# Lindsey v. United States > Court of Appeals for the D.C. Circuit · December 1, 1942 · 133 F.2d 368 URL: https://www.frixlaw.com/law-library/cases/9650656 ## Case - **Full name:** Lindsey v. United States - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** December 1, 1942 - **Citations:** 133 F.2d 368; 77 U.S. App. D.C. 1; 1942 U.S. App. LEXIS 2507 - **Precedential status:** Published - **Opinion:** Dissent by Edgerton - **Judges:** Stephens, Edgerton, Rutledge - **Cited by:** 45 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9650656 ## Opinion text EDGERTON, Associate Justice (dissenting)- “The extent of cross-examination rests in the sound discretion of the trial judge.” 1 .. A judge uses unsound discretion if he excludes proper questions which might bréale the force of important testimony. The cases of Alford v. United States 2 and District of Columbia v. Clawans 3 were of that sort. This case is not. The government psychiatrists, Drs. Lind and Schneider, were cross-examined at length. The cross-examination of each occupies more than a dozen printed pages of the record. Both witnesses had twice given general mental examinations to the appellant. On the second occasion, the Kent test was a part of *379 the examination. Both witnesses were asked, and allowed to answer, why they concluded that appellant was “uncooperative” or “malingering” on the second occasion and that his Kent score did not reflect his real ability. Neither witness limited his explanation of this matter to the fact of appellant’s self-contradictions, i. e., opposite answers to identical questions. On the contrary, both witnesses emphasized the fact that, on the first examination, appellant had answered questions intelligently. This was conclusive, they pointed out, both on the crucial question of appellant’s sanity and on the question whether he was shamming when, on the second examination, he talked like an imbecile. Both witnesses emphasized the fact that on the second examination appellant appeared to be sulky, and frequently said “I don’t know,” and the like, in response to simple questions which, as the witnesses knew from his first examination, he could answer if he chose. Yet it is said that appellant’s counsel should have been allowed to elicit the views of these two witnesses with regard to the bearing, if any, upon the question whether appellant was malingering on his second examination, of his alleged self-contradictions in the Crownsville hospital when he had no apparent motive for shamming. In my opinion the court might, in its sound discretion, have excluded all inquiry into the views of the witnesses on this subject. However, the court did not do so. Dr. Lind was cross-examined on the point before objection was made, and testified that appellant’s having made contradictory statements in the Crownsville hospital would “not in and of itself” indicate anything “at all” to him. The question put to Dr. Schneider was poorly phrased and ambiguous, and was apparently excluded on that account. 4 The court did not intimate that it would exclude a question definitely directed to the bearing, if any, of the Crownsville self-contradictions either upon the ultimate issue of appellant’s sanity or upon the question whether he was malingering oh his second examination. Counsel made no attempt to pursue the inquiry. There is no reason to believe that pursuit of it would have reduced the effect, in the minds of the jury, of the positive and reasoned testimony of Dr. Lind and Dr. Schneider that appellant was sane. The other instances in which the court limited cross-examination seem to me equally proper and equally unimportant.- Dr. Gross was not disqualified as an expert in mental disease by his frank statement that his experience with marijuana was limited. He did not even disclaim all knowledge of marijuana. He said, “I read about it; my personal experiences are very small.” He answered some questions, and said that he could not answer others, on that subject. His conscientious disclaimer, and his refusal to guess, where he lacked knowledge, increase rather than diminish the value of his positive testimony that appellant was sane. Whether the court ruled that Dr. Ogden was not qualified to testify as an expert in mental disease is not entirely clear; but nothing in the record suggests that such a ruling, if made, kept out any testimony which appellant wished to introduce. The District Attorney said, “I do not think the doctor is qualified.” The court replied, “I do not think we have enough — you can ask what he did in connection with the commitment of this man.” This was apparently satisfactory to appellant’s counsel, for he said “I see” and proceeded to draw from Dr. Ogden a full account of the episode which culminated in the doctor’s committing appellant to the Crownsville mental hospital. The doctor testified: “I felt that he was commitable to an insane hospital and I wrote the commitment certificate.” No question which counsel asked the doctor was excluded, and no proffer or suggestion indicates that counsel was deterred from asking any question which he wished to ask. No evidence of self-defense was introduced, except certain extra-judicial self- *380 serving statements of appellant which were reported by various witnesses. Counsel did not argue self-defense to the jury, or ask'an instruction on the subject. Both sides declared themselves satisfied with the court’s charge. The only defense offered to the jury was insanity. Nevertheless, it is now urged' that the judge’s charge was not sufficiently favorable to appellant with regard- to self-defense and the related subject of specific intent to kill. Counsel and court proceeded, throughout the trial, on the assumption that there was no substantial evidence favorable to, appellant' on those subjects. I see no basis for saying that counsel and court were wrong. Appellant contends that the rape statute, by authorizing the jury to choose between a life sentence and a death sentence, deprives appellant of trial by jury. This is nearly a contradiction in terms. The authorities are the other way. Death sentences under this same statute have been affirmed by this court, in Green v. United States 5 and in the recent case of Robinson v. United States; 6 and a jury’s authority, under a similar statute, to choose between a life sentence and a death sentence was upheld by the Supreme Court in Winston v. United States. 7 In the Robinson case, a motion for stay of execution raised the contention that the statute was unconstitutional. On October 9, 1942, we rejected the contention, declined to certify the question to the Supreme Court, and refused the stay. The question is not open here. We have studied the record with the anxious care which is inevitable in a capital case. In my opinion there were no errors of the slightest consequence, and the judgment should be affirmed. It is neither correct nor useful to attach “the monstrous penalty of a new trial” 8 to supposed technical errors, if any, which are not prejudicial. District of Columbia v. Clawans, 300 U.S. 617, 632 , 57 S.Ct. 660, 665 , 81 L.Ed. 843 . Glasser v. United States, 315 U.S. 60, 83 , 62 S.Ct. 457 , 86 L.Ed. 680 . 282 U.S. 687 , 51 S.Ct. 218 , 75 L.Ed. 624 . 300 U.S. 617 , 57 S.Ct. 660 , 81 L.Ed. 843 . Counsel: “Very -well, then, Doctor. On February 16, if he is in an institution for the insane and he is trying to get out, and on February 16th he makes this statement, that he was born in Winston-Salem March 29, 1922 — that is on February 16th. On the next day, he comes up before a staff conference * * *, and he says that he was born in the State of New Jersey. On that one statement alone, Doctor, would you say that the man was lying and malingering? * * * ” The Court: “ * * * I don’t think that he can answer your question from that one thing, that the man made two different statements as to the date of his birth — whether that is malingering. I do not think it sheds any light on the doctor’s credibility, and I sustain the objection.” 76 U.S.App.D.C. 29 , 128 F.2d 322 . 172 U.S. 303 , 19 S.Ct. 212 , 43 L.Ed. 456 : All the elements of trial by jury, which the Supreme Court enumerated in Patton v. United States, 281 U.S. 276, 288 , 50 S.Ct. 253 , 74 L.Ed. 854 , 70 A.L.R. 263 , were present in the instant ease. 1 Wigmore, Evidence, 3d Ed.1940, § 2L --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650656. Public record. Not legal advice.