Robert James Smith v. United States

CECIL, Circuit Judge.

Smith was convicted by a jury in the District Court of the offense of telephoning the federal agency in charge of the Control Tower at the Greater Cincinnati Airport, false information that a bomb was on an outgoing civil aircraft. Title 18 U.S.C. § 35. He was fined $1,000 and sentenced to imprisonment for one year.

In his appeal, Smith claims the Trial Court erred in excluding testimony offered by the defense tending to impeach the Government witness Tony Hoobler. On direct examination Hoobler testified that he was in the office of King Bonding Company in Cincinnati when Smith made the telephone call in question and overheard Smith tell the airport authorities that there was a bomb on an outgoing aircraft. Smith was the manager of the bonding company, of which his wife was the owner.

On cross-examination, Hoobler was asked whether he made a statement to Donald Chapman on or about April 2, 1959 in a room at the Town Center Motel that he would get Bob Smith one way or the other and it didn’t make any difference how. His answer was “No, Sir.”

Chapman was called as a defense witness and asked whether Hoobler had made any statement to him relating to Mr. Smith on any occasion he saw him in April and May. The prosecutor objected to the question but Chapman answered it “Yes” before the Court could pass on the objection. The Court sustained the objection but did not strike the answer or instruct the jury to disregard it. Chapman was then asked “On any occasion did you ever hear Mr. Hoobler make any threats toward Mr. Smith?” The Court sustained an objection to the question and defense counsel proffered an answer that Chapman would testify if permitted to the following statement made to him in his hotel room: “Tony Hoobler made the statement that he would get Mr. Smith one way or the other and it made no difference how.”

The form of the question was objectionable since it called for a conclusion and did not fix a proper time or place. Whether this statement constituted a threat would have been for the jury to determine if it had been admitted in evidence. The Trial Judge was within his rights in sustaining the objection which had been interposed. It would have been proper for defense counsel to have asked Chapman whether Hoobler made the particular statement to him on or about April 2, 1959 in said motel room that he would get Mr. Smith one way or the other and it made no difference how. The foundation had been laid for the asking of such a question on the cross-examination of Hoobler. That question was not asked Chapman. While hindsight enables us to see that the question asked was intended to elicit competent evidence, the Trial Court had to rule on the nature of the question itself and was correct in considering it as improper.

On cross-examination defense counsel asked Hoobler whether or not in the early evening on or about April 5, 1959 he told Chapman that he and his brother would eliminate Mr. Smith from the bail bond business so that he (Hoobler) could move in. Hoobler’s answer was “No.”

Chapman was asked by the defense on direct examination whether he ever heard Hoobler make a statement directly to him relating to the bail bond business. The Court sustained an objection to the question and an answer was proffered that Hoobler denounced Smith and stated that he would say or do anything to put Smith out of business.

It will be noted that the proffered answer was not responsive to the question to which the objection was sustained. Hoobler had been asked on cross-examination about making a statement on or about April 5, 1959. The question addressed to Chapman was whether Hoob-ler ever made a statement. The relevant time was on or about April 5, 1959 and not whether he ever made any such statement. Furthermore, it was not relevant whether Hoobler made a statement concerning the bail bond business generally as this would not indicate bias or prejudice. The relevant part, which the defense did not ask, was whether Hoobler made the statement to Chapman that he and his brother would eliminate Mr. Smith from the bail bond business so that he (Hoobler) could move in. The question propounded could have been answered “Yes” or “No” and if so answered it would not impeach Hoobler.

Another question asked Hoobler on cross-examination to lay a foundation for impeachment by Chapman was, “I will ask you if at that time (8th or 9th of April) you didn’t make the statement that you would pin something on Mr. Smith?” Mr. Hoobler denied making such a statement. Mr. Chapman was then asked in substance if at any time the Hoobler brothers, came to his motel and if so what happened out there. This was not a proper question to rebut the answer given by Hoobler to the question asked on cross-examination. The proffered answer was wholly unresponsive and was calculated to inflame the jury against Hoobler. It referred to Tony carrying a gun (with no hostile motive toward the defendant apparent) and finally contained no statement that he would pin something on Smith.

The questions asked Chapman did not properly elicit the information concerning which the foundation had been laid. The Trial Judge was fully justified in sustaining the objections. In making his rulings the Judge said: “It’s a collateral matter anyhow.” We think the substance of the questions asked on cross-examination was a proper subject of impeachment. The Trial Judge would have been in error had he sustained the objections only on the ground that it was a collateral matter.

The defense had a right to impeach Hoobler by asking him questions on cross-examination tending to establish bias or prejudice on his part against the defendant. Defendant was not concluded by Hoobler’s answers to the questions put to him, but had the right to offer proof through other witnesses tending to show that he did make the statements claimed.

Smith asserts that the Court erred in excluding testimony of defense witness Evelyn Walters, concerning an alleged conversation between the Hoobler brothers, on February 11, 1959.

