Diggs v. United States

WOLVERTON, District Judge

(concurring). I am constrained, by reason of the importance of the cases under consideration, to set forth my views particularly touching the instructions of the, trial court relative to the failure of the defendants, if such were the case, to deny or explain acts of an incriminating nature that the evidence of the pros *560 ecution established against them, they having taken the witness stand in .their own behalf. In order to a clear understanding of the view I entertain, it is essential that we get a comprehensive view of the situation. - - -

First, as to the Diggs case. Diggs was indicted by six counts. By the first, he'is charged with transporting Marsha Warrington from Sacramento, in California, to Reno, in Nevada, for the purpose of debauchery, and for an immoral purpose, namely, that she should become his concubine and mistress; by the second, that he transported Lola Norris frpm and between the same points, that she might become the mistress and concubine of F. Drew Caminetti; by the third, that he (Diggs) procured a ticket for Marsha Warrington from Sacramento to Reno, with the intent and purpose that she should become his con'cubine and mistress; by the fourth, that he procured a ticket for Lola Norris, with the intent and purpose that she should give herself up to debauchery, and for an immoral purpose, to wit, that she should become the concubine and mistress of one F. Drew Caminetti; by the fifth, that he (Diggs) persuaded, induced and enticed Marsha War-rington to go from Sacramento to Reno for the purpose of debauchery, and for' an immoral purpose, to wit, that she should become his concubine and mistress; and by the sixth, that Diggs persuaded and enticed Lola Norris to go from Sacramento to Reno for the purpose of becoming the concubine and mistress of F. Drew Caminetti. Diggs was convicted on the first four counts, and acquitted on the last two. filié. elements of the offenses charged are few and simple, and comprise the transportation, the buying of the tickets, the persuasion and inducement, and the purpose with which these things were done. All were the subject of inquiry at the trial.

..The story of Marsha Warrington as a witness runs from her first meeting with Diggs in September, 1912, to the time that the four were apprehended and placed under arrest In Reno, Nev. She tells of her acts and demeanor with relation to Diggs, and of his acts and demeanor toward' her, of improper relations with him from time to time,' of a trip'to San Francisco with Diggs, Caminetti, and Miss Norris during the month of February, 1913, of Diggs’ registering under a fictitious name with her as man and wife, of occupying the same room with him at the hotel during the night, of their going on to San Jose, where they were again registered as man. and wife, and occupied the samé room in the hotel for another night, of the party of the four who met at the house of Diggs in the absence of his wife in’ January before the Reno trip, .and then in much detail the discussions between herself and. Diggs, and the four of them, and what they did leading up to the final determination to go to Reno; also of what, was done in procuring transportation, what was done on the way, and, what was done in Reno. It was a connected»sto’ry from the beginning to the end. In all material particulars she was corroborated by Lola Norris.

Maury'I: Diggs, after the government had rested, took the stand as a witness in his own behalf. He narrated in great detail the history of his relations with Marsha Warrington, and the many troubles that came to him from their acts and conduct prior to-the Reno trip; and also,, of-'the'-rélatioh'ship -existing-between- Caminetti and Lola Norris, *561 and of the relationship of the four, charging Marsha Warrington with having had improper relations with him at the time the four were met at Diggs’ house in the absence of his wife, a thing that Marsha War-rington denied. Continuing, Diggs dwelt at length upon the discussions had, and what happened between him and Marsha Warrington, and among the four of them, relative to his and Caminetti’s leaving Sacramento for a while, owing to the reports of scandal that had arisen and the trouble in which they were involved. He relates that the first conversation he bad with Marsha Warrington with respect to his leaving the city was on the Southern Pacific levee. This was two weeks and one day before March 9th, the Reno trip having been entered upon on the 10th. Then he tells of other conversations had with her, and with Caminetti and Lola Norris, relative to his and Caminetti’s leaving the city for a while to escape the odium that was threatening if they remained. One conversation he specifies as having taken place while they were on an automobile ride, when he suspected they were being followed; another during the last week, ending March 9th, at the Columbia Hotel, in Sacramento, where Diggs was in hiding, he having called Marsha Warrington up and advised her of his whereabouts; another he names as having taken place at the Peerless Restaurant. This was on Saturday. He says:

