Ward v. United States, 18833.

• Decision Date: 16 January 1962
• Docket Number: No. 18833.,18833.
• Citation: 296 F.2d 898
• Parties: Colon WARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

296 F.2d 898 (1961)

Colon WARD, Appellant, v. UNITED STATES of America, Appellee.

No. 18833.

United States Court of Appeals Fifth Circuit.

November 29, 1961.

Rehearing Denied January 16, 1962.

A. G. Campbell, Jr., of Campbell & Andrews, DeFuniak Springs, Fla., for appellant.

Edward L. Stahley, Asst. U. S. Atty., Tallahassee, Fla., C. W. Eggart, Jr., Acting U. S. Atty., Pensacola, Fla., for appellee.

Before BROWN, GEWIN and BELL, Circuit Judges.

GEWIN, Circuit Judge.

The Defendant Colon Ward appeals from a judgment of conviction under Count One of an indictment in which he was charged with offering money to an impaneled petit juror with intent to influence such juror's action in violation of Title 18 U.S.C. § 206.¹ The defendant raises three points on this appeal which are as follows: (a) That the trial court erred in admitting the testimony of the Juror Stanley Morse, a witness for the Government, as to statements made to Morse by the Witness William Staley not made in the presence of the defendant; (b) That the trial court erred in denying defendant's motion for judgment of acquittal; and (c) In refusing to grant defendant's motion for a new trial. To gain a proper understanding of the points raised by the defendant, some statement of the evidence is necessary.

Two brothers of the defendant were indicted on a "moonshine" liquor charge and were awaiting trial before the United States District Court for the Northern District of Florida on Wednesday, June 8, 1960. The session of court commenced on Monday, June 6, 1960. The defendant obtained a list of prospective jurors and went to see John Henry Miller, a friend, to discuss with him the list of jurors from which a jury would be selected to try his brothers. Stanley Morse was on the jury list. Apparently, Miller knew little about the jurors on the list, but informed the defendant that William Staley, who lived in Marianna, Miller's uncle by marriage, could possibly help. The defendant and Miller then proceeded to Marianna, Florida to see Staley. Staley was located and he, Miller and the Defendant Ward had a conversation about the jury. In the conversation it developed that Staley had a friend on the jury, namely, Stanley Morse. Apparently, Staley also knew at least one other juror on the list. We quote from Staley's testimony:

"And they asked me could I look over the jurors and see if there was anyone that I thought we could talk to. So Dexter McCaskill was on the list and I mentioned his name and they said that they had already talked with Dexter McCaskill. So, I read the list on down and Stanley Morse, Jr. was on there, so I told them I might could talk to that old boy."

The defendant claims that it was his purpose to determine whether any of the jurors "were against moonshine or anything like that". In his brief the defendant states that his purpose in seeing Miller and Staley was to determine whether they knew any of the jurors "or could contact any of the jurors to ascertain their feelings concerning `moonshine' cases"; that since Miller did not know any of the jurors they went to see Staley who lived in Marianna, Florida, thinking that Staley "might know some of the jurors and prove helpful in `canvassing their attitude', or `feeling their pulse'". It is admitted that Staley was requested to give such assistance, but the defendant stoutly contends that he did not authorize or direct Staley to offer money to the Juror Morse; and did not even suggest that he do so.²

The Government contends that the defendant told Staley that he desired to get one juror to hang the jury; that the defendant directed Staley to see the prospective juror Morse and advise Morse that he would be paid $100.00 before the trial and $100.00 after the trial whether or not he actually served on the jury which was to try defendant's brothers; that the defendant arranged with Staley to call Miller after seeing Morse and advise Miller whether Morse was willing to accept the offer. It is admitted that the Defendant Ward gave Staley $10.00 because as the defendant stated, he "wanted to give him something for his time because he would like for him to take up some of his time to see if he could find out anything about them". The defendant contends he merely stated to Staley that it would be worth $100.00 to gain some jury information.

