United States v. Sutton, 22278.

Citation426 F.2d 1202,138 US App. DC 208
Decision Date07 November 1969
Docket NumberNo. 22278.,22278.
PartiesUNITED STATES of America v. Alexander SUTTON, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. John A. Terry, Washington, D. C. (appointed by this court), for appellant. Mr. William W. Greenhalgh, Washington, D. C., was also appointed by this court to represent appellant.

Mr. Julius A. Johnson, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, and Harold H. Titus, Jr., Asst. U. S. Atty., were on the brief, for appellee.

Before BURGER,* TAMM and ROBINSON, Circuit Judges.


This appeal, from convictions by a jury of first degree murder1 and the unlicensed carrying of a dangerous weapon,2 presents two questions for our consideration. The first is whether four writings, three purportedly authored by appellant, were sufficiently authenticated by their interrelated contents, the circumstances under which they were discovered, and a connecting note found on appellant's person to qualify them for admission into evidence at his trial. The second is whether the Government adduced enough evidence of premeditation and deliberation by appellant in connection with the alleged homicide to support a verdict of first degree murder guilt.3 We answer both questions in the affirmative, and accordingly affirm the convictions.


The Government's case against appellant4 featured two persons, Cornelius Hall, Jr., and Alfred Allen Brock, as eyewitnesses to the offensive events. These two, on March 13, 1967, first observed appellant and Matilda Glass, the deceased, as they alighted from an automobile and momentarily embraced. Suddenly appellant fired a shot, and Mrs. Glass screamed5 and fled the arms of her companion. He gave chase with a drawn revolver, and a short distance away she fell face forward.6 There appellant grabbed her, turned her over on her back, and at pointblank range fired two or three shots at her.7

The two witnesses rushed to seek assistance, hearing another shot as they left. They tried but were unable to locate a policeman, and soon came back to the scene to find appellant, revolver in hand, kneeling beside his victim. With even greater dispatch they again left in an effort to obtain aid, and this time succeeded in arranging a telephone call to the police. When they returned once more, police officers were there, and an assessment of the gruesome details was begun.

Mrs. Glass, struck by three bullets, either then was dead or died very shortly thereafter.8 Lying wounded nearby was appellant,9 a revolver under his right hand containing five expended cartridges and one that was live. Appellant was removed to a hospital, where seven more live cartridges were discovered in a pocket of his trousers.10

Found also, beside Mrs. Glass' body, was an envelope bearing these notations:11

From Alexander Sutton to daughter, Frances D. Sutton, JA 26671. Wife, Birdie Mal Sutton, 587-2456. Call them at once. Fort Lauderdale, Florida. My mother JA 22779.

Inside the envelope were four notes, three of which were received in evidence.12 The lengthiest of the three notes mentioned difficulties between the writer and "Matilda,"13 and indicated plainly enough that an ominous event was about to occur.14 This note also detailed dispositions of personal estate the writer desired to make, and designated relatives of the writer by names and telephone numbers identical to those appearing on the envelope.15 These features pointed to appellant as the penman, in a degree which was later to be judicially gauged. Another writing placed in evidence, also purportedly written by appellant, began with the words "read this other note," and identified one "Arthur" as the party who had "carried her home Sunday night."16 The third writing received, clearly not appellant's creation, was an amorous note ostensibly from "Arthur" to an unnamed addressee.17

There was, at the hospital to which appellant had been removed, another discovery which was to assume special importance at the trial. In the pocket of appellant's trousers was still another note, also let into evidence, which, as read into the trial transcript,18 was as follows:

Call Fort Lauderdale, Florida, JA 22779. Mother, Bessie Sutton, 587-2456. Wife, Birdie Neal Sutton. Daughter, Frances Sutton more numbers.19

The Government's proffer of the envelope and the notes in evidence was strenuously resisted on the ground, inter alia, that they were not properly authenticated. The trial judge, after entertaining extensive argument by counsel, overruled the objection and allowed the prosecutor to read the envelope's inscription and three of the notes to the jury.20 The judge also denied appellant's motion for a judgment of acquittal, presented at the conclusion of the Government's case in chief, and appellant then proceeded with his defense.

