UNITED STATES v. NETTL, 121 F.2d 927 (3rd Cir. 1941)

No. 7591.Circuit Court of Appeals, Third Circuit.
June 23, 1941.

Page 928

Appeal from the District Court of the United States for the District of New Jersey; Ackerman, Judge.

Ralph Nettl was convicted of conspiracy to transport in interstate commerce, to receive and to sell stolen goods so transported, with knowledge that the goods were stolen, and he appeals.

Reversed and new trial ordered.

Robert J. Fitzsimmons, of New York City (Michael Breitkopf, of Newark, N.J., on the brief), for appellant.

Irwin L. Langbein, Sp. Asst. to Atty. Gen., of Washington, D.C. (William F. Smith, U.S. Atty., of Newark, N.J., on the brief), for appellee.

Before BIGGS, CLARK, and JONES, Circuit Judges.

CLARK, Circuit Judge.

We are quite aware of the meaning of the “substantial prejudice”[1] of the statute which defines reversible error for the guidance of the appellate courts.[2] Because the Congress has seen fit to adjust the balance between the community and its accused members, those courts should be all the more zealous in their protection of those unfortunate individuals from actual injustice. We think the case at bar is a typical example of exactly that. The appellant was convicted of conspiracy to transport in interstate commerce, to receive and to sell stolen goods so transported with knowledge that the goods were stolen.[3] He took the stand in his own defense. On cross-examination, the United States Attorney asked him the questions of which he now complains. They read:

“Q. Mr. Nettl, you say you were never convicted of a crime? A. No, sir.

“Q. Weren’t you convicted of receiving goods in New York?

“Mr. Fitzsimmons (defendant’s counsel): That is objected to as incompetent, irrelevant and immaterial, — I think Mr. Smith has the proper information by which he knows that there was never a conviction on Mr. Nettl’s record.

“The Court: He has a right to ask whether he was.

“Q. I am just asking if he was convicted of receiving stolen goods in 1939. A. No, sir.

“Q. You were not? A. Never.” Stenographer’s Minutes, p. 135 (italics ours).

The record therefore shows that the defendant was not convicted of receiving stolen goods in New York.

The damaging effect of so-called “other crime evidence” is recognized.[4] The jury may receive an impression that defendant is an habitual criminal or probably committed the crime charged.[5] So behaviorism is sacrificed to possible prejudice and such testimony restricted to proof of indentity, intent, motive, system, etc.[6] Even here the earlier cases permitted it only in the exigency of no other available evidence.[7]
Nevertheless, this

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very testimony is received for another purpose. It can be used for testimonial impeachment even though the witness happens to be a defendant in a criminal case.[8] The trial judge is believed capable of insulating the jurors’ minds and causing them to consider the crime only in so far as it affects credibility.

The relevancy of bad moral character to the issue of veracity is acknowledged.[9] There have been differences of opinion over the kind of conduct that suggests the probability of a man’s being a liar.[10] The crime inquired about in the principal case is one of cunning and is included by the strictest standards. Professor Wigmore points out that there is what he calls an “auxiliary policy” that may preclude proof of bad character by extrinsic testimony.[11] He says that “confusion of issues” and “unfair surprise” attend all such proof other than the record of conviction itself.[12]

The learned Professor argues that the “auxiliary policy” vanishes when the proof is offered other than through question and answer on cross-examination.[13] He concedes, as he must, that both the courts and the legislatures are sharply divided.[14] As an example of that division, we have only to compare the statutes of Pennsylvania[15] and New Jersey.[16]
Logically Professor Wigmore is right. There is however, we think, this argument ad hominem. To permit this type of question assumes the prosecuting official is what the jury believe him to be, a person interested only in securing justice.[17] Such a thought, perhaps, has caused some courts to guard carefully against any abuse in this field of cross-examination.[18]

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Even the authority already cited[19] agrees that the cross-examiner is bound by the witness’ answer.[20] The United States Attorney in the case at bar refused to be so bound. After receiving the negative answer he pursued the subject in three further questions. Two of them included the mention of substantially the crime currently charged; one added a specific date, and the other a specific place of and for its commission. The third is in the form which lends itself most readily to voice inflection. The effect of innuendo, insinuation, and the specious framing of questions has been considered in the cases.[21] Its prejudicial character scarcely requires elaboration. Two early cases say, we think, all that need to be said:

“A review of the evidence in this case suggests very forcibly, that however full may be the explanations, a list of questions which assume the existence of damaging facts, may be put in such a manner, and with such persistency and show of proof, as to impress a jury that there must be something wrong even though the prisoner fully denies it, and there is no other evidence.” Gale v. People, 1872, 26 Mich. 157.

“The purpose of the questions clearly was to keep persistently before the jury the assumption of damaging facts which could not be proven, and thus impress upon their minds the probability of the existence of the assumed facts upon which the questions were based. To say that such a course would not be prejudicial to defendant is to ignore human experience and the dictates of common sense.” People v. Mullings, 1890, 83 Cal. 138, 23 P. 229, 231, 17 Am.St.Rep. 223.

It is true that some of the authorities make the curious suggestion that the matter is affected by a subjective standard applied to the District Attorney.[22] We cannot understand how the accused is interested in the personal character of his accuser. The prosecutor may be disciplined.[23] But it hurts the defendant just as much to have prejudicial blasts come from the trumpet of the angel Gabriel.[24]

The judgment is reversed and a new trial is ordered.