J. Stacey Henderson v. United States

218 F.2d 14, 50 A.L.R. 2d 754, 1955 U.S. App. LEXIS 4847

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 11, 1955
• Docket: 12113
• Status: Published

Opinions

MILLER, Circuit Judge.

In a previous trial, appellant was found guilty by a jury under an indictment charging violation of the Mail Fraud Statute, § 1341, Title 18, U.S. Code. On appeal the judgment was reversed because of the admission of evidence which the Court considered incompetent and prejudicial. Henderson v. United States, 6 Cir., 202 F.2d 400, rehearing denied 6 Cir., 204 F.2d 126. On the retrial, in which the evidence held incompetent was not offered, appellant was again found guilty by a jury and received a sentence of five years imprisonment and a $1,000 fine, from which judgment this appeal was taken.

The facts are fully stated in the opinion on the first appeal. In brief, the Government charged appellant with a scheme to defraud of the following nature: Between June 9, 1948 and September 6, 1950, appellant, with some unfavorable experience in the business and without funds, came to Memphis, Tennessee, for the purpose of promoting the drilling of exploratory wells for oil and gas on two adjoining oil and gas leases in Caddo Parish, Louisiana, comprising 33.45 aeres and 5.13 acres respectively. These tracts were part of a larger tract of 245 acres, upon which the Gulf Refining Company had drilled numerous wells beginning about 1908. These wells were pumped out and thereafter abandoned by 1914. The larger tract, for which appellant paid approximately $500.00, was divided into fractional undivided interests of l/32nd each, which were sold to the public in the Memphis, Tennessee area at a $1,000 per unit. Two wells were drilled on this tract. Oil was struck in the second drilling but quickly decreased in volume, yielding approximately 100 barrels of commercial oil, following which operations on the tract were abandoned. The smaller tract, for which no consideration was paid by appellant, was divided into fractional undivided interests of l/64th each, which were sold to the public in the Memphis, Tennessee area at a $1,000 per unit. The drilling on the second tract produced a dry hole, following which Henderson left Memphis. The indictment charged false representations by appellant in making the sales, and specifically alleged the mailing of a $500 check to appellant by Keller, a purchaser of a fractional interest in the second tract.

Appellant contends on this appeal, as he did on the first appeal, that the evidence was insufficient to take the case to the jury and that the trial judge erred in overruling his motions for a judgment of acquittal. On the former appeal, we were of the opinion that the evidence therein reviewed sustained the action of the trial judge and supported the verdict. That ruling constitutes the law of the case. Although an Appellate Court, upon a second review, has the abstract power to reach a result inconsistent with its decision upon the first review of the same case, it is a power to-be exercised very sparingly, and only under extraordinary conditions. General American Life Ins. Co. v. Anderson, 6 Cir., 156 F.2d 615, 618-619. On a question such as is involved in this phase of the case, we adhere to our previous ruling unless there is a material difference in the evidence offered by the Government in the two trials.

All of the witnesses who testified for the Government in the first trial testified again in the second trial, with the exception of two. One of those who did not testify on the second trial was a co-defendant, Rout, who testified in the first trial about certain statements which appellant made to him which bore on the issue of fraudulent intent. Our previous opinion referred to that testimony as part of the evidence justifying the submission of the case to the jury. Appellant claims its absence in the second trial is sufficient to change the ruling. Page v. Arkansas Natural Gas Corporation, 8 Cir., 53 F.2d 27, 31, affirmed 286 U.S. 269, 52 S.Ct. 507, 76 L.Ed. 1096. We do not agree. The present record again includes evidence of not only misrepresentations of material facts, referred to in the first opinion, but also representations as to value and soundness of the leases being explored that “go so far beyond the proper limits of the enthusiasm of the normal salesman, or the mistaken judgment of the honest man, as to impress them with the badge or mark of fraud.” Henderson v. United States, supra, 202 F.2d at page 404. Also to be noted, not previously referred to, is the testimony of Tell T. White, expert witness for the Government, to the effect that the history of the prior drillings and the abandonment of the leases, furnished no basis for any reasonable expectation on the part of appellant of bringing oil in on the leases in commercial quantities.

Appellant complains of the change in testimony on the part of some of the Government witnesses since the first trial. In the main, the changes made a stronger case against the appellant. The inconsistencies, if such they were, were fully developed by appellant on cross-examination, and presented a question of credibility for the jury. Butzman v. United States, 6 Cir., 205 F. 2d 343, 349, certiorari denied 346 U.S. 828, 74 S.Ct. 50.