A witness, James Arthur Sewell,21 told of two conversations with the deceased in which she evinced a desire to arm herself with a gun.22 Appellant took the witness stand himself to relate the version of the affair that follows. He commenced living with the deceased in February, 1966, but toward the end of the year the romance soured when he came across the love letter from Arthur.23 He purchased a gun — the murder weapon, it developed — and ammunition for it in February, 1967; that gun, and one belonging to the deceased, resided in a dresser drawer in the apartment they occupied.24 The relationship became stormy when, shortly prior to her death, the deceased locked appellant out of the apartment and took a shot at him as he forcibly reentered.25 That incident landed the parties in court,26 but nonetheless they continued to live together.

Continuing, appellant testified that on the night of March 13 — the fatal date — there was a quarrel at the apartment. She threatened to "fix" him, and started to the bedroom. Fearing that she would get and perhaps use his gun, appellant himself took the gun, which he pocketed along with some cartridges and the envelope containing the notes, and left the apartment, only to be followed by her. Outside, she reached into his pocket for the gun, and in the tussle that ensued he was shot in the chest. He had no recollection of ever taking the gun from her, or of the manner in which she was shot.

The jury, as we have stated, returned verdicts finding appellant guilty of murder in the first degree and carrying a dangerous weapon. The jury could not, however, agree on the punishment to be imposed on the murder conviction. The trial judge sentenced appellant to life imprisonment on that conviction,27 and to a concurrent one-year term of imprisonment on the other. This appeal followed.


Ordinarily, documentary evidence possesses no self-authenticating powers;28 unaided by an operable presumption, its reliability is not automatically assumed. The legal requirement obtaining in normal contexts is that its genuineness be shown independently before it is accepted as proof.29 The contention is vigorously pressed upon us that the communications purportedly written by appellant and "Arthur" were not sufficiently authenticated prior to their submission for consideration by the jury. Our scrutiny of the record in the light of the authorities leads us to conclude that the writings were properly received in evidence.

Indubitably, the sufficiency of a showing of authenticity of a document sought to be introduced into evidence is a matter residing in the sound discretion of the trial judge.30 As is always true with discretionary exercises, there are discernible limits which judges must not transcend, but the judge's assessment of admissibility is vulnerable only if the error is clear.31 The applicable test to determine error is not whether the evidence of genuineness induces a belief beyond a reasonable doubt that the document is the handiwork of its alleged drafter, but whether, if it is uncontradicted, a reasonable mind might — though not necessarily would — fairly conclude favorably to the fact of authorship.32 In the case at bar, the contents of the questioned notes, conjoined with the circumstances surrounding their discovery, fashioned an adequate basis for the ruling admitting them in evidence.

We abide fully the usual judicial concession "that the mere contents of a written communication, purporting to be a particular person's, are of themselves not sufficient evidence of genuineness."33 Such a rule serves meaningfully as a protective device minimizing the occasion for fraud on the innocent and imposition on the courts. At the same time, we recognize the general proposition that authorship of writings may be shown by circumstantial evidence,34 among the components of which the contents of the writing may play a significant role.35 Circumstances beyond the four corners of a document may point with sufficient certitude to the person whose pen created it.36 Moreover, "in special circumstances, where the contents reveal a knowledge or other trait peculiarly referable to a single person, * * the contents alone may suffice,"37 and where a document, purportedly that of a particular person, makes reference to facts peculiarly known to him, the "manifest probabilities"38 that the document is his permit a logical conclusion that in actuality he is in fact the composer.39 The receipt of otherwise unauthenticated writings in evidence under such conditions adequately safeguards the policy considerations underlying the broad rule disfavoring authentication of writings solely on the basis of what they contain.


The situation before us is interlaced with artifacts pointing to appellant's hand in the generation and placement of the questioned writings.40 The envelope and the notes inside it were found beside the body of the deceased at the site of the...

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    • United States
    • U.S. Court of Appeals — Second Circuit
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    ...basis from which the jury may conclude that the exhibit did, in fact, belong to the appellants. See United States v. Sutton, 138 U.S.App.D.C. 208, 426 F.2d 1202, 1207 (1969) (while "mere contents" are ordinarily insufficient evidence of genuineness, contents may be considered in conjunction......
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3 books & journal articles
    • United States
    • Carolina Academic Press Understanding Evidence (CAP) Title Chapter 28 Authentication of Writings
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    • Carolina Academic Press Understanding Evidence (CAP) Title Chapter 28 Authentication of Writings
    • Invalid date
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