“Then there was another conversation Sunday afternoon. That was out at Twenty-Eighth and J street. I believe I had called Miss Warrington up and made an appointment to meet her out there at the Park. That was relative to my going away. I still maintained that I was going South to get away from all this trouble. Miss Warrington said, ‘Well, X have thoroughly made up my mind I am going, too. I am going with you.’ * * * The proposition was thoroughly settled right there, that we were going to get out of town. We had not talked at that time of exactly where we would go, or anything of the kind; but X was very much of the opinion that I wanted to go to Lias Angeles, owing to the fact that I had a lot of friends there that had lived there, and thought for a week or so I could have a good time down there, and come back home, and everything would be all right. I did not intend to take the girls. I did not care whether they went with me or went alone. In fact, I wanted Miss Warrington to stay. * * * After leaving Miss Warrington and Miss Norris in the Park, Miss Warrington had prevailed upon Miss Norris that she should go with her, and the girls said that we would meet at the Saddle Kock Restaurant at 8 o’clock. So I early made up my mind that I was going to leave town, and I agreed to meet them there.”

From there he went home to his wife. He continues with his story:

“After I got in my house I thoroughly made up my mind to go and see my father and ditch the appointment with the girls, and not see them any more, and take a chance on the whole business. I told my wife good-by. * * * Mr. Hamilton rode as far as Eighth and J, and got off the car, and .1 went to the depot with the full intention of going on that train and coming to Berkeley and seeing my father. I missed the train by 5 minutes, owing to the fact that I had stopped at the office to get the suit. The car did not get me there in time. I turned around and came back and went to the restaurant. The girls were not there. I went to the cigar store next door and shook dice for cigars, the ‘twenty-six’ game. In a few minutes, a little after 8 o’clock, I believe, the girls showed up. * * * In the meantime Mr. Caminetti showed up on the scene. He was pretty much under the influence of liquor. He says, ‘Well, what is doing?' I said, ‘Well, I am going, and the girls say they are going, too.’ He said, ‘Where are you going?’ I said, T don’t know; anything to get out of town for a while.’ He said, ‘Well, I haven’t got any money; I will go down town and get some,’ which he did.”

*562 Here Diggs relates that he went out and made inquiry as to the time of departure of all trains leaving Sacramento that night. Then he continues:

“So tlie thing came up; the next train leaving town was 10:45, the eastbound train, and we all agreed to catch that train. I called Mr. Caminetti úp on the telephone again. * * * He did not show up for that train. Miss Warrington and Miss Norris and I went over to the depot. When the train got ready to go, X thoroughly made up my mind between the restaurant and the depot that I did not care who went, or who was ready to go, or anything else; if the crowd was not ready to go, I was going alone; I was going to get out of town. Mr. Caminetti did not appear. Miss Norris, I believe, stayed in the little car house, the street car station at the end of the line, at the depot. Miss Warrington walked over to the Southern Pacific Station with me, and the train stopped. We were contemplating about taking it. Marsha said to me, ‘Now,’ she said, ‘You go on and take the train; if your wife is wise to ine, I am scared to death; I am afraid she will cause you harm or trouble, or have you arrested, and you better get out of here.’ I was contemplating in my own mind whether to take the train or not Then I believe I said to Marsha, ‘No, I will not take that train.’ I said, ‘If there is going to be any staying here, I am no piker, and I will stay here and face this whole thing with the rest of you; I am not going to go away and leave you here.’ Then we went back to the restaurant. Mr. Caminetti did not appear, so we went back to the restaurant. * * * We all talked over again the serious condition that we were in and where we would go. There was no specific place mentioned at the time during the conversation as to where we would go; no terminal point at all. We merely talked over different routes and different lines and different times of arrivals of different trains going out of Sacramento to the different places. There was no positive terminal settled upon at all. That is about all that occurred there. At this time Caminetti had not got back yet. In nearly every conversation we had, when we spoke of our conditions and the probable arrest of us — us boys, I mean— Marsha or Lola, either one, invariably would ask, ‘What will they do to us? What will happen to us if these things come out?’ From our meager knowledge of the law, we explained to them as near as we could what would happen if anybody chose to press them, and they thereupon would ask, ‘Who will press us?’ X cannot remember all the questions they asked, but Miss Warring-ton asked me what my wife could do to her if she knew she was keeping company with me; and I told her that, owing to the fact that she was not 21, I thought— I said I was not straight on the Juvenile Law, but I believed she could institute proceedings against her through the Juvenile Court if she wanted to. I also told her that if she had any money my wife could sue her for alienation of her husband’s affections. That was told her upon her request as to what would happen to her.”

Thus ended the examination in chief of Diggs, testifying in his own behalf.