Appellant contends that the District Judge erred in permitting Mrs. Everlina B. Davis, one of the purchasers, to testify without personally determining her mental competency. Counsel stated to the Court that he had been advised that she had been taking shock treatments at a sanitarium for a mental disorder. Following some discussion of the matter between the Court and counsel, which disclosed that counsel had no personal knowledge in the matter, the Court requested the Assistant District Attorney to talk to her outside of the court room. He did so and reported that about a year or so before, she was involved in a bad automobile accident and they had given her shock treatments because of her worry about her son, who received a bad head injury in the accident, but that she was in full possession of her faculties. Although appellant’s counsel requested the Court to make a personal examination of Mrs. Davis’s mental competency, which was not done, and to which action he excepted, he offered no evidence or indicated he had any to offer, that would tend to discredit this report to the Court. He was offered the opportunity of talking to the witness himself, but did not do so. Upon becoming a witness, Mrs. Davis testified that she was a graduate of the University of Tennessee, was employed by the Mid-South Plumbing and Heating Company in Memphis in doing estimating work, for which firm she had worked for more than nine years, and that she had returned to work immediately after the accident in order to keep busy. Her testimony, both on direct and cross examination, was responsive and clear, and on this review gives no indication of mental incompetency.

The question of the competency of a witness is for the Court, not the jury. If the competency of a witness is challenged before testifying, it is the duty of the Court to make such examination as will satisfy it of the competency or incompetency of the witness. The form of the examination rests in the discretion of the Court. It is the better practice for the trial judge to either question the witness himself or to be present when the examination is conducted by counsel, and to rule on the basis of the evidence so heard. However, when a mature person of normal appearance and demeanor is offered as a witness, he is presumed to be a competent witness and incompetency must be shown by the party objecting to him. Stephan v. United States, 6 Cir., 133 F.2d 87, 95, certiorari denied 318 U.S. 781, 63 S.Ct. 858, 87 L. Ed. 1148, rehearing denied 319 U.S. 783, 63 S.Ct. 1172, 87 L.Ed. 1727. Whether, on the facts developed, the witness is found by the Court competent or incompetent to testify, is the exercise of sound judicial discretion, which finding will be accepted on review in the absence of its abuse. Stephan v. United States, supra; United States v. Tannuzzo, 2 Cir., 174 F. 2d 177, 181. Under the circumstances in this case, we find no prejudicial error in receiving the testimony of Mrs. Davis.

Appellant complains of the refusal of the District Judge to give numerous requested instructions to the jury. It is unnecessary to set them out in detail here. In general they dealt with the necessity of the Government proving that the appellant made the particular representations and promises described in the indictment, with knowledge of their falsity and with the intent to deceive regardless of other facts proven in the case; that unless these particular facts were proven beyond a reasonable doubt, the appellant should be acquitted, even though the Government proved that more than the stated number of units were sold in the first tract, and even though the jury did not approve of the character of the contract between the appellant and the purchaser; that the jury could disregard the testimony of biased witnesses, of witnesses who wilfully gave testimony materially different from that given on the former trial, of witnesses who wilfully testified falsely in a material matter, or of witnesses whom they found to be impeached; that proof of contradictory statements by a witness on a material point may be sufficient to raise a reasonable doubt; and that the appellant was guilty of no fraud in retaining any surplus proceeds for his own use after performing what his contract obligated him to do.

The trial judge is not required to instruct the jury in the exact language requested by one of the parties. It is part of the judicial office to decide upon the style and form in which to explain the applicable law to the jury. If the substance of the requested instruction is involved in the case and is correctly explained to the jury, it is not necessary to express it in the categorial form which counsel has selected. Southern Pacific Co. v. Guthrie, 9 Cir., 180 F.2d 295, 301; Runde v. Manufacturers Casualty Ins. Co., 2 Cir., 178 F.2d 130, 133; S. S. Kresge Co. v. Holland, 6 Cir., 158 F.2d 495, 499. The District Judge explained to the jury in detail “the scheme to defraud relied upon by the Government.” In other places in the charge he referred to the fact that the appellant was on trial “for the one offense only as charged in the first count of the indictment,” that it was necessary for the Government to prove beyond a reasonable doubt “that he knowingly made the false statements, representations and promises charged in the indictment,” and that it was for the jury to determine whether the Government had met the burden of proving “the guilt of the defendant Henderson beyond a reasonable doubt of the offense for which he is on trial." He explained at some length the problem presented when there were conflicts in the statements of witnesses, the tests to be used in adjudging the credibility of a witness, the methods of impeaching or discrediting a witness, and instructed the jury specifically that it was a question of fact for the jury to determine how far the testimony of any witness had been impaired by the invalidating processes previously described. He specifically told the jury “the issues of fraud in this case are not to be determined by the fact that the defendant may or may not have made a profit in these transactions, or that those buying units lost their money.” In this trial, as in the first trial, appellant’s theory of the transactions and his defense to the indictment were fully presented to the jury by the charge of the District Court. We briefly discussed and approved in our former opinion the completeness and fairness of those instructions. Henderson v. United States, supra, 202 F.2d 400, . There was no material difference in the instructions given in the second trial. We are of the opinion that the instructions given adequately covered the points raised by the numerous special requests made by the appellant, and fairly presented the case to the jury. Louisville & Nashville R. Co. v. Tucker, 6 Cir., 211 F.2d 325, 334.