Miller, Staley and the Juror Morse all testified as witnesses for the Government. Staley testified that according to the prior arrangements agreed upon between Staley and the Defendant Ward, he did contact Juror Morse, explained the offer of $200.00, which was promptly refused by Morse with the statement, "No, I can't do that.". Thereafter, Staley called Witness Miller and told him, "The man did not want to sell the boat.". Miller testified that he received the call from Staley and reported the conversation to the defendant. Staley testified to substantially all details of the arrangements between him and the defendant without objection on the part of the defendant. During the trial the defendant did object to the testimony concerning the conversation between Staley and the Juror Morse, which conversation was not in the presence of the defendant. The trial court admitted the testimony over the defendant's objection. The jury found the defendant guilty; and accordingly, the Court adjudged defendant to be guilty as charged and convicted, and he was sentenced to a term of three years.

The first point argued by the defendant is that the Court should not have allowed the jury to receive testimony concerning the conversation between Staley and Morse. Both Staley and Morse gave testimony as to the conversation. The defendant readily concedes that as a general rule a jury is entitled to hear testimony concerning statements made by an accomplice although such statements were not made in the presence of the defendant. The defendant contends that Staley was not his accomplice and that the only evidence tending to establish Staley's position as an accomplice was his own (Staley's) statement which the defendant claims was uncorroborated and in fact refuted by testimony offered by the Government.³

We are not unmindful of the rule that testimony of an accomplice should be received with great caution. In this case, the trial court carefully and cautiously instructed the jury and left to the jury, the final decision as to the facts. The pertinent portion of the Court's charge is as follows:

"Now, the Court charges you with reference to the testimony of Mr. Staley, Bill Staley, the witness in the case, that if the jury finds his testimony credible and worthy of belief, that you are given a note of caution under the law that such testimony of one is generally referred to as an accomplice. And the government in this case relies in part for a conviction upon this testimony of William Staley. An accomplice is one who participates in the commission of a crime as an aider or abetter or one who aids or abets, counsels or assists in planning its commission. You are instructed that an accomplice in a crime is a competent witness against the sole perpetrator of the crime and if the evidence should be considered by the jury, even though uncorroborated, and given such weight as the jury believes it is entitled, the evidence, the uncorroborated evidence of the accomplice alone would be sufficient to support a verdict of guilty in this jurisdiction, but such testimony, of such accomplice, must be received by you with great caution and you should closely scrutinize such testimony as just stated and receive it with that degree of caution.

"Now, once again in regard to that matter, the final standard as to whether or not you believe beyond a reasonable doubt what the truth to be with reference to these statements that the individual witnesses have made; that is the believability and the credibility of these witnesses. The Court instructs you in determining the credibility of witnesses you may properly take into consideration the manner of the witness on the witness stand, their interest in the outcome of the case, if any appears to be, their intelligence as shown from the evidence, their candor in relating to you the details about which they are testifying about, the time the thing happened and the time they were on the stand, and generally as reasonable prudent men judge others in the every day affair of human life. Those are the standards that you would judge and weigh in your province, as jurors, the credibility or the believability of individual witnesses in the case."

The charge of the trial court fully met the requirements of the rule which is concisely stated by this Court in Phelps v. United States, 5th Cir., 1958, 252 F.2d 49, 52, as follows:

"A skeptical approach to accomplice testimony is a mark of the fair administration of justice."

But the defendant urgently insists that Staley was not his accomplice and that the only evidence to establish such relationship was Staley's own testimony. The trial court admitted Staley's testimony on the theory that he was Ward's agent. It may be true that an agent cannot assert that he is such agent as a matter of law. In this case however, Staley testified to facts without objection from the defendant, from which the jury could easily conclude that Staley had been employed by the Defendant Ward. The defendant does not deny that he traveled some distance to Marianna in the company of Miller for the purpose of obtaining the assistance of Staley; that he, Staley and Miller conversed at some length about contacting the prospective jurors; that he paid Staley $10.00 for his trouble and he stated further that certain information would be worth $100.00. He also confirmed the arrangement to have Staley report to him through Miller. We quote from Ward's testimony:

"I gave Mr. Staley ten dollars. He said he didn\'t want it and I told him No, that I wanted to give him something for his time because I would like for him to take up some of his

...