the famous description of the annual ball of the Mulligan Association. According to the well-known contemporary historian, M. R. Werner, a Tammany Judge at that fiesta "led through the happy mazes of the grand march a thousand pimps * * * and prostitutes, to the blatant crying of the band", McClure's Magazine, Vol. 33, p. 132; Werner, Tammany Hall, p. 501. We quote that phrase because the record discloses that the appellants do not cavil at the characterization. They concede, as we understand it, that three adjoining houses of prostitution were being operated in Alliance, Ohio in the winter of 1937. They a fortiori, so to speak, also admit that these institutions were furnished with the usual appurtenances, namely, madams and girls. One of the former is the defendant-appellant Elizabeth Townsend, alias Virginia Hines. Two of the latter are co-indictees who pleaded guilty and appear as witnesses in the cause. The category of pimps includes the defendant-appellant Friedman while defendant-appellant Martin is slated in the more specialized role of owner-operator and general handy man. Of the remaining co-indictees four pleaded guilty, five were found guilty and have not appealed.

The defendant-appellants shape their contentions to the particular charge, conspiracy to violate (and, except for Martin, violation of) the so-called Mann Act, 18 U.S.C.A. § 398. In other words, they direct their denials to "how the girls got there." Of this transportation or any part of it, they claim both ignorance and innocence. We are not going to perpetuate, even for the too little-read Federal Reporter, the sordid details that were spread before the trial judge and jury. Suffice it to say that they were convincing to both agencies of the criminal process (a motion for a directed verdict and a new trial were denied, R. 96, 157, 158, T.R. 40, 44). We confine ourselves therefore to a consideration of the principal errors of law relied upon, dividing our discussion according to the particular appeals.

Townsend and Martin

We are somewhat surprised at both sides' approach to the error at law here asserted. It lies in the introduction in evidence of the statements of the two prostitutes and co-indictees, Donaldson and Smith. These statements were made orally and in writing to one DiLillo of the F. B. I. and were both recited and produced by him, R. 24-32, 42-44. Appellants stress only the utterances of Smith because those of Donaldson are not damaging to them. The District Attorney with, as we think, more zeal than judgment, offered these statements as coming from co-conspirators. The only trouble with this position is that they are plainly not in furtherance of the conspiracy and are probably (being to a government agent) made after it had ended. This, the prosecution now concedes. It argues, however, with but meager resort to authority that the error was completely cured by the fact that Smith later took the stand and testified consistently with her extra-judicial statement. In reply, counsel for the defendant-appellants are content to cite us a case, Brady v. United States, 8 Cir., 39 F.2d 312, which contains no adequate discussion of the reason for the court's action, and involves besides a distinction in the rule for which he seems to be groping.

That rule has been long established and is supported by a multitude of authorities, all, we should have thought, easily available. They are to be found collected under the title "Witnesses" in the various aids to legal research, 70 C.J. § 1369, pp. 1183 et seq.; 30 Am. & Eng. Ency. of Law pp. 1145 et seq.; 43 Vale Pennsylvania Digest, Witnesses, West System, pp. 406 et seq. The heading is appropriate and is "prior consistent statements". Under it, we find numerous Federal cases in our opinion better reasoned than Brady v. United States above cited. The leading ones seem to be, Southern Pacific Co. v. Schuyler, 9 Cir., 135 F. 1015; Boykin v. United States, 5 Cir., 11 F.2d 484; Mansfield Hardwood Lumber Co. v. Horton, 8 Cir., 32 F. 2d 851; Dowdy v. United States, 4 Cir., 46 F.2d 417; Yoder v. United States, 10 Cir., 71 F.2d 85.

If a rule of evidence is well established it may serve only a pedantic purpose to indulge in any extended discussion of the logic behind it. We should rather have said that it used to serve only such a purpose. The legislative branch has, most wisely as we think, compelled the courts to adopt an attitude more consistent with the welfare of the general public and less tender towards the imaginary disadvantage of the accused. The policy prescribed for the Federal courts by the Act of February 26, 1919, Chapter 48, 40 Stat. 1181, is expressed in this language: "* * * 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." 28 U.S.C.A. § 391.

