Williams v. United States

• Citation: 3 F.2d 129
• Decision Date: 22 November 1924
• Docket Number: No. 6624.,6624.
• Parties: WILLIAMS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

3 F.2d 129 (1924)

WILLIAMS v. UNITED STATES.

No. 6624.

Circuit Court of Appeals, Eighth Circuit.

November 22, 1924.

J. H. Hawthorne, of Jonesboro, Ark. (T. A. Turner and Hawthorne, Hawthorne & Wheatley, all of Jonesboro, Ark., on the brief), for plaintiff in error.

Charles F. Cole, of Batesville, Ark., for the United States.

Before STONE and KENYON, Circuit Judges, and KENNEDY, District Judge.

KENYON, Circuit Judge.

Plaintiff in error was convicted in the United States District Court, Eastern District of Arkansas, upon one count of an indictment charging him with unlawfully carrying on the business of a wholesale liquor dealer without having first paid the special tax, as required by law, and was sentenced to the United States penitentiary at Atlanta, Ga., for a period of 18 months, and fined $1,000. Three questions are urged in argument:

First, misconduct of the district attorney. It is sufficient as to this to say that the alleged remark of the district attorney claimed to be prejudicial does not appear in the record. Hence that matter is not before the court.

Second, alleged error of the court in sustaining an objection to a question asked the witness, Sparks, as follows: "Mr. Sparks, have you been convicted of a felony?" Of this we speak later.

The third question is that urged by counsel that the evidence was insufficient to sustain the conviction. The indictment was under the old law, which was re-enacted by what is known as the Willis-Campbell Act, approved November 23, 1921. 42 Stat. 222, c. 134 (Comp. St. Ann. Supp. 1923, §§ 10138½aaa, 10138½bbb, 10138½ccc, 10138 4/5a-10138 4/5e). It is urged that the evidence does not show the offense was committed after that time.

The record fails to show that any contention was made in the trial court that the evidence was insufficient to carry the case to the jury. Outside of any other question, however, we think there is evidence from which a jury could find that the alleged business of plaintiff in error was carried on after the passage of the Act of November 23, 1921. Therefore this point is without merit.

We return, therefore, to the proposition presented as to the alleged error of the court in sustaining an objection to the question asked the witness Sparks as to whether he had been convicted of a felony. The court's theory of the matter is shown by its remark in sustaining the objection, "There is a way of bringing it in, by bringing a certified copy of the conviction." This raises a very interesting and important question, upon which the briefs furnish us little assistance.

The direct question here presented seems never to have been determined by this court. In Bise v. United States, 144 F. 374, 74 C. C. A. 1, 7 Ann. Cas. 165, the attempt was made in the trial court in the examination of one of the government's witnesses to show that the witness had been convicted of a felony. The court inquired whether it was for the purpose of impeachment or disqualification. The answer being that the purpose was disqualification, the court held that to disqualify the witness the record of conviction must be produced. This occurred in the Indian Territory, which at that time had no controlling statute on the subject. This court sustained the ruling of the trial court, quoting Prof. Greenleaf in support thereof. It will be noted that the case deals with the question of disqualifying a witness, and not with the question of affecting a witness' credibility. The distinction between competency and credibility of a witness should be borne in mind.

In Glover v. United States, 147 F. 426, 429, 430, 77 C. C. A. 450, 454 (8 Ann. Cas. 1184), this court again dealt with a situation where a prosecuting attorney inquired of witnesses as to whether they had not been arrested at some time, and said: "It is competent for the purpose of discrediting a witness to show that he has been convicted of a crime. The general rule is that the crime must rise to the dignity of a felony or petit larceny." Further the court said: "The proper evidence of a conviction of crime is the record thereof. * * * Whether it is permissible, in the absence of any statute in the Indian Territory regulating the practice in this respect, to undertake to prove by cross-examination of the witness, without the production of the record, that he had been convicted of a crime, for the purpose merely of affecting his credibility and not as to his competency, it will be time enough for this court to determine when the question is properly before it."

The question is now properly before this court. Therefore the time has arrived to determine it. At common law persons convicted of infamous crimes were incompetent to be witnesses at all, on the theory that they were so destitute of moral honesty that truth could not within them dwell. In nearly all of the states of the Union this disqualification of the witness is now removed, and one who has been convicted of crime is a competent witness, but the general provision of state statutes is that the conviction may be shown to affect credibility.

