Petition for Writ of Certiorari — Smith v. United States

are , Office-Supreme Court, U.S,

ae i | on, Paty” \ F | # E D

. es a i} e MAR ‘29 1966

JOHM F. DAVIS, GLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 116. 3

HAROLD FRANKLIN SMITH,

Petitioner,

Vs.

UNITED STATES OF AMERICA.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

JoHN N. CruDuPp

Gainesville, Georgia

Rosert B. THOMPSON

Gainesville, Georgia

Attorneys for Petitioner

E. L. Munpmuaut, Inc., 986 Cherry Street, Kansas City, Mo. 64106, HArrison 1-8080

INDEX

Reference to Official Report ...

1

Jurisdiction .. a “2

- Questions Presented .................... 2

Statement of the Case .............. 3

Reasons for Granting the Writ ....... 6

Comb ncn senn enn ncneecnsnnesnnsenesnczencencenscnensctensansenezensvoesensenes 8

-Proof of Service ........................... saith AEE NI mae 9

Appendix—

a udgment of Appeals Court Al

Order Denying Rehearing ......... A2

Opinion of Appeals Court ....... sicacieasamehinintehies A4

Case CrTED

Michelson v. United States, 335 US. 469, 93 L.Ed. 168... 7

©

°

9

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No.

HAROLD FRANKLIN SMITH,

Petitioner,

: vs. ,

UNITED STATES OF AMERICA.

\ : |

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT :

(a)

REFERENCE TO OFFICIAL REPORT

The opinion of the United States Court of Appeals for

*the Fifth Circuit in this case is reported in F.2d

A copy of the official opinion of.this case is appended

hereto. (R. 79/80).

a , Pe ae fe

3 (b) \

GROUNDS OF JURISDICTION —

The opinion sought to be reviewed, entitled Harold

Smith v. United States of America, No. 22156, is dated .

January 24, 1966. x

The jurisdiction of this Court is invoked under 28 U.S.C.

1254 (1), and under and by virtue of Title 18 U.S.C. 3772,

within the time provided for in Rule XI and Rule 22 (2)

of the Rules of Practice and Procedure of the Supreme

Court of the United States. |

Jurisdiction of this Court is invoked because the United

States Court of Appeals for the Fifth Circuit has decided

important questions of federal law of gravity and impor-

tance in the administration of criminal justice which have

not been, but should be settled by this Court. Said Court

has misconstrued and applied decisions of this Court re-

specting the instructions which must be given to the jury,

and has so far departed from the accepted and prescribed

course of judicial proceedings so as to require the exercise

‘of this Court’s power of supervision.

(c) |

QUESTIONS PRESENTED

| 1.

Did the District Court err in instructing the jury that

it was permitted to consider impeachment evidence as an

aid in determining appellant’s credibility by comparing his

testimony with that of other witnesses?

3

(d) eo

STATEMENT OF CASE

Appellant was indicted by a six count indictment

charging violations of Internal Revenue laws relating to

distilled spirits. He enteréd a plea of not guilty and was

tried before a jury of the United States District Court for

the Middle District of Georgia, Athens Division, on Novem-

ber 30, 1964. The verdict of the jury found the appellant

- guilty ‘as charged. On December 3, 1964, appellant was

sentenced by the Court to serve two-years in the custody

of the Attorney General of the United States.

The various counts of the tediatinnel charged appel-

lant with possession of an unregistered distillery (Count

1); carrying on the business of a distiller without, having

given bond -(Count 2); carrying on the‘business of a dis-

tiller with intent to defraud the United States (Count 3);

working at an unregistered distillery (Count 4); posses-

sion of nontaxpaid distilled spirits (Count 5); and con-

cealing distilled spirits with intent to evade the taxes on

the same (Count 6). A co-defendant, Tom C. Watson,

pleaded guilty to the indictment and is not involved in

this case.

