Henry v. United States

ROBB, Associate Justice

(dissenting). The most material witness at the trial of this case was John Helmus, for he it was who made all the arrangements with the firm of Lewis Johnson & Co. concerning the shares of stock for the embezzlement of which Henry stands convicted. In the first trial of this case, when, presumably, the recollection of Mr. Helmus was fresher than several years later, at the second trial, he testified as follows:

“I left the securities at the window of the bookkeeper with Mr. Lammond, who in turn handed them over to Mr. Henry.”

The witness then was asked where Mr. Henry was standing at the time, and answered:

“Standing right back of Mr. Lammond.”

At the second trial this witness, testifying with reference to the same transaction, said:

*341 “When I handed over the securities to Mr. Henry it was in the corridor.

“Q. You handed over the securities personally to Mr. Henry, did you? A. Yes.

“Q. And that was in the corridor? A. Yes.

“Q. Whereabouts id the corridor were you standing? A. Just about in front of the bookkeeper’s window; Mr. Hammond’s window. * * *

“Q. Was Mr. Hammond in the corridor at the time? A. Yes.”

No explanation was vouchsafed by the witness for this material change in his testimony. Prior to the argument, counsel for Henry, acting well within his rights, requested the court to grant a number of instructions, among them the following, which counsel brought directly to the court’s attention:

“If you find that any witness,testified before you to a material fact in a way so different from his testimony given at a prior trial as that he could not honestly be mistaken about it, then you are justified in finding that Ibis witness willfuly testified falsely, and yon may disregard Ids testimony either in whole or in part.”

This request was refused, without any intimation from the court that it would be covered in the general charge. As the majority opinion discloses, when counsel for Henry was making his argument before the jury, the trial justice, conceiving that h.e was going beyond the granted instructions, sharply reprimanded him, saying:

“The points to be argued are sufficiently intimated by the granted instructions, and you know perfectly well what they are.”

Whatever may have been in the mind of the trial judge when he refused to grant this instruction, which was peculiarly applicable to the situation, the result was to deprive counsel of the right to bring sharply to the attention of the jury the fact that the most material witness in the case had changed his testimony on a material point, and hence that his credibility had been seriously affected. No reason whatever has been advanced as to> why this perfectly proper prayer should not have been granted, and none is apparent to me. That the trial justice made an apologetic effort to cover the point, after argument, is beside the question, for through the court’s abuse of discretion counsel had been deprived of the valuable right of bringing the matter to the attention of the jury. The acquittal of Henry at the first trial, under the two counts charging larceny after trust, may or may not have influenced the testimony of this witness at the second trial, tic may have been honestly mistaken in his testimony at the first trial, and right at the second trial; but those questions were for the jury, and not for the court.

A reading of the whole record compels the belief that Henry was not accorded that fair and impartial trial guaranteed him under' the laws of the land, and that, in the particular matter to which I have adverted, his rights were seriously invaded. I therefore am. constrained to dissent from the opinion and judgment of the court.