United States v. Alexander

• Decision Date: 17 January 1964
• Docket Number: No. 8981.,8981.
• Citation: 326 F.2d 736
• Parties: UNITED STATES of America, Appellee, v. Ernest Franklin ALEXANDER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

326 F.2d 736 (1964)

UNITED STATES of America, Appellee, v. Ernest Franklin ALEXANDER, Appellant.

No. 8981.

United States Court of Appeals Fourth Circuit.

Argued September 26, 1963.

Decided January 17, 1964.

Theodore A. Snyder, Jr., Greenville, S. C. (Court-assigned counsel), for appellant.

Charles Porter, Asst. U. S. Atty. (John C. Williams, U. S. Atty., on brief), for appellee.

Before BOREMAN and BRYAN, Circuit Judges, and NORTHROP, District Judge.

BOREMAN, Circuit Judge.

Appellant, Ernest Franklin Alexander, and one Robinson were charged in a two-count indictment with violations of the laws relating to the postal service.¹ The first count charged that Alexander and Robinson had taken from an authorized depository for mail matter a letter addressed to Sammie W. Woodall, 205 North Franklin Road, Greenville, South Carolina, containing a United States Treasury check made payable to the addressee. The second count charged the possession of the particular Treasury check which was the "contents" of the letter addressed to Sammie W. Woodall, with knowledge that the same had been stolen, taken or abstracted from an authorized depository for mail matter.² Alexander entered a plea of not guilty as to both counts and alone was tried before a jury. Upon his motion, the first count was dismissed as to him and the jury returned a verdict of guilty as charged in the second count. Defendant did not testify in his own defense. The admission, over objection, of certain evidence is challenged on appeal. We think that the defendant is entitled to a new trial.

It is uncontroverted that on the fourth day of February, 1963, two Greenville County Sheriff's deputies, in response to a telephoned tip from an undisclosed source, proceeded to a point on Furman Road in Greenville County, South Carolina, where they spotted Alexander and his co-indictee, Robinson, walking along the roadway. Robinson undertook to run away from the officers but was apprehended within a short distance and a check, not here involved, was taken from his person. Alexander offered no resistance and, at the officer's request, took a seat in the rear of the sheriff's car. McCall, one of the deputies, testified that while the other deputy was struggling with Robinson he saw Alexander, who was then seated in the sheriff's car, drop or throw a check out of the car. McCall stated that he retrieved the check and subsequently turned it over to McClure, a government postal inspector who was called in after Alexander and Robinson were taken to the sheriff's office.

There was no direct proof of the material allegations of the indictment. The Government relied entirely upon circumstantial evidence to prove that the check which Alexander had in his possession had been contained in a letter which was taken from an authorized depository for mail matter. A substantial part of that evidence was the testimony of Mrs. Sammie W. Woodall, a widow lady who lived approximately three-quarters of a mile from the spot where Alexander and Robinson were apprehended. She testified that she received each month from the United States a Social Security check made payable to her in the amount of $106.20; that the check came to her by United States mail and was delivered to the mailbox at her residence on the third day of each month, but when the third fell on Sunday the check was always delivered on Monday, the fourth; that on Monday, the fourth day of February, 1963, she left her home in the morning and upon her return in the afternoon the check which she was expecting to receive that day was not in the mailbox; that a check payable to her in the amount of $106.20 was subsequently delivered to her and she cashed it at a store; that she had never given any check to the defendant, Alexander. There was no direct evidence to show that the check, or a letter in which it was contained, had been stolen or taken from Mrs. Woodall's mailbox. Over timely objection by the defense, several government witnesses were permitted to testify as to the terms of the check and a copy of the check was admitted in evidence.

The first witness presented by the Government was C. V. McCall, Special Deputy Sheriff for Greenville County. In addition to his account of the circumstances of the arrest, McCall testified that when shown the check which he, McCall, had given the postal inspector, Alexander admitted having had it in his possession and throwing it from the car. Officer McCall described the check as follows: "It was to Sammie W. Woodall, 205 North Franklin Road, Greenville, South Carolina."