Officer Maine a Federal Revenue Agent, testified that

in the early morning hours of August 21, 1964, he located

a distillery in Oconee County, Georgia. (R. 6). On the

same date, after securing a search warrant, he and other

officers returned to the site and found the distillery in

operation. (R. 8). The distillery was under a shelter and.

. Main saw one man moving around under the shelter. (R.

9). That man, later identified as appellant (R. 11) was

near the catchbarrel and he was “moving about and han-

dling the different articles there.” (R. 10). After being ad-

vised of his constitutional rights with respect to making a

4

statement, appellant virtually confessed to operating the

distillery (R. 11/13), and stated that he was living in the

nearby barn which was connected with the operation of the

distillery. (R. 14). He further to!< the officers, “I don’t

have nothing to do with that jarring up, up there. I just

run the still.” (R. 21). 3

The other government witness, Agent J. Byron Davis,

testified that after appellant was arrested at the distillery,

he accompanied appellant to the barn. Appellant asked

him if he could change his clothes, which request was

granted. Whereupon, appellant climbed into the loft of

the barn, removed clean clothes from a box which was un-

der ‘one of the two cots-in the loft, and changed clothes.

He placed the clothes he had been wearing in the box and

took it to jail with him. (R. 33/34).

The appellant’s wife testified that because of a family °

dispute, their 17-year-old son had left home on August

1964. (R. 38). She had received information that the boy

might be in Oconee County working at a distillery or “car

stripping or something”. Upon receiving this information,

she implored appellant to attempt: to find the boy and get

him to return home: (R. 39). Appellant testified that upon

receiving the above information he went to Oconee County

and hunted for the distillery where his son was reportedly

working. He located the distillery but it was not in opera-

tion. Three or four days later he returned, bringing Some

clothes ‘with him. (R. 40): He had returned to the distil-

lery on the Wednesday night before he was apprehended

on Friday (R. 42) and had stayed in the barn. (R. 41).

- While he was there he observed activity at the distillery.

. It was his’ purpose to wait until the operators were busy

at the distillery:and he could move in and catch his son.

(R. 41). ‘When he thought the time ‘proper, he went into

“- @

5

the distillery yard and was apprehended shortly there-

after. (R. 41). Appellant denied that he had admitted to

the officers that he had in any way participated in the dis-

‘ tillery operation, although he did engage in a general dis-

cussion concerning operation of the distillery. (R. 42/46).

_-For impeachment purposes, on cross-examination, the

United States Attorney established that appellant had pre-

viously been convicted of felonies involving nontaxpaid

whiskéy.” (R. 45/50).

In its instructions to the jury, the court, with reference

to the impeachment evidence, instructed the jury as fol-

lows:

“There is certain testimony in this case for a lim-

_ ited purpose, namely, testimony referred to generally

as impeaching testimony. It. appears from the evidence

that this (59) defendant has either pleaded guilty or

been convicted heretofore to some felonies involving

violations of the whiskey laws. That evidence would

not be here except for the fact that the defendant is a

witness in this case. And that evidence is properly

here for such value as you desire to ascribe to it and

such as you think you should, in determining and pass-

ing upon ‘the credibility of the witness in this case.

“Wheh you come tothe function of comparing the

defendant’s testimony with the testimony of other wit-

nesses, weighing testimony, comparing testimony, then

the fact of prior convictions of felonies is a pertinent

and material fact so as to be admissible in evidence.

