Vendetti v. United States, 6159.

• Decision Date: 24 November 1930
• Docket Number: No. 6159.,6159.
• Citation: 45 F.2d 543
• Parties: VENDETTI v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

45 F.2d 543 (1930)

VENDETTI v. UNITED STATES.

No. 6159.

Circuit Court of Appeals, Ninth Circuit.

November 24, 1930.

Charles H. Miller, of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., and Cameron Sherwood, Asst. U. S. Atty., both of Seattle, Wash., and John T. McCutcheon and Joseph A. Mallery, Asst. U. S. Attys., both of Tacoma, Wash.

Before RUDKIN and WILBUR, Circuit Judges, and KERRIGAN, District Judge.

RUDKIN, Circuit Judge.

This is an appeal by one of several defendants from a judgment of conviction under an indictment charging, in different counts, conspiracy to violate the National Prohibition Act, numerous violations of that act, and prior convictions as to some of the defendants.

The first assignment of error is based on a ruling of the court excluding certain affidavits offered by the appellant. In the course of the trial, one of the prohibition agents was cross-examined at considerable length in respect to his relations with a number of young girls in the vicinity of Everett, Wash. Apparently the questions thus propounded were based on affidavits in the possession of counsel for the accused, and in the course of the examination the witness declared that these affidavits had been repudiated by the parties by whom they were made. The affidavits were afterwards offered in evidence in rebuttal, with the result already stated. We know of no principle of law or rule of evidence that would justify the admission of such ex parte affidavits. In the first place, an unusual latitude was allowed in the cross-examination of the witness. State v. Belknap, 44 Wash. 605, 87 P. 934. But whether the course thus pursued was proper or improper we need not inquire, because all of the authorities agree that the answers of the witness to these collateral question were binding on the appellant, and, even if they were not, no rule of law would justify the use of ex parte affidavits for the purpose of impeachment.

One of the defendants, other than the appellant, testified on cross-examination that they played poker and craps up there, and that there was also a slot machine. The record does not disclose what was meant by up there, nor does it appear that the appellant was in anywise connected with or implicated in the games in question. We fail to see, therefore, how he could have been prejudiced by the testimony complained of. Furthermore, nearly all the testimony went in without objection, and no exception was reserved to any ruling of the court.

Another assignment is based on statements made by the attorney for the government in the course of his argument to the jury. The attention of the court below was at no time directed to these statements and no ruling was invoked or made in regard thereto. Under such circumstances there is no question before us for review. Doubtless, statements by counsel may prove so prejudicial to the rights of a party as to necessitate the granting of a new trial, or a reversal on appeal; but the statements here complained of do not fall within that category. A simple instruction by the court to disregard the statements and an admonition to counsel would have amply protected the rights of the accused. It will not do to establish a practice under which counsel may sit idly by when improper...