Appellant also complains of misconduct of the Government attorneys in their closing arguments to the jury, the more important instances being an appeal to the patriotism of the jury to protect the public, references to the purchasers as poor people and “suckers,” statements of personal belief and the appellant’s guilt, and incorrect statements of facts not justified by the evidence.

Unless calculated to inflame the minds of the jurors, an appeal to the civic responsibilities of jurors as law-abiding citizens is not misconduct. Remus v. United States, 6 Cir., 291 F. 501, 511-512; Tuckerman v. United States, 6 Cir., 291 F. 958, 969; Stassi v. United States, 8 Cir., 50 F.2d 526, 532; People v. Mizzano, 360 Ill. 446, 196 N.E. 439.

It is of course permissible for the district attorney to ask the jury for a conviction. Nichamin v. United States, 6 Cir., 263 F. 880, 882. In doing so the district attorney has the right to summarize the evidence and urge upon the jury all reasonable inferences and deductions from the evidence. It is not misconduct on his part to express his individual belief in the guilt of the accused if such belief is based solely on the evidence introduced and the jury is not led to believe that there is other evidence, known to the prosecutor but not introduced, justifying that belief. United States v. Battiato, 7 Cir., 204 F. 2d 717, 719; Gridley v. United States, 6 Cir., 44 F.2d 716, 739, certiorari denied 283 U.S. 827, 51 S.Ct. 351, 75 L.Ed. 1441; United States v. Klein, 7 Cir., 187 F.2d 873, 876-877; United States v. Holt, 7 Cir., 108 F.2d 365, certiorari denied 309 U.S. 672, 60 S.Ct. 616, 84 L. Ed. 1018, rehearing denied 309 U.S. 698, 60 S.Ct. 806, 84 L.Ed. 1037. Examples of the application of the rule can be found in the following cases: People v. Caylor, 386 Ill. 501, 54 N.E.2d 514; People v. Mizzano, supra, 360 Ill. 446, 196 N.E. 439; West v. State, 134 Tex. Cr.R. 565, 116 S.W.2d 726; Tomlinson v. State, 137 Tex.Cr.R. 600, 132 S.W. 2d 413; Shank v. State, 189 Ark. 243, 72 S.W.2d 519; Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374; People v. Pratchner, 9 Cal.App.2d 451, 50 P.2d 75; People v. McElheny, 221 Mich. 50, 56, 190 N.W. 713. In our opinion the present case falls within the scope of the rule.

Where the nature of the offense charged reasonably includes a consideration of the economic status of the injured persons, as in a scheme to defraud, a defendant has no just cause to complain if their status is disclosed and commented upon in presenting the case tó the jury. Norman v. United States, 6 Cir., 100 F.2d 905, 907. In any event, the District Judge instructed the jury to disregard any references to the economic status of the purchasers, as it was not a question to be considered in the case.

This case, both in the first trial and in the second one, was a hotly contested one. The present trial took approximately eight days time. Counsel for the respective parties engaged in lengthy and vigorous argument to the jury. Differences of opinion and clashes between opposing attorneys were inevitable. A vigorous prosecutor in the heat of argument may at times use intemperate language, sometimes provoked by tactics or argument of opposing counsel. It is of course subject to control by the trial judge, with or without objection being made by the complaining party. United States v. Goodman, 7 Cir., 110 F.2d 390, 395. But it must be remembered that in the closing argument to a jury, the government attorney is an advocate, as is counsel for defense, and proper oratorical emphasis is denied to neither. Di Carlo v. United States, 2 Cir., 6 F.2d 364, 368; Remus v. United States, supra, 291 F. at page 511. We do not consider the remarks complained of in the present case as depriving the appellant of the fair trial to which he was entitled. Kowalchuk v. United States, 6 Cir., 176 F.2d 873, 877; Sharp v. United States, 6 Cir., 195 F.2d 997, 999; United States v. Goodman, supra.

The judgment is affirmed.