Young v. United States, 8532.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation97 F.2d 200,117 ALR 316
Docket NumberNo. 8532.,8532.
Decision Date07 June 1938

117 ALR 316, 97 F.2d 200 (1938)


No. 8532.

Circuit Court of Appeals, Fifth Circuit.

June 7, 1938.

97 F.2d 201

Ayres K. Ross, 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.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Brought under Secs. 253 and 452, Title 18, U.S.C.A., the charge of the indictment was that appellant did willfully and voluntarily, and with malice aforethought kill by shooting with a gun an investigator in the service of the Internal Revenue, while engaged in the performance of his official duties.

Conceding that appellant did not actually fire the gun which killed Thomason, the investigator, the general theory of the prosecution was that appellant was a principal, under the Federal statute of Principals, Sec. 550, Title 18 U.S.C.A. one who "aids, abets, counsels, commands, induces, or procures the commission" of an offense. As particularly applied, the theory of the prosecution was that appellant was the owner and operator of an illicit still; that assisting him as lookout man and guard was one Pete Martinez; that some time prior to the killing, and in connection with his duties as lookout and guard appellant had given Martinez the pistol with which Thomason was killed, instructing him generally to keep a lookout, to avoid notice and detection if possible, but if discovered, to shoot it out with any officers attempting their arrest, or to take the still; that at some time before the killing Martinez had told appellant that he was a good shot, and that if the officers tried to capture the still he would shoot it out with them, and the best man would win; that Young had told him he hoped that he would prove a man of his word; that on the night of February 14, 1937, Thomason and other officers captured Young and one Hazel Hamilton, while actually operating the still, and, one of the officers holding those two prisoners, Thomason left the site to make a further search; that he suddenly came upon Pete Martinez and a fifteen year old boy, Hucel Hamilton, and upon his command, "stick them up" Martinez acting under the instructions from and promises to appellant, commenced firing; that a pistol battle then ensued, in which both Martinez and Thomason were killed. There was a verdict against Young of murder in the first degree as charged, without capital punishment, and a sentence and judgment of imprisonment in the United States penitentiary for the remainder of his natural life.

By this appeal he maintains that greatly prejudicial error was committed on the trial of his case, in respect of, the admission as evidence against him of matters not receivable as such, and of, the denial of his motion for a directed verdict. The point made on the denial of the motion to direct is that the undisputed evidence showed that Young was at the still unarmed, and in the custody of the officers when the gun battle which cost Thomason his life occurred, and there was no evidence that he at any time, by word or sign, ever advised, counseled, aided, induced or procured the shooting of Thomason; that it occurred as the result of an unexpected meeting and affray between Thomason and Martinez, and that the verdict, therefore, that appellant killed Thomason with malice aforethought, is wholly without evidence to support it.

There are several assignments as to erroneous admissions into evidence. Appellant's main reliance, however, is upon the proposition that the Government was permitted, without having been surprised by the testimony of a hostile witness, to

97 F.2d 202
get before the jury in form as impeaching testimony, but in fact as independent evidence, a mass of matter not admissible as evidence, and in the state of the record, fatally damaging to him

We think little need be said upon the first point, the denial of the motion for instructed verdict, and the want of evidence to support it. The Government did indeed, by introducing a completely exculpatory statement of defendant, in which he denied having given Martinez either a gun, or any instructions whatever as to guarding the still or shooting it out with officers, thereby raise a presumption in his favor that the exculpatory statements were true, which required their falsity to be shown beyond a reasonable doubt. 18 Tex.Jur. Sec. 106, p. 194; Spicer v. State, 113 Tex. Cr.R. 616, 21 S.W.2d 737; Villareal v. State, 101 Tex.Cr.R. 251, 275 S.W. 835; Cokeley v. State, 87 Tex.Cr.R. 256, 220 S.W. 1099; Nichols v. State, 110 Tex.Cr.R. 432, 10 S.W.2d 109; Cook v. State, 71 Tex. Cr.R. 532, 160 S.W. 465. However, the other evidence, if admissible and believed, warranted a jury finding that Young armed Martinez and put him on post, with instructions to kill any officer who should attempt to seize the still or arrest those connected with it, and with the purpose and belief that he would do so. If this was so, his hand in law fired the shot which killed the officer, and he is as guilty of his willful killing as if he had been standing by while the shooting was going on, urging and directing it, or himself had held the gun. Under Federal statutes he who, in the commission of an illegal act with others, such as maintaining an illicit still, conducting a burglary or holdup, arms and instructs his confederates to kill if obstructed in the attempt, with the purpose and intent that they do so, is in law a principal in any willful killing which results from carrying out those instructions.