The testimony of the government shows, and it is not disputed, that the four took the train later on the same night for .Reno. On cross-examination Diggs says: “We left for Reno two weeks after meeting her on the levee.” And again he says, referring to a ride about town: “That was one week before we left for Reno.” Further on he was asked: “In your testimony you have referred repeatedly to conversations and events that took place before the Reno trip. Now, what did you understand to mean by the Reno trip?” To which he answered, over, objections: “It is perfectly evident what trip it was.” And so it was, without question.

Now, the purpose of the defense in offering the testimony of Diggs to the point where he terminated it was threefold: First, to show that there was no persuasion or inducement on his part, causing the girls to *563 go on the trip; second, to discredit the girls; and, third, to shade the purpose for which the girls were taken or went upon the trip. This comprehends practically the whole case, except the fact of the purchase of the tickets and the transportation from Sacramento to Reno. And yet these latter are so conjoined in time and circumstance with the former that there is no discernible line of cleavage whereby the testimony touching the one set of facts may be cut off from its relation to the other.

I am firmly persuaded that the defendant, having taken the stand and offered his testimony upon the merits of his case, and having entered into it in part, rendered himself amenable to cross-examination as to the whole-, and, further, when he sought to show that the girls went upon the journey of their own free will and accord, without persuasion and inducement upon his part, then that his acts and demeanor at the time of leaving, including the purchase of tickets, and while upon the trip and at Reno, became subjects of perfectly legitimate inquiry to test the accuracy of his own rendition of how they all came to go upon the same journey. A defendant cannot tell a half story touching his defense, which is a half story from his standpoint of the merits of the case, then abruptly stop in his course and decline to answer further, and expect to reap the benefit for himself to be derived therefrom, without incurring the discredit that is, by the rules of evidence and legal inference, visited upon the ordinary witness pursuing a like course. Mr. Wigmore, in his work on Evidence (volume 4, § 2276,, subd. 2), states the rule very succinctly which I think is applicable in the present case. After having discussed the rule applicable in the case of an ordinary witness, he says:

“The case of an accused in a criminal trial, who voluntarily takes the stand, is different. Here his privilege has protected him from being asked even a single question, for the reason that no relevant fact that could be inquired about would not tend to criminate him. On this very hypothesis, then, his voluntary offer of testimony upon any fact is a waiver as to all other relevant facts, because of the necessary connection between all. His situation is distinct from that of,the ordinary witness, with reference to the point of time when a waiver can be predicated, because the ordinary witness is compelled to take the stand in the first instance, and his opportunity for choice does not come till later, when some part of the criminating fact is asked for, while the accused has the choice at the outset. From the point of view of the actual prescience of witness and accused, the result is the same. Each knows well enough that the inquiries will be upon topics relevant to the charge in issue; but that is immaterial. The question is: What does he know as to the connection between the first question and a possible subsequent incriminating question? Now, the accused knows that there must always be such a connection, and, if there is not, then his answer cannot be a waiver. The result is, then, that the accused, as to all facts whatever (except those which merely impeach his credit, and therefore are not related to the charge in issue), has signified his waiver by the initial act of taking the stand.”

Further on he says (subdivision “d”):

“The subject of the direct examination, properly construed, is the whole fact of guilt or innocence, and hence the topic of cross-examination might always range over any relevant facts except those merely affecting credibility.”

So it is said, in State v. Wentworth, 65 Me. 234, 243 ( 20 Am. Rep. 688 ):

*564 “If he [defendant] discloses part, he must disclose the whole in relation to the subject-matter about which he has answered in part. * * * Answering truly in part with answers exonerative, he cannot stop midway, but must proceed, though his further answers may be self-incriminative. Answering falsely as to the subject-matter, he is not to be exempt from cross-examination because his answers to such cross-examination would tend to show the falsity of those given on direct examination. If it were so, a preference would be accorded to falsehood rather than to truth.”

And again it is said, in State v. Ober, 52 N. H. 459, 13 Am. Rep. 88 :

“Having testified concerning a part of the transaction, in which it was alleged that he was criminally concerned, without claiming his constitutional privilege, it was too late for him to halt at that point which suited his own convenience.”

See, also, Connors v. People, 50 N. Y. 240 ; Stover v. People, 56 N. Y. 315 ; Heldt v. State, 20 Neb. 492 , 30 N. W. 626 , 57 Am. Rep. 835 ; Lee v. State, 56 Ark. 4 , 19 S. W. 16 ; Clarke v. State, 78 Ala. 474 , 56 Am. Rep. 45 ; State v. Tatman, 59 Iowa, 471 , 13 N. W. 632 ; State v. Larkin, 250 Mo. 218 , 157 S. W. 600 , 46 L. R. A. (N. S.) 13; State v. Raftery, 252 Mo. 72 , 158 S. W. 585 .