You would not convict this defendant in this case just

' because he was guilty on other ions, but you may

consider that record in passing#upon the credibility of

the witnesses, because the law says that a person may

be impeached by the proof of a prior conviction of

felonies.” 7 a

6

To the foregoing instructions, appellant excepted as

follows:

“If the Court, the defendant excepts to that portion

of the charge which begins similar to: ‘When you

come to the point of weighing the testimony’—with

reference to. impeachment testimony, the Court in-

structed, as we recall the charge, that ‘When you come

to the point of weighing his testimony and comparing

it with others, you will consider this evidence. as to

whether or not his testimony has been impeached.’

tis. We submit, first of all, that the charge was confusing

as given, particularly with reference to the element of

comparing his testimony with other testimony in de-

termining whether or not he has been impeached.. ©

“Secondly, we submit that the effect of the charge

was saying, ‘all things being equal, then in comparing

his testimony with the other testimony, then you would

accept the other testimony.’ We submit that the ef-

fect of the charge was that. :

“Finally, we submit that ssaiiibiahians testimony

is—that the charge was wrong as an abstract principle

of law, in that the purpose of impeachment testimony

is to aid a jury: in comparing the testimony.of one

witness with that of another.” ee

On Appeal, the Court of Appeals affirmed the convic-

tion. The Court did not decide whether or not the charge

was erroneous, but held that if there was error, “it was

at most a slight technical imperfection”.

REASONS FOR GRANTING THE WRIT

The decision of the Court below has decided an impor-

tant question of federal law which has not been settled

by this Court. Decision’ below should be reviewed because

it permits a charge to the jury which in effect evaded the

province of the jury as to how it_should go about its de-

7,

liberations. It is, of course, proper in a criminal case

for the trial court, where the evidence warrants instruc-

tion on impeachment evidence, to charge the jury with re-

spect to the effect of such evidence. Where, as here, the

evidence relates to prior felony conwictions, it is usual and

entirely permissible for the court to charge that evidence

of a defendant’s previous convictions of felonies is to. be

considered by the jury only insofar as it affects the cred-

ibility of the defendant as a witness. Michelson v. United

States, 335 U.S. 469, 93 L.Ed 168. In the present case, how-

ever, the court went much further than this. It instructed

the jury to not only consider the evidence as it might re-

late to appellant’s credibility as a witness, but also in com-

paring his testimony with that of the other witnesses.

The court correctly charged the jury that it could not

convict appellant because the evidence showed that he had

been guilty on other occasions. However, this did not re-

move the prejudice to appellant arising from its instruction

that it should consider the impeachment evidence in its

function of comparing his testimony with that of other wit-

nesses. The effect of the charge, we submit, was to instruct

the jury that in view of the impeachment evidence, “all

things being equal, then in comparing his (appellant’s)

testimony with the other testimony, then you would accept

the other testimony.”

The purpose of impeachment evidence is to aid the jury

in determining the credibility of the witness, and not to

aid the jury in the comparison of the testimony of one

witness with that of another. The function of the jury in

this regard is to determine whether the witness has been

successfully impeached; whether he is worthy of belief. We

do not contend that in the execution of this function it is

not proper for the jury to consider the witnesses’ testimony

8

‘in the light of all of the facts of the case. We do contend,

however, that it is improper for the court to instruct the

jury that the purpose of such evidence is to aid it in com-

paring the witnesses’ testimony with the testimony of

others.

The Court below sought to avoid the question raised

by appellant’s appeal and to hold simply that the lafiguage

complained of a slight technical imperfection. Since the

jury did return a verdict of guilty, it cannot be considered

a harmless technicality and cannot be avoided simply be-

cause the government had a convincing case. If such a

procedure was continued, then defendant’s testimony in any

criminal case would amount to a futile act and destroy a

fundamental right of defendant to testify in his own behalf

and to have that testimony be given the same weight as

any other testimony under the general rules of evidence.

The question presented by this case is of great and re-

curring significance in the administration of criminal jus-

tice. The serious question of public policy. involved here

and the effect of the decision below, if unreversed, upon the

administration of criminal law makes this case a peculiarly

appropriate ‘one for the exercise of this Court’s dis-

cretionary jurisdiction.

