Young v. United States, 9029.

• Decision Date: 17 November 1939
• Docket Number: No. 9029.,9029.
• Citation: 107 F.2d 490
• Parties: YOUNG v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

107 F.2d 490 (1939)

YOUNG v. UNITED STATES.

No. 9029.

Circuit Court of Appeals, Fifth Circuit.

November 17, 1939.

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Henry H. Jones and Ayres K. Ross, both of Austin, Tex., for appellant.

W. R. Smith, Jr., U. S. Atty., and H. W. Moursund, Asst. U. S. Atty., both of San Antonio, Tex., and Walter S. Howe, Asst. U. S. Atty., of El Paso, Tex., for appellee.

Before SIBLEY, HUTCHESON and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

Convicted and sentenced to life imprisonment a second time for complicity in the killing of a federal officer while engaged in the performance of his duties, Ike Young brings this appeal. He secured a reversal of his first conviction mainly because the prosecution was permitted to impeach Hucel Hamilton, a witness introduced by it, by previous contradictory statements under oath without a showing of surprise or entrapment. Young v. United States, 5 Cir., 97 F.2d 200, 117 A.L.R. 316. The nature of the evidence and the contentions of the parties as there set forth need not be repeated. Several of the assignments of error now made we find so clearly without merit as to require no discussion. We will notice those that seem arguable.

1. It was not a wrongful proof of another offense against Young to permit evidence that he was arrested in the act of running an illicit distillery, because the fatal shooting was done immediately afterwards and nearby by one who, as contended by the prosecution, was posted by Young with instructions to prevent by shooting any approach to the distillery. The operation of the distillery was part of the res gestae; and Young's connection with the shooting could not be understood without reference to it.

2. A government witness Vann, without preliminary challenge as to his mental capacity, testified with apparent intelligence on direct and cross examination. On recall he stated that several years before he had been tried for lunacy and a guardian had been appointed, and that he had twice been in a certain asylum. Proceedings dated in 1928 were produced in which a jury had found that Vann was a "person of unsound mind" and "a proper subject for treatment in a hospital for the insane", and an order was made for his commitment. Another record dated in 1932 showed a second commitment by his own consent and his discharge a year later. Each record shows that alcoholism was his trouble. At the close of the trial a motion was made to exclude Vann's testimony and was denied. There was no error. The commitments did not at all adjudge that Vann did not have mind enough to testify as a witness. The fact that he is at large, and in the last instance was formally discharged, indicates that he recovered from his incapacity, such as it was. His present mental capacity to testify was a preliminary question for the Court upon due challenge. Nothing appears that would compel the Court to exclude his testimony.

3. Some of the evidence against Young consisted of his statements made in jail to fellow prisoners touching his connection with and instructions to the man who did the shooting. It is argued that by a Texas statute confessions of one in custody to be admissible must be in writing and signed after the maker was warned as the statute requires. Vernon's Ann.C.C.P. Tex. art. 727. The statute has no application to a criminal case in a federal court. The common law as modified by federal statute controls. The confession or incriminating statement must be freely and voluntarily made, but nothing else is indispensable. A witness to one of Young's statements was a federal officer disguised as a prisoner. That a deceit was thus practiced does not exclude what Young may have freely said to him. It all goes to the jury for them to consider its weight, under caution by the Court that all alleged confessions are to be scanned with care and accepted with caution.

4. Upon a showing of surprise at the testimony of Hazel Hamilton, the District Attorney was allowed to impeach her by showing her inconsistent testimony in the previous trial. There was nothing done contrary to the law as laid down in the previous decision of this Court. The District Attorney showed that he did not know the witness would change her testimony and that she told him she would not. The judge carefully instructed the jury that her previous testimony was not usable as proof, but only to destroy her present testimony if they thought it had that effect.

5. The point of hottest contest is the handling of the witness Hucel Hamilton, a boy of sixteen years. He is the only surviving witness who really saw the shooting. Before the first trial he made two sworn statements of the occurrence which were unfavorable to Young. He reaffirmed one of them before the grand jury. While in jail afterwards he received a note from his sister Hazel proposing that he change parts of it, and he answered that he would; and did so when he testified at the first trial. This appears in detail in our former opinion. Before the second trial the District Attorney interviewed Hamilton and in substance told him that he considered what was said in the first statements to be the truth; but Hamilton said what he testified in the trial was the truth; to which the District Attorney replied, "Well, you may think so, but you just use your own judgment about that. If you don't tell the truth on the trial this time I am going to file a complaint against you for perjury." The District Attorney also testified he said to Hamilton, "We didn't believe you on the last trial. We think you perjured yourself on the last trial and the reason we did not file against you for perjury was because you were so young. You are old enough now to be tried for perjury and if you perjure yourself on this trial we are going to charge you with perjury and try you for it. You know what the truth is and be sure you tell it." Hamilton persisted that he would testify as in the first trial. The jury having been retired, the whole situation was laid before the judge by witnesses. The District Attorney stated that he felt the only eye witness ought to be produced to the Court and he had produced him, but that he did not indorse his truthfulness and could not use him as a witness, and suggested and moved that the Court call and examine...