As to some crimes, such as perjury, it is pointed out by the Supreme Court in Rosen et al. v. United States, 245 U. S. 467, 471, 38 S. Ct. 148, 150 (62 L. Ed. 406), the disability to testify survived longer than some of the other common-law disabilities. The common-law rule that a witness previously convicted of a felony is disqualified to give testimony, is no longer the rule of the federal court. In Rosen et al. v. United States, supra, the Supreme Court said: "Satisfied as we are that the legislation and the very great weight of judicial authority which have developed in support of this modern rule, especially as applied to the competency of witnesses convicted of crime, proceed upon sound principle, we conclude that the dead hand of the common-law rule of 1789 should no longer be applied to such cases as we have here."

The decisions construing the statutes of the various states on this subject are not uniform as to just what class of crimes a witness may be proved to have been convicted of in order to affect credibility. This court, as we have heretofore pointed out in Glover v. United States, seems to approve the general rule that the crime must rise to the dignity of a felony or petit larceny.

In Neal v. United States of America (filed July 14, 1924) 1 F.(2d) 637, referring to the statutes enacted by the various states on this subject, this court said: "Under them it is generally held that proof of former conviction of a witness of any crime, regardless of grade, may be shown" — citing authorities. A felony is undisputably such grade of offense as by conviction thereof affects credibility. The question asked in the trial court related only to a felony. So the succinct question here is whether conviction of a felony may be shown by cross-examination of the witness or must be proved by the record.

We refer to some of the authorities and cases holding that the conviction must be proved by the record thereof. The following words of Prof. Greenleaf are generally cited in support of the contention: "But, on the other hand, where the question involves the fact of a previous conviction, it ought not to be asked, because there is higher and better evidence which ought to be offered. If the inquiry is confined, in terms, to the fact of his having been subjected to an ignominious punishment, or to imprisonment alone, it is made, not for the purpose of showing that he was an innocent sufferer, but that he was guilty, and the only competent proof of this guilt is the record of his conviction. Proof of the same nature, namely, documentary evidence, may also be had of the cause of his commitment to prison, whether in execution of a sentence, or on a preliminary charge." Greenleaf on Evidence, § 457.

Perhaps the strongest statement of this theory is found in Hall v. Brown, 30 Conn. 551, where the court discusses the state statute of 1848 removing the disqualification of a witness by reason of his conviction of a crime, and holds that such conviction may be shown for the purpose of affecting his credit, but that the record of his conviction is the only evidence that can be introduced, and says pages 557, 558:

"The statute therefore authorizes no other mode of proving a witness unworthy of credit because of his presumed insensibility to the obligations of an oath, as evidenced by his commission of an infamous crime, but the record of his conviction, because his conviction can be proved only by the record, and we think the strictness of the rule is founded in the soundest reasons of justice and of policy. If the question of the witness' guilt or innocence of crime in fact, were permitted to be tried, issues would often be so greatly multiplied that the merits of the principal cause on trial would be lost sight of, and the rights of the litigating parties sacrificed. And it would also be doing great injustice to the witness to subject him to trial for crime in a case to which he was not a party. The common law therefore determined wisely when it excluded all evidence of the criminality of a witness except the record of his conviction. And we think the court ought not to depart from this wise and salutary rule any further than the plain import of the statute requires. The statute is an enabling or remedial one, and should be construed liberally in favor of the party for whose benefit it was made. It speaks only of persons who have been convicted of, not of those who have committed, crimes, and it provides that such conviction, not such commission, may be shown to affect the credit of the witness."

See, also, as sustaining the record doctrine, Commonwealth v. Walsh, 196 Mass. 369, 82 N. E. 19, 124 Am. St. Rep. 559, 13 Ann. Cas. 642; Commonwealth v. Sullivan, 161 Mass. 59, 36 N. E. 583; Newcomb v. Griswold, 24 N. Y. 298; People v. Herrick, 13 Johns. (N. Y.) 82, 7 Am. Dec. 364; Commonwealth v. Quin, 5 Gray (Mass.) 478; Johnson v....