CONCLUSION

For the reasons set out above, it is respectfully sub-

mitted that this petition for a writ of certiorari should be

granted. :

Respectfully submitted,

Joun N. Crupup

Rosert B, THOMPSON

CERTIFICATE OF SERVICE

I hereby certify that true copies of the foregoing peti-

tion of Harold Franklin Smith were this date deposited -

in the United States Post Office, Gainesville, Georgia, with

air mail postage prepaid, addressed as follows: Solicitor

General, Department of Justice, Washington 25, D. C.;

Rufus D. McLean, Esq., Special Attorney; Department. of

Justice, Washington 25, D. C.i; and, E. Coleman Madsen,

Esq., United States Attorney, Miarhi, Florida.

ROE simnions day of March, 1966.

Joun N. Crupup

)

Al

| APPENDIX A

United States Court of Appeals

FOR THE FIFTH CIRCUIT

October Term, 1965

No. 22156

D. C. Docket No. 2222-Criminal

HAROLD FRANKLIN SMITH,

Appellant,

versus

UNITED STATES OF AMERICA,

Appellee.

Appeal from the United States District Court for the:

Middle District of Georgia.

Before Brown and CoLEMaN, Circuit Judges, and Garza,

District Judge.

Judgment

cause came on to be heard on the transcript of

rd from the United States District Court for the

ON CONSIDERATION WHEREOF, It is now -here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the-same is

sania affirmed.

January 24, 1966

Issued as Mandate: February 15, 1966

RPE telniatibien tk:

toh Bh: TAY

SLA Rg AME aie RA tba iis RMA ITE Bek ARI Nettles CER

CG

APPENDIX B

IN THE

United States Court “ Appeals

FOR THE FIFTH CIRCUIT

No. 22156

HAROLD ’ SMITH, |

AppeMant,

versus

UNITED STATES OF AMERICA,

ae | _—*

Appeal from the United States District Court fag the

Middle District of Georgia.

(Filed in the U. S. Court of Appeals March 1, 1966,

Edward W. Wadsworth, Clerk) }

Before Brown and Coteman, Circuit Judges, and Garza,

District Judge.

ON CONSIDERATION OF THE MOTION of Appel-

lant for recall and stay of judgment issued as mandate in >

the above numbered and entitled cause, to enable Appel-

lant to apply for and to obtain-a writ of certiorari from

the Supreme Court of the United States,

IT IS ORDERED that the judgment issued as man-

date to the clerk of the United States District Court at

Macon, Georgia, on February 15, 1966, be recalled and

stayed to and including Magch 31, 1966, the stay to con-

tinue in force until the final disposition of the case by ©

A3.

a

the Supreme Court, provided that within sagd period there

shall be filed with the Clerk of this Court the certificate

of the Clerk of the Supfeme Court that certiorari peti-

tion and record have been filed.

IT IS FURTHER ORDERED that the Clerk shall is-

sue the judgment as mandate upon the filing of.a copy

of an order of the Supreme Court denying the writ, or

upon the expiration of the above period unless the above

mentioned certificate shall be filed with the Clerk of

this Court within that time.

A4.

ih APPENDIX C

| IN THE

United States Court of Appeals

* FOR THE FIFTH CIRCUIT

No, \“* 1566

HAROLD FRANKLIN SMITH,

Appellant,

versus

UNITED STATES OF AMERICA,

Appellee.

Appeal from the United States District Court for the

Middle District of Georgia.

(January 24, 1966.)

Before Brown and CoLEeMaAN, Circuit Judges, and GArRza,

District Judge.

~ PER CURIAM: On a trial for illicit liquor operations, —

. the Defendant-Appellant took the stand as a witness.

The Government, quite naturally and properly, offered

evidence of his prior and somewhat extensive record of

convictions. The Court received this for the limited

purpose of impeachment. The only error asserted here

is that the charge as to credibility of the accused and

other witnesses was incorrect. If there was error, and

we do not intimate that there necessarily was, it was at\_/

most a slight technical imperfection. When considered

in the light of the charge as a whole, the jury could not

possibly have been confused or misdirected by these in-

structions and no prejudicial harm resulted.

AFFIRMED.