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UNITED STATES v. DEWINSKY

September 29, 1941

UNITED STATES
v.
DEWINSKY et al.



The opinion of the court was delivered by: GOODRICH

I. Defendants, having been convicted of conspiracy, and two of them upon other counts as well, urge several grounds in their motions for a new trial.

The reason most strenuously urged is the trial court's failure to give instruction in the terms asked for concerning the character evidence introduced on behalf of the defendants Quick and Snover. The evidence was introduced in the usual form. The defense seasonably asked the trial court to instruct the jury in the following terms: "It is the right of a person charged with crime to have all the relevant testimony, including that relating to his good character or reputation, considered by the jury in every case, and if, on such consideration, there exists reasonable doubt of his guilt, even though that doubt be engendered merely by his previous good repute, he is entitled to an acquittal. Baker v. State, 53 N.J.L. 45 at page 47 [20 A. 858]; State v. Randall, 95 N.J.L. 452, [113 A. 231]." The court did not charge as requested but referred to the character testimony by saying: "You may consider the character witnesses, what the weight and effect of their testimony is to be, what you want to give it."

 The legal question here is a very narrow one. There is no problem of admissibility. Character evidence against a defendant or character evidence for him would be equally relevant in a trial to determine whether he committed a certain offense. The prosecution may not initially attack the defendant's character not because of lack of relevancy of such testimony but because of its prejudicial nature. But the defendant may, as is now well established, offere character testimony in his own behalf. Originally confined to capital cases it was also limited at an early date the doubtful cases. This limitation has long since been obsolete. See 1 Wigmore on Evidence, 3d Ed. 1940, §§ 55, 56. But traces of it may account for some of the misunderstanding as to the extent of the judge's duty to tell the jury when such testimony may be used. Admissibility being established the question arises, what position shall be taken about the weight of such evidence. May it (1) be considered only in a doubtful case; (2) be treated like any other evidence for whatever effect the trier of the fact believes it to be entitled, or (3) is a defendant entitled, as a matter of right, to have it especially emphasized in a charge by the judge to the jury?

 Edgington v. United States, 1896, 164 U.S. 361, 366, 17 S. Ct. 72, 74, 41 L. Ed. 467, is the starting point in the discussion of the questions just stated. Mr. Justice Shiras points out in that case that the trial judge had charged the jury that evidence of good character could be considered only if the rest of the evidence created a doubt of the defendant's guilt. This the court said was incorrect and in so holding remarked: "* * * circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although, without it, the other evidence would be convincing." That decision clearly establishes that character testimony is not to be given a limited effect by the trial court in its instruction to the jury. It certainly does not impose a duty on the trial court to single out this phase of the testimony for special instruction, although the language obviously does say that evidence of good reputation may create a doubt that a person charged with crime committed it. Apart from legal doctrine this is certainly true as a matter of common sense and is the basis for the admission of the evidence in the first instance.

 Beyond the rule of law that the effect of the character testimony must not be limited, how far should or must a trial judge go? His task is to give the jury the law applicable to the case. In some courts he is permitted to comment on the testimony; in others he is not. Whether he is or not the purpose of his charge is to give the jury a fair picture in order that they may apply intelligently the law which he states to them to their conclusions about the testimony. The charge should not be a ritual which is correct only if certain words are followed, but should be determined upon the general question of whether it fairly and correctly covers the legal problems of the case.

 In this trial as, of course, in many others, there was a large mass of testimony, the hearing of which had occupied two weeks of presentation. Numerous character witnesses had testified. Counsel for defense in summation had emphasized to the jury the importance of this testimony; the government's attorney had commented upon it also, minimizing its importance. The jury were told, with care, about reasonable doubt. Then they were told to consider the character testimony, with the other evidence, without limitation, but without emphasis.

 Reasonable doubt in a criminal trial can be created by many things. Among them may be the inherent improbability of the prosecution's case, the apparent truthfulness of the defendant himself or one of his witnesses, the breaking down of some important piece of prosecution testimony by cross-examination, the otherwise good reputation of the defendant for uprightness. This general proposition is true in this case. Where all the testimony is before the jury and they are directed both on the point of reasonable doubt and to the fact that they shall consider all the testimony, fairness does not require that the trial judge, even upon request, single out one of the elements which may create reasonable doubt and emphasize that to the exclusion of the rest. "Singling out a single matter and emphasizing it by special instruction as often tends to mislead as to guide a jury." *fn1"

 Since the Edgington case, the question of the extent to which the trial judge must go in instructing upon character testimony has been a source of considerable confusion in the decisions. The decisions in the second circuit are very clear. Two opinions by Judge Learned Hand forcefully state that court's understanding of the rule. In United States v. Kelley, 2 Cir., 1939, 105 F.2d 912, 918, complaint had been made of the judge's failure to give "the conventional request regarding the testimony of witnesses to the reputation of the accused". Upon this point the learned judge said:

 "Perhaps the judge forgot this request; perhaps he deliberately refused it; at least he said nothing about it. He was right in any event, for he was not required to give it. * * * If a judge undertakes to say anything to the jury about such testimony, he must not tell them to use it only in case the scales are already in balance. If he chooses not to speak of it at all, he is free not to do so, for it is like any other testimony; and whether he shall comment upon it lies wholly within his discretion."

 In another decision on the same point the same judge said: "The judge's charge as to the character testimony was only that the jury should consider it along with the rest, remembering that a man with a good reputation might still commit crime; and this is challenged under the doctrine of Edgington v. United States, * * * That case held no more than that a judge should not confine the use of such testimony to the event that the jury was already in doubt. There was nothing revolutionary about that, since if once they reached that point, they ought to acquit in any event. Although it is perhaps doubtful whether a jury ever in fact concern themselves with such niceties, still it was true that, if understood at all, the charge in that case told them in substance to limit their use of the testimony improperly. But if the judge avoids that pitfall, as here he did, he has as many variants among which to choose as he has in general; evidence of good character is to be used like any other, once it gets before the jury, and the less they are told about the grounds for its admission, or what they shall do with it, the more likely they are to use it sensibly. The subject seems to gather mist which discussion serves only to thicken, and which we can scarcely hope to dissipate by anything further we can add." *fn2"

 No useful purpose is served by a discussion of all the relevant authorities upon the point. There is adequate authority in accord with the cases just quoted from. *fn3" On the other hand, it is frankly admitted that there are decisions and texts which take the view that the judge must give the more elaborate instruction. *fn4" Several cases in this circuit leave the matter something less than sun clear. In Cohen v. United States, 3 Cir., 1922, 282 F. 871, 873, Judge Davis said:

 "The trial judge was not required to formulate a charge embodying the elaborate discussions upon the subject by reviewing courts -- language of a reviewing court and language of a trial court being differently phrased and used for different purposes -- but he should have instructed the jury in substance that reputation of the defendant's good character, when put in evidence, is a fact which they should consider with the other facts in the case, and further that reputation for good character is a fact which, when considered in connection with all the other evidence in the case, may, like other facts, generate a reasonable doubt. Edgington v. United States, 164 U.S. 361, 17 S. Ct. 72, 41 L. Ed. 467. * * *"

 But in Ridenour v. United States, 3 Cir., 1926, 14 F.2d 888, 892, the court, through the same judge, refused to revers where the trial judge had told the jury that the character testimony was properly to be considered by them and then continued by saying: "Testimony of good character alone, however, is not sufficient to raise a reasonable doubt in ...


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