Directing the witness’s attention to February 11, she was asked if she heard any conversation between Tony Hoobler and Richard Hoobler concerning Mr. Robert Smith. No foundation had been laid for this question on the cross-examination of either of the Hoobler brothers. Furthermore, the time of day, place and circumstances of hearing this alleged conversation were not fixed. The witness was asked if she had occasion to visit Smith’s office and she said: “Yes, I have.” Finally, the proffered answer: (“Let him have his fun now. It won’t be long. This is a swell set up.”) does not in itself show hostility. They appear to be words taken out of context, spoken two months before the indictment, with no indication that they had any reference to the crime for which Smith was being tried.

It is further claimed that the Court erred in excluding testimony of defense witness Eunice Mae Coon, concerning an alleged conversation between the Hoobler brothers and Robert Frye, on February 6, 1959.

The witness was asked if at any time when she was in Mr. Smith’s office she heard any conversation between the Hoobler brothers and Frye, about a bomb hoax. An objection was made and a colloquy between Court and counsel followed. The prosecution claimed it was hearsay because Mr. Smith was not present. Defense counsel contended that it was part of the res gestae. The Court sustained the objection on the ground that it was hearsay.

Clearly, it was not a part of the res gestae. It was a week after the crime had been committed, a casual conversation and nothing to do with the promotion of the crime. In Smith v. United States, 9 Cir., 47 F.2d 518, 521, it was said: “In any event, the overwhelming weight of authority holds to the rule that, unless the complaint is so closely connected with the time or place of the crime as to form a part of the res gestae, the details of what the prosecuting witness said, and particularly the naming of the person accused of the crime, cannot be proved on direct examination.” The statements must form a part of the main transaction. Bruce v. United States, 8 Cir., 73 F.2d 972, 974. It was stated in Busch v. United States, 8 Cir., 52 F.2d 79, 88: “This declaration, to be admissible as part of the res gestae, must have been a spontaneous utterance of the mind while under the influence of the transaction.” See also: Barshop v. United States, 5 Cir., 191 F.2d 286, 292.

Defense counsel implicitly recognized Mrs. Coon’s testimony as hearsay, in attempting to qualify it as res gestae, an exception to the hearsay rule. This position has been shifted in this Court, and it is urged upon us that the testimony was being offered for impeachment to show bias and prejudice, and, therefore, not subject to the objection of hearsay.

We are of the opinion that even if this proffered testimony was in fact offered for the purpose of impeachment, it was still inadmissible. The defense claims that by this testimony they did not seek to rebut any direct evidence or to destroy any link in the chain of circumstances by which the prosecution had sought to establish the facts of the commission of the crime. It sought only to discredit three of the Government’s witnesses for hostility, bias and prejudice, as alleged in the defendant’s brief. This it had a right to do. Testimony, the truth of which is not to disprove the crime but which if believed would tend to discredit witnesses, cannot be classed as hearsay. United States v. 88 Cases, More Or Less, Containing Bireley’s Orange Beverage, 3 Cir., 187 F.2d 967, 974; Carantzas v. Iowa Mutual Insurance Co., 5 Cir., 235 F.2d 193,196; Young v. State Farm Mutual Automobile Insurance Co., 4 Cir., 244 F.2d 333, 337.

There was no foundation laid for this offered testimony in the cross-examination of the three witnesses involved. There is a conflict of authorities on this principle. Some courts hold that it is not necessary to lay a foundation as a prerequisite for the impeachment of a witness for hostility, bias or prejudice. Other courts take the view that such testimony cannot be admitted unless the way is first paved by questions on cross-examination. See: 58 Am.Jur. 385, Witnesses, Section 714, and 3 Wigmore on Evidence 498, Section 948. These conflicts exist mostly in the state courts. We find only three Court of Appeals cases on the subject. Ewing v. United States, 77 U.S.App.D.C. 14, 135 F.2d 633, certiorari denied 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145; Greatreaks v. United States, 9 Cir., 211 F.2d 674; and Burton v. United States, 5 Cir., 175 F.2d 960, certiorari denied 338 U.S. 909, 70 S.Ct. 347, 94 L.Ed. 560. The first two hold that no foundation is required, while the third takes the opposite view.

We think the better rule is to require a foundation to be first laid. By laying a basis for such testimony on cross-examination, counsel is advised of what he may have to meet and can ascertain if he needs to call other witnesses or prepare his answer, if any there be. When such testimony is brought in extrinsically, opposite counsel is taken by surprise and has no opportunity to meet’the unexpected situation. Surprise is not favored in the Federal Courts. Considering the substance of the proffered answer, it seems that it was no mere coincidence that Eunice Mae Coon was the last defense witness.

With this discussion as to the nature of this evidence and the method of offering it, we look to the subject matter of the proffer. The proffered answer contained four paragraphs of alleged statements made by Frye, Dick and Tony Hoobler. Only one sentence of this might be classed as showing any bias or prejudice, and that against Tony Hoobler.