The postal inspector, Earl W. McClure, was the second government witness. He testified that after the defendant's arrest he went to the sheriff's office where he obtained from the arresting officers the check which Officer McCall had retrieved; that he showed the check, which he described as addressed to Sammie W. Woodall in the amount of $106.20, to Alexander who admitted having dropped the check out of the police car;³ that he subsequently caused the check to be delivered to the payee, Mrs. Sammie W. Woodall, with instructions to cash it; that while the check was in his possession he, McClure, attempted to have a copy made of it with a thermofax machine; that the machine did not reproduce the name and address of the payee and he typed those terms on the copy.⁴ The copy prepared by the postal inspector was admitted in evidence and the terms were read to the jury by the inspector.

The next witness called by the Government was Officer Shirley of the Greenville County Sheriff's office. After refreshing his memory from notations which he had made, he testified that, in his presence, the defendant admitted to Postal Inspector McClure that he had had in his possession a check which the witness described as payable "to Sammie W. Woodall, 205 North Franklin Road, Greenville, S. C., in the amount of $106.20."

The envelope from which the check was allegedly taken was not produced and apparently was not found. The check itself, although described in detail in the indictment, was not offered in evidence. The record indicates that the check was delivered to the alleged payee and, pursuant to instructions given by the postal inspector, was cashed by her. In the normal course of banking operations the check would have reached the drawee in Birmingham, Alabama. There is nothing in the testimony to show that the check could not have been produced at the trial.

It is the defendant's contention that the admission of the copy and the parol evidence to show the terms of the check, without the production of the check itself or a reasonable explanation of the Government's failure to produce it, violated the "best evidence rule" and constituted prejudicial error. The Government concedes that there was no sufficient foundation laid for the introduction of secondary evidence; it argues, however, that the evidence objected to was introduced to show the identity of a specific physical object, namely, the check, and hence its admission was not violative of the best evidence rule.

It has often been stated as a universal rule of evidence that the best evidence that is obtainable in the circumstances of the case must be adduced to prove any disputed fact. See, e. g., 1 Jones, Evidence § 199 (4th ed. 1938); 20 Am.Jur., Evidence § 403 (1958). Although the rule apparently enjoyed a broader application at one time, see IV Wigmore, Evidence § 1177 (3d ed. 1940), it is now generally recognized that the "best evidence" phrase denotes only the rule of evidence which requires that the contents of an available written document be proved by introduction of the document itself.⁵ So limited, there is no question as to the meaning of the rule. As stated in 20 Am.Jur., Evidence § 406 (1958):

"Where proof is to be made of some fact which is recorded in a writing, the best evidence of the contents of the writing consists in the actual production of the document itself. Any proof of a lower degree is secondary evidence which will be received as proof only where nonproduction of the writing is properly accounted for. The contents of a written instrument may not, as a general rule, be proved by parol, unless the failure to produce the paper itself is accounted for. The principle is controlling in every case wherein it is sought to prove the contents of written instruments of any kind whatsoever. * * * "

As defined by McCormick, the rule is that "in proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent." McCormick, Evidence § 196 (1954).

It would seem that this case, involving as it does secondary evidence of a writing, without any explanation of the failure to produce the writing itself, is within the mandate of the best evidence rule. The Government argues, however, that the rule is not applicable here because the purpose of the Government in offering the evidence was only to identify the check found in Alexander's possession. With this contention we cannot agree. It is true, as the Government urges, that the best evidence rule is aimed only at excluding evidence which concerns the contents of a writing and testimony as to other facts about a writing, such as its existence or identity, may be admissible. As stated in IV Wigmore, Evidence § 1242 (3d ed. 1940):

"The rule applies only to the terms of the document, and not to any other facts about the document. In other words, the rule applies to exclude testimony designed to establish the terms of the document, and requires the document\'s production instead, but does not apply to exclude testimony which concerns the document without aiming to establish its terms: * * *."

Here, however, the very purpose of the evidence objected to was to establish the terms of the check. The identity of the check could be established only by proof of its terms; the check was not...