The Supreme Court has enunciated the same principle, while perhaps not deciding the exact question here involved. In Fitzpatrick v. United States, 178 U. S. 304, 315 , 20 Sup. Ct. 944, 948 ( 44 L. Ed. 1078 ), the court says:

“Where an accused party waives his constitutional privilege of silence," takes the stand in his own behalf, and makes his own statement, it is clear that the prosecution has a right to cross-examine him upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right 'to set forth to the jury all the facts which tend in his favor, without laying himself open to a cross-examination upon those facts. The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason why an accused person, who takes the stand as a witness, should not be subject to cross-examination as other witnesses are.”

In this case reference is made to State v. Lurch, 12 Or. 99 , 6 Pac. 408 , and State v. Saunders, 14 Or. 300 , 12 Pac. 441 . But these cases fall clearly within the exception noted by Mr. Wigmore. The Oregon statute seems to limit the right of cross-examination to “all facts to which he [defendant] has testified.” Sess. Laws 1880, p. 28.

In Sawyer v. United States, 202 U. S. 150, 165 , 26 Sup. Ct. 575, 579 ( 50 L. Ed. 972 , 6 Ann. Cas. 269), the court seems to have interpreted the rule slightly more broadly than was announced in the Fitzpatrick Case. It says:

“It has been held in this court that a prisoner who takes the stand in his own behalf waives his constitutional privilege of silence, and that the prosecution has the right to cross-examine him upon his evidence in chief, with the same latitude as would be exercised in the case of an ordinary witness, as tó the circumstances connecting him with the crime.”

And again, in Powers v. United States, 223 U. S. 303, 315 , 32 Sup. Ct. 281, 284 ( 56 L. Ed. 448 ), the court says:

*565 “Having taken the stand in his own behalf, and given the testimony above recited, tending to show that he was not guilty of the offense charged, he was required to submit to cross-examination, as any other witness in the case would be, concerning matter pertinent to the examination in chief.”

These cases, it would seem, in principle, decide practically the very, point in issue here. When it is once ascertained that the inquiry touching what was done at the depot on the night and at the time the four left for Reno, and what took place on the journey, and what happened at Reno, was proper and legitimate subject-matter for the cross-examination of Diggs, it follows with absolute persuasion that the court’s instruction complained of was not error for which a reversal should be had.

The case of Balliet v. United States, 129 Fed. 689 , 64 C. C. A. 201 , would seem to be opposed to this view, but we are not advised respecting the testimony offered in chief, and are without light as to the precise relation which the inferences sought to be drawn bear to the matter testified to. Sanborn, Circuit Judge, in his concurring opinion, has this to say on the subject:

“But in the federal courts the line of demarcation which limits a rightful cross-examination is clear and well-defined. It is the line between subjects relative to which the witness was examined upon the direct examination and those concerning which he was not required to testify.”

It may be that the defendant might be called to testify to some collateral fact — that is, as to some matter distinct from the real merits of the case and yet having some pertinent bearing — and not be subject to cross-examination as to the merits; as, for instance, if a defendant in a murder case were called to testify merely whether or not he was related to ¿the deceased. In such a case it would be a strange stretch of the rule to hold that he could be cross-examined as to whether he committed the murder. But where a defendant has taken the stand, and has once entered upon a disclosure or a recital of part of the details relating to the offense charged, the offense charged becomes the subject-matter of the inquiry in chief, and the defendant subjects himself to cross-examination touching the entire subject-matter. And this is my position in the present case. With all due respect for the court deciding the Balliet Case, 1 am unable to adopt its conclusion.

In the very recent case of Myrick v. United States, 219 Fed. 1 , the court was of the opinion:

“That the defendant Cunningham, by taking the stand and testifying as to the commissions paid to agents, did not waive his constitutional right to bo free from unfavorable comment on matters to which his testimony did not relate, and as to which he said nothing.”

This case I do not regard as opposed to the view here entertained.

I have discussed in particular the Diggs case. But the facts of the Caminetti case, although Caminetti did not go so minutely into the previous relationship existing between him and Diggs with Lola Norris and Marsha Warrington, bring it within the same principle, and the same conclusion would follow, Caminetti's especial purpose in testifying was to show the particular motive which induced him to embark upon the expedition.

*566 Upon all other questions in the case, I concur with the views expressed by Judge GILBERT in the prevailing opinion.