Behind this enactment lies an almost century old controversy over the principle that should govern the granting or denial of new trials for error in the admission or rejection of evidence. Under the orthodox rule at common law, such error was disregarded unless it appeared to the reviewing court that truth had not been reached in the trial below. Under the so-called Exchequer rule, on the other hand, any error that could have possibly affected the jury automatically required reversal, 1 Wigmore on Evidence, § 21. The orthodox and (we speak with vague surprise) liberal view has been almost universally accepted by legislators wherever the system of jury trial obtains. See Hebert, The Problem of Reversible Error in Louisiana, 6 Tulane Law Review 168, 169, note 7; 1 Wigmore on Evidence, § 21, above cited, note 17. The most famous statute is British, being Order 39, Rule 6 of the Supreme Court, promulgated in 1883 under the Judicature Act of 1875. It reads: "A new trial shall not be granted on the ground of misdirection or the improper admission or rejection of evidence * * * unless in the opinion of the court to which application is made some substantial wrong or miscarriage has been thereby occasioned in the trial." And its effect may be observed in the following cases; R. v. Peter Meyer, 1 Cr.App.R. 10; R. v. A. E. Dyson, 1 Cr.App.R. 13; R. v. Joseph Solomon, 2 Cr.App.R. 80; R. v. William J. Foy, 2 Cr.App.R. 121; R. v. Charles Cutting, 2 Cr.App.R. 151; R. v. Max Cohen and Leonard Nelson Bateman, 2 Cr.App.R. 197, 207; R. v. Thomas Kirkham, 2 Cr.App.R. 253, 255; R. v. Henry Beecham, 16 Cr.App.R. 26, 28; R. v. Wilcock, 16 Cr.App.R. 96, 102. The long and tedious legislative history of the Federal statute, 44 Reports of the American Bar Association 62, began with an unsuccessful attempt from 1909 to 1911 of the American Bar Association to persuade the Congress, and particularly the Judiciary Committees of the House and Senate, to adopt the English model. 33 Reports of the American Bar Association 542, 550; 34 Reports of the American Bar Association 578, 35 Reports of the American Bar Association 615, 620. The legislators, however, preferred the slightly less positive language which eventually became law, 36 Reports of the American Bar Association 448, 466. That language, we note, closely parallels section 640 of David Dudley Field's draft for a code of criminal procedure, proposed in 1849 and finally adopted by the New York Legislature in 1881 (New York Code of Criminal Procedure, section 542).

Students of criminal justice universally approve the old common law and new statutory rule. In fact, they criticize the courts for failing to live up to its spirit and purpose. Amidon, The Quest for Error and the Administration of Justice, 40 American Law Review 681; Sunderland, The Problem of Appellate Review, 5 Texas Law Review 126, 146-148; Wheeler, Procedural Reform in the Federal Courts, 66 University of Pennsylvania Law Review 1; Baldwin, The Artificiality of Our Law of Evidence, 21 Yale Law Journal 105, 113; Wigmore, Reversible Error, 19 Journal of American Judicature Society 28; 22 Michigan Law Review 591 (note). A recent writer has summed up this failure as follows: "The problem of prejudicial error is a problem in professional psychology. No rules can be framed which will solve it, for rules can only be drawn in general terms, and it is in the interpretation of the rules that the difficulty comes." Sunderland, The Problem of Appellate Review, above cited, at p. 146.

The rules of evidence embody the legal community's conception of the soundest method of eliciting that for which the judicial machinery is set up — the truth. As such, the failure to observe them imports a corresponding failure in elicitation. Obviously, these failures may be in varying degrees of gravity. As the legislative policy we have just considered commands us to emphasize gravity, we do so in this instance.

The prior consistent statement is, by hypothesis, improper as proof of the facts stated. By the same token, it may be admissible for the purpose of testimonial rehabilitation. The courts have differed on exactly when, first, that rehabilitation is necessary and, second, when the prior consistent statement does anything to accomplish it, 2 Wigmore 1128 et seq.; 70 C.J. 1369 et seq. They are all, however, agreed on such cases as impeachment by bias, interest or corruption, or to offset motive, recent fabrication, or contrivance, 2...