We conclude that the testimony of this witness was properly excluded, first, because no question was asked on cross-examination to lay a foundation for impeachment, and, secondly, for the reason that the proffered answer was not responsive to any proper question calling for an answer to show bias or prejudice of a witness.

Defendant claims error in the failure of the Court to define the issues. At the close of the Court’s charge to the jury the Court said: “Now is there anything from either counsel?”

Mr. Stueve: “Nothing from the Government, Your Honor.”

Mr. Smith: “Nothing from the defendant, Your Honor.”

No exceptions to the charge were taken by either counsel.

The Court read the indictment to the jury and the applicable statutes. He also defined various terms in the statutes. He defined the word “Willfully.” He instructed on burden of proof and reasonable doubt. At the request of defendant he gave a special charge on alibi. He instructed the jury that if they find that the Government has proven the commission of the crime charged beyond a reasonable doubt, they should return a verdict of guilty. If, on the other hand, they find that the Government has not proven every essential element of the crime charged, then their verdict should be not guilty.

The issues in the case were relatively simple. The statute was clear. There was no dispute that a telephone call had been made to the airport authorities that a bomb was on an outgoing aircraft and that such message was false. Such a call was plain violation of the statute. The only issue in the case was whether defendant had made the telephone call. If he had made it he was guilty. In our judgment, the charge of the Court was entirely adequate. See: Rule 30 and Rule 52, Federal Rules of Criminal Procedure, 18 U.S.C.A.; Morris v. United States, 9 Cir., 156 F.2d 525, 169 A.L.R. 305.

Smith claims that prejudicial error was committed by the Assistant United States Attorney in his cross-examination of the defense witness Harold Shapiro concerning prior criminal convictions. Shapiro had testified on direct examination to an alibi for Smith. The court notes with disapproval the form of the question used by counsel to inquire about former convictions. The question to which no objection was made is “How many times have you been convicted of a state or federal offense?”

It would appear that Shapiro in his answer volunteered the information about his trouble with the city authorities over some refunds. He was then asked whether it was a state offense and he said he believed it was a city offense.

Defense counsel objected and Shapiro was then asked whether he had been convicted in the Police Court of Cincinnati on April 4, 1958 of the offense of larceny by trick, which was a violation of Ordinance No. 438-1951 of the City of Cincinnati. This offense is also a violation of state law. Revised Code of Ohio, § 2907.21. The offense under the state law is a felony, if the amount involved is over $60.00. If the amount is less than $60.00, it is a misdemeanor. The offense under the ordinance is a misdemeanor. Following discussion between counsel and the Court, the Court concluded there was some question about the admissibility of the evidence and refused to admit it. No further objection was made by counsel for defendant. No motion was made to instruct the jury to disregard the questions. Under such circumstances we do not believe there was any prejudicial error. Cf. McClain v. United States, 5 Cir., 224 F.2d 522.

If the conviction under the ordinance was admissible, any error in excluding the evidence was against the Government and certainly defendant cannot complain of a ruling in his favor.

The type of questions permitted to impeach a witness are those which show that he committed a felony or crime involving moral turpitude. Henderson v. United States, 6 Cir., 1953, 202 F.2d 400, 405; Coble v. State, 31 Ohio St. 100; Harper v. State, 106 Ohio St. 481, 140 N.E. 364; Kornreich v. Industrial Fire Ins. Co., 132 Ohio St. 78, 5 N.E.2d 153.

It would not be proper to show for impeachment purposes that the witness had been convicted of disorderly conduct, of violating the traffic laws of either state or municipality or that he was convicted of crimes not involving moral turpitude. Coble v. State, supra; State v. Hickman, 102 Ohio App. 78, 141 N.E.2d 202.

Larceny by trick is an offense which, in our judgment, involves moral turpitude whether the amount stolen is more or less than $60.00 or may be prosecuted under state law or municipal ordinance. Cf. Pearson v. United States, 6 Cir., 192 F.2d 681, 699. Treating the offense as a misdemeanor does not make it any the less heinous and does not lessen lack of good character of the offender. In State v. Hamm, Ohio Com.Pl., 104 N.E.2d 88, it was held that convictions in a magistrate’s or mayor’s court on an affidavit based upon the provisions of a municipal ordinance may be shown if such offense is also a crime defined by statutes enacted by the legislature.

In State v. Carter, 75 Ohio App. 545, 58 N.E.2d 794, it was pointed out by the Court that municipalities operating under charter form of government have all powers of local self-government and may enact ordinances not inconsistent with general law. id. 551.

The Court considers further that the inquiry into the matter of the witness’ request to be discharged from the Air Corps was not a proper subject of cross-examination. No error was assigned in this respect and we do not find that the use of these questions constitute plain error. Rule 52(b), Federal Rules of Criminal Procedure.

Other points have been argued, but we believe them to be without merit.

The judgment is affirmed.