United States v. Strassman

• Decision Date: 12 March 1957
• Docket Number: No. 247,Docket 24304.,247
• Citation: 241 F.2d 784
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leo STRASSMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

241 F.2d 784 (1957)

UNITED STATES of America, Plaintiff-Appellee, v. Leo STRASSMAN, Defendant-Appellant.

No. 247, Docket 24304.

United States Court of Appeals Second Circuit.

Argued February 6, 1957.

Decided March 12, 1957.

Paul W. Williams, U. S. Atty., for the S. D. of New York, New York City (Clement J. Hallinan, Jr., Robert Kirtland and Mark F. Hughes, Jr., Asst. U. S. Attys., New York City, of counsel), for plaintiff-appellee.

Matthew H. Brandenburg, New York City, for defendant-appellant.

Before CLARK, Chief Judge, MEDINA, Circuit Judge, and SMITH, District Judge.

MEDINA, Circuit Judge.

Appellant, the Master at Arms on board the "S.S. Independence" was found guilty of "assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse," in violation of 18 U.S.C. § 113(c). Appellant received a suspended sentence of nine months imprisonment, and was put on probation for one year. His appeal is based principally upon the fact that the ship's log through inadvertence found its way to the jury room with the exhibits although certain portions of the log had been held not to be admissible, and the document was marked Exhibit #6 for identification only. It was the ruling of the trial judge that so much of the log as had been received in evidence be read to the jury, which was done during the trial; but the excluded parts were not blocked out or deleted. A variety of other miscellaneous rulings are also assigned as grounds for reversal.

The case involved a simple issue of veracity. There is no dispute about the fact that while the "S.S. Independence" was at anchor in Genoa, Italy, Jim Happy, a first-class deck steward was so severely injured when he came in contact with a steel chair in the possession of appellant that the wound above Happy's eye required three internal and eight external stitches. He also suffered two black eyes. Appellant claimed at the trial that he was holding the chair up to protect himself against an unprovoked attack. But others, including Happy, testified that appellant entered Happy's cabin spoiling for a fight and went after him, hitting Happy on the head with the chair and punching him.

Judge McGohey, in what we hold to be an unexceptionable charge to the jury, followed the language of the statute, left it to the jury to decide the conflict in the evidence, and also instructed them to determine "whether or not that chair in the hands of a man of the defendant's size was a dangerous weapon." Appellant weighed some 218 pounds. Under the instructions as given the jury could have found appellant guilty of the crime charged only after being persuaded beyond a reasonable doubt that appellant had assaulted Happy, with intent to do bodily harm and without any just cause or excuse, and also that the steel chair under the circumstances was a dangerous weapon.

Immediately after the occurrence the Master of the "S.S. Independence" caused an investigation to be made and entered the results in the log, which was then read in its entirety to appellant, and his reply was also entered in the log, to which appellant then affixed his signature. The substance of appellant's reply was that he entered Happy's cabin to obtain a combination lock which had been loaned to one of the seamen, and that he "did not assault Happy physically. * * * The only assault was words." Under these circumstances we believe the entire log was admissible; but Judge McGohey ruled out the words, "Strassman was definitely the aggressor," a reference to appellant having "again entered Happy's room, and threatened Happy in a belligerent manner" while the investigation was going on, that he was warned to stay clear of Happy or he would be put in the brig, and the statement, "For assaulting another crew member Strassman is hereby fined two days' pay on his monthly wage of $314.41. Total amount of fine $20.96."

The remainder of the log, which was read to the jury without objection by defense counsel, makes it sufficiently plain, we think, that the investigation disclosed appellant as the aggressor. A letter from appellant to the Shipping Commissioner in New York, sent from Naples, Italy, on June 4, 1955, two days after Happy received his injuries, was received in evidence without objection, and in it appellant refers to the fact that he was fined two days' pay. From the context of this letter the inference is inescapable that appellant was found to be the aggressor and that he was fined because of his unprovoked assault. The fact that the excluded parts of the log found their way into the jury room would thus seem to be of little consequence.

Moreover, this letter of June 4, 1955, together with other statements made by appellant prior to the trial, support the admissibility of the entire log, including appellant's self-serving declaration and signature, as an integral part of a series of wholly inconsistent and damaging explanations by appellant of how Happy's head was cut open on June 2, 1955. Without the entire log this series of admissions by appellant is incomplete. Thus when shown the log which not only portrays appellant as the aggressor but as having gone back to Happy's cabin for a further encounter, thus bringing upon himself the threat that, in...