Rosen v. United States

Second Circuit

Rosen v. United States

237 F. 810, 151 C.C.A. 52, 1916 U.S. App. LEXIS 2001

CourtCourt of Appeals for the Second Circuit

DecidedNovember 14, 1916

DocketNo. 43

StatusPublished

Cited by6 cases

This text of 237 F. 810 (Rosen v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rosen v. United States, 237 F. 810, 151 C.C.A. 52, 1916 U.S. App. LEXIS 2001 (2d Cir. 1916).

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Opinions

COXE, Circuit Judge.

On the trial of Rosen and Wagner, indicted for tampering with the United States mail, a witness named Broder was called by the government. Ríe was jointly indicted with Rosen and Wagner an4 pleaded guilty. The record of his conviction in the General Sessions of New York of the crime of forgery in the second degree was offered in evidence. Objection was taken by defendants to Broder’s competency as a witness but it was overruled. Was Broder a competent witness? He was at the time of his trial about 18 years of age and was sent to the Elmira Reformatory. No time limit was fixed by his sentence. The trial judge in the case at bar considered it the equivalent of a suspended sentence. We are unable to find an authority exactly in point but we think the decision in the [811]*811couit below was in accordance with the trend of modern opinion. Broder was not of age at the time and was convicted of the crime of forgery. Sending him to Elmira was for the purpose of reforming him if possible and should not have the stigma of a prison sentence for a term of years. The theory upon which Elmira was founded and is operated was to reform and save young men who have, perhaps, thoughtlessly entered upon-a career of wrongdoing. It is a school, and reformatory; it is not a prison. ' It would be a misfortune if it were held that proof of a sentence to Elmira alone disqaulifies a witness and stigmatizes him for all time a person unworthy of credence.

The raison d’etre of the reformatory is to bring about the direct opposite of this: It is to reform and not to punish; to uplift, encourage and help the young men sent there.

We know of no case where a commitment to Elmira has been held to disqualify a witness and see no reason why an exception should be made of the present case.

The tendency of modern thought is towards the abolition of the archaic rules which undertook to declare, arbitrarily, who were and who were not entitled to credence as. witnesses and who should be absolutely debarred from taking the stand. All this is changed and now in most enlightened and progressive jurisdictions the tendency is to receive all the testimony bearing upon the issue, irrespective of the character of the witness who gives it. Proof of the commission of a crime discredits a witness but it does not absolutely exclude him from the witness stand.

The judgment is affirmed.

HOUGH, Circuit Judge, concurs in result.

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COXE, Circuit Judge.

On the trial of Rosen and Wagner, indicted for tampering with the United States mail, a witness named Broder was called by the government. Ríe was jointly indicted with Rosen and Wagner an4 pleaded guilty. The record of his conviction in the General Sessions of New York of the crime of forgery in the second degree was offered in evidence. Objection was taken by defendants to Broder’s competency as a witness but it was overruled. Was Broder a competent witness? He was at the time of his trial about 18 years of age and was sent to the Elmira Reformatory. No time limit was fixed by his sentence. The trial judge in the case at bar considered it the equivalent of a suspended sentence. We are unable to find an authority exactly in point but we think the decision in the [811]*811couit below was in accordance with the trend of modern opinion. Broder was not of age at the time and was convicted of the crime of forgery. Sending him to Elmira was for the purpose of reforming him if possible and should not have the stigma of a prison sentence for a term of years. The theory upon which Elmira was founded and is operated was to reform and save young men who have, perhaps, thoughtlessly entered upon-a career of wrongdoing. It is a school, and reformatory; it is not a prison. ' It would be a misfortune if it were held that proof of a sentence to Elmira alone disqaulifies a witness and stigmatizes him for all time a person unworthy of credence.

The raison d’etre of the reformatory is to bring about the direct opposite of this: It is to reform and not to punish; to uplift, encourage and help the young men sent there.

We know of no case where a commitment to Elmira has been held to disqualify a witness and see no reason why an exception should be made of the present case.

The tendency of modern thought is towards the abolition of the archaic rules which undertook to declare, arbitrarily, who were and who were not entitled to credence as. witnesses and who should be absolutely debarred from taking the stand. All this is changed and now in most enlightened and progressive jurisdictions the tendency is to receive all the testimony bearing upon the issue, irrespective of the character of the witness who gives it. Proof of the commission of a crime discredits a witness but it does not absolutely exclude him from the witness stand.

The judgment is affirmed.

HOUGH, Circuit Judge, concurs in result.

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237 F. 810, 151 C.C.A. 52, 1916 U.S. App. LEXIS 2001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosen-v-united-states-ca2-1916.

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