United States v. Fay

• Decision Date: 17 May 1927
• Docket Number: No. 1488.,1488.
• Citation: 19 F.2d 620
• Parties: UNITED STATES v. FAY.
• Court: U.S. District Court — District of Idaho

19 F.2d 620 (1927)

UNITED STATES v. FAY.

No. 1488.

District Court, D. Idaho, S. D.

May 17, 1927.

H. E. Ray, U. S. Atty., and Sam S. Griffin, Asst. U. S. Atty., both of Boise, Idaho.

J. P. Pope and Morgan & Smith, all of Boise, Idaho, for defendant.

CAVANAH, District Judge.

The defendant was proceeded against by information, charging him in seven counts with violations of the National Prohibition Act (Comp. St. § 10138¼ et seq.). A trial was had, and the jury returned a verdict of guilty on four counts, and a disagreement on three. Sentence to imprisonment in the county jail of Cassia county and a fine of $400 was then pronounced. On March 22, 1927, the defendant moved for a new trial, and the matter is now presented on his petition therefor.

The assignments of error on the motion present for consideration two questions: Whether the court erred in sustaining the government's objection to the question propounded by counsel for the defendant on cross-examination of the witness Jeppson, wherein he was asked if he was not convicted of a crime in Utah about a year ago. The court announced at the time of its ruling that the inquiry should be limited to the conviction of a felony.

On July 3, 1890, the date of the admission into the Union of Idaho territory, it was not proper to show that a witness was convicted of a crime other than a felony. The statute then provided:

"A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony." Rev. Stats. Idaho 1887, § 6082.

This statute has existed in Idaho ever since. Comp. Stats. Idaho 1919, § 8038. The rule of evidence prevailing in a territory at the time it comes into the Union and continuing until the trial, limiting the inquiry to a felony, is the one that the federal courts adopt. In the case of Louie Ding v. U. S. (C. C. A.) 247 F. 12 (9th Circuit), the court said: "We are of the opinion that the exclusion of the offered witness was erroneous, in that the court should not have determined the competency of the witness by the rules of the common law as in force in the respective original states of the Union when the Judiciary Act of 1789 1 Stat. 73 was passed, but should have applied the rules which governed the competency of witnesses and the admissibility of evidence in force within the territory of Washington when that territory was admitted to the Union." Neal v. U. S. (C. C. A.) 1 F.(2d) 637.

It would seem that under all of the authorities the inquiry must be limited to the purpose of affecting the credibility of the witness, and such purpose should be stated at the time the question is asked. We do not find here any purpose of the inquiry being announced at the time the question was asked. Attention is called by the defendant to the case of Merrill v. U. S. (C. C. A.) 6 F.(2d) 120, in support of this assignment of error. That was a case which arose and was tried in the state of Oregon, and defendant was asked upon cross-examination, for the purpose of affecting his credibility as a witness, whether he had been convicted of a misdemeanor for violating the liquor laws of the state some thirteen years before. The court stated:

"In some jurisdictions, the proof is limited to the conviction of crimes such as would disqualify the witness at common law; in others, the crime must rise to the dignity of a felony, while in still others the rule extends to crimes of every degree, except perhaps the violation of municipal ordinances. The latter rule has prevailed in the state of Oregon from a very early day. State v. Bacon, 13 Or. 143 9 P. 393, 57 Am. Rep. 8. Such proof, when admitted, should be strictly limited to the single purpose for which it is admitted; but there was in this case no request to limit the consideration of the testimony to any particular purpose, either at the time of its admission or in the general charge of the court."

See, also, Mitrovich v. U. S. (C. C. A.) 15 F.(2d) 163.

It seems clear that the decision is based upon the thought that the court had in mind the rule of evidence prevailing in the state of Oregon at the time it came into the Union, as the court says that the rule extending the evidence to crimes of every degree has prevailed in the state of Oregon from a very early day, and cites a decision of that state, recognizing that to be the doctrine in the state of Oregon.

The case of Smith v. United States (C. C. A.) 10 F.(2d) 787, relied upon by the defendant, was where the prosecution was permitted by the trial court in rebuttal to prove by two witnesses that the accused had on other occasions been engaged in the business of selling narcotics, which was held to be error. The court there, in using the expression, "To impeach his testimony he might properly have been asked whether he had been convicted of a crime, and, if he denied that he had been convicted, it would have been permissible to produce the record in rebuttal," did not have before it the question here as to whether the rule of evidence prevailing in the territory at the time of its admission into the Union should be adopted.

My conclusion as to the first assignment of error is that a witness may be asked on cross-examination, for the honest purpose of affecting his credibility, whether he has been convicted of a felony, and the questioner is bound by the reply, unless the record of conviction is produced.

The defendant in his second assignment of error challenges the correctness of the instruction given to the jury to the effect that the defense interposed was an alibi. It is contended that, while there were seven counts in the information, no suggestion is made in the instruction as to which offense reference is made by the expression that "the commission of the offense charged in the information" used therein, and further that the expression "the defense in this case is what is known in law as an alibi," limited the defense to an alibi defense, and by it the minds of the jurors were directed away from all the evidence that no offense at all was committed. And it is further objected that the instruction, if applicable to the theory of the defense of an alibi, should have stated that to constitute an alibi the evidence should show that the defendant was so far from the place where the crime was alleged to have been committed that it was impossible for him to have participated in it. These objections call for a consideration of the form of the instruction, together with the other instructions given and the evidence offered by the defendant. The instruction is as follows:

"The defense in this case is what is known in law as an `alibi'; that is, that the defendant was not present at the time and place of the commission of the offense charged in the information, if such offense has been committed, but he was at that time at another and different place. As to this defense, it is not necessary for the defendant to prove an alibi to your satisfaction, beyond a reasonable doubt, nor by a preponderance of the testimony; but if, after a full and fair consideration of all the facts and circumstances in evidence, you entertain a reasonable doubt as to whether or not the defendant was present at the time and place of the commission of the offense charged in the information, if such offense has been committed by any one, it will be your duty to give the defendant the benefit of such doubt and acquit him; but if you believe from all of the evidence and circumstances in this case beyond a reasonable doubt that the plea of an alibi was not interposed in good faith or that the evidence to sustain it was false and fraudulent, then this is a discrediting circumstance to which you may look in connection with all the other evidence in determining the guilt or innocence of the defendant."

It will first be observed that, as the jury in their verdict disagreed upon the three counts relating to the charges occurring on October 1, 1926, no contention is made on the motion that the instruction could have prejudiced the defendant as to those charges, and therefore the consideration as to the proper...