Upon the questions the other assignments raise the admission into evidence of statements made by and letters written by and to the witness Hamilton, in impeachment of his testimony, the matter stands, we think, quite differently. Without these admissions, the Government's case was almost, if not quite, fatally lacking in the clear and convincing proof of that high order of credibility which the nature of the charge and the state of defendant's proof, demanded. The admission into evidence of these statements and letters was fatally damaging to defendant, and if their admission was erroneous, a reversal is required. A brief summary of the evidence on the crucial point, the claimed arrangement between Martinez and the defendant for guarding the still, and shooting it out with officers will show, inescapably, we think at once the damaging character and the complete inadmissibility of this proof. Hamilton's statements aside, there is no proof in the record directly or circumstantially in any way tending to support the Government's claim, except the testimony of three persons, who were inmates of the jail in which defendant was confined, who testified to having had or heard conversations in which he made admissions as to his connection and arrangements with Martinez. Cf. Cokeley v. State, 87 Tex.Cr.R. 256, 220 S.W. 1099. One of these persons was Richard Palmer, an habitual offender, then serving a life sentence for murder, who testified in substance that in one conversation the defendant had told him; that he had a fellow named Pete Martinez working for him; that when the officers came and arrested him, and one stayed with him, and the other went off, he knew at the time the officer left that his life was in danger if he went in that direction; that the Mexican was waiting down there with a gun he had furnished him, or knew something about, and that the Mexican was a good shot; he said he could distinguish the shots, one of them was his gun, and he said he knew at the time the shooting occurred that the man's life was in danger, because the Mexican shot first. He further testified that in a subsequent conversation the defendant told him the Mexican was working for him at the still, and was supposed to carry water and watch the trail that led to the still. "He told me for what purpose the Mexican was supposed to watch it. He said if anybody came up to the still or near the Mexican who was watching, he was supposed to lookout, and if anybody, did not necessarily mean officers, came onto his trail he was supposed to shoot once, as a warning shot, to give them an opportunity to go away, and then if the party did not leave, to shoot, and shoot to kill." At another time the defendant told him that if it had been some other officer, except the one that it was, he would have given him warning, and told him not to go there where the Mexican was. "He said he did not mind seeing this particular officer walking that way into a death trap."

97 F.2d 203

Another one was Kohutek, confined in the jail for a misdemeanor. He testified that as trusty he had the privilege of going all around the jail, and he got acquainted with Richard Palmer while in jail; that while in the runaround outside the cells he heard conversations between the defendant and Palmer, with regard to the killing of a Federal Officer and the operation of a still; that the defendant stated that he heard the shooting and the rapid firing, and he said he knew it must have been the Mexican shooting because he knew that gun would never miss; that he heard that gun first. "He said he knew that gun would never miss and that he put the Mexican down there for a guard, for a lookout man. He said that when he put the Mexican down there he was safe, that nobody would ever get up to the still"; that he heard a conversation about killing a Federal officer and that appellant made the remark "the Goddamn son of a bitch was dead, and would never bother nobody else"; that he also said he was expecting a raid on the still by Federal officers. On cross examination Kohutek said the conversation between Palmer and Young all happened at one time, the night he was standing there.

The third was B. L. Vann, in jail 45 days for drunkenness. He testified that while in jail he heard the defendant make statements with reference to operating a still and the killing of a Federal officer. "The defendant said he had a Mexican...

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