Appeal from the District Court of the United States for the District of New Jersey; Herbert F. Goodrich, Judge.
Before BIGGS, MARIS, and JONES, Circuit Judges.
The appellant, Denton J. Quick, was convicted on the first count of an indictment which charged him and other defendants with a conspiracy to commit offenses against the United States through the possession of certain unregistered stills and carrying on the manufacture and removal of distilled spirits upon which no federal tax was paid. He was acquitted on the remaining six counts of the indictment, each of which respectively charged a separate substantive offense in fulfillment of the object of the alleged conspiracy.
Quick's participation in the conspiracy, as alleged by the government, lay in his agreeing to furnish "protection" to the owners and operators of certain illicit stills located on three farms in Sussex County, New Jersey (whereof he was the sheriff), for which service he was to receive $150 a week from the operators of the stills. Except for the testimony of one witness, the evidence offered against Quick was circumstantial and, in part, hearsay, which was competent as to him only on the basis of its being the utterance of alleged co-conspirators in furtherance of the conspiracy.
The witness who gave direct testimony for the government was one Simmons, a co-defendant, who had plead guilty. Simmons testified that he had arranged to have Quick provide "protection" to the still locations in consideration of the $150 weekly payments, and that he had made six or eight such payments to Quick. He further testified that Quick on his own initiative had warned him that a certain still location was "hot" and that operations there should cease; that on another occasion Quick, at the request of Simmons, had called the New Jersey state police for information as to the identity of an automobile seen cruising in the vicinity of a still location, whereby it was determined that it was the automobile of government agents; and further that Quick and Simmons had arranged for Quick to raid one of the stills and seize the equipment found, thus facilitating the repurchase of it by the still operators through one Greenstone, a junk man, at normal market prices.
Quick, as a witness in his own behalf, denied any part in the alleged conspiracy and further denied in toto Simmons' testimony except for the raid, which he (Qucik) assertedwas a bona fide act of law enforcement on his part, performed in conjunction with several New Jersey policemen and without any connivance with Simmons. Quick further offered independent proof that the disposition made of the seized still and equipment was in accordance with the practice approved by the Commissioner of the Alcoholic Beverage Commission of New Jersey, with whom he had personally discused the matter of disposing of the particular material. The purchasing junk man, who was called as a witness for the government, testified that the purchase was a legitimate transaction and that the price he paid was about the market price for such goods. Quick having also denied his telpehone call to the New Jersey state police, as testified to by Simmons, the government in rebuttal called as witnesses stated police officers who identified the call from Quick at the time alleged. This served to refute Quick, who, upon bein recalled to the stand, persisted in his lack of any recollection of the call but cnceded that it was undoubtedly been made as confirmed by the police officers.
We have indicated in general the sources and extent of the direct testimony in the case, not for the purpose of appraising either its probity or weight, which, of course, was within the exclusive province of the jury, but in order to consider appropriately the import and materiality of the character evidence offered by Quick, the learned trial judge having refused to charge as requested by the defendant with respect to such evidence. The appellant assigns for error the trial court's refusal of a number of requests for charge, but we think it is unnecessary to consider any more than the ones which have to do with the court's refusal to charge as requested with respect to the scope and degree of importance of the character evidence.
In final analysis, the question of the appellant's guilt or innocence depended, as is apparent, upon the word of Simmons, a self-confessed accomplice, as against that of Quick, the indicted defendant. What corroboration of Simmons there was grew out of incidental circumstances related by other confessed accomplices. In behalf of the defendant, a number of responsible residents of the community in which he had lived all of his life testified that the defendant bore a good reputation as an honest and law-abiding citizen and for truth and veracity. It was in that situation that defendant's counsel requested the learned trial judge to charge, inter alia, that - "It is the right of a person charged with crime to have all 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." There was another request for charge to like effect, couched in slightly different language. The trial court refused both of these requests but did instruct the jury in its general charge that "You may consider the character witnesses, what the weight and effect of their testimony is to be, what you want to give it." That was the extent of the charge in such regard.
The question presented, therefore, is whether the charge of the learned trial judge with respect to the character evidence met substantially the legal requirements of the situation. If it did, then the refusal of the cognate reguests for charge was not error. A court is under no duty to charge in the exact language of a request or in any particularly approved from. Young v. United States, 9 Cir., 119 F.2d 399, 403; Hart v. United States, 5 Cir., 112 F.2d 128, 132; Hancey v. United States, 10 Cir., 108 F.2d 835, 837; Le More v. United States, 5 Cir., 253 F. 887, 894. And, while a trial judge is not required, of his own motion, to charge with respect to character evidence, a request to that end is the legally appropriate and efficient means for inducing pertinent instructions by the court. Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522, 524. The right so to request within proper bounds is a defendant's privilege for the purpose of insuring that the jury be not left to grope with respect to the place and purpose in the case of relevant and material evidence. When so requested, the court is obliged to instruct the jury consonantly, if not in the form of the request, then in the language of the court. The words necessary to impart a germane instruction are for the trial court's choice so long as they are adequate for the purpose.In the matter of character evidence the jury should at least be told generally of its nature, the manner in which it should be received and considered and the weight that the jury may give to it. Cohen v. United States, 3 Cir., 282 F. 871, 872, 873.
What the court below told the jury with respect to the weight and effect of the character evidence being for their appraisal was correct so far as it went. But what the court neglected to tell the jury was that they should consider the character evidence along with all of the other evidence in the case and that, when all of the evidence had been considered, if a reasonable doubt as to the defendant's guilt then existed, it was their duty to acquit. All the court told the jury, however, in that connection was that "You may consider the character witnesses," obviously leaving it to the option of the jury whether they would consider the character evidence at all. The instruction that the weight and effect to be given to the character evidence was for the jury's determination was thus only conditionally pertinent, depending upon whether the jury elected to consider the character witnesses as the court told them they might do. This tended to discount the status of the character evidence as matter to be considered by the jury along with all of the other facts and circumstances in the case. The situation is somewhat analogous to that shown in Edgington v. United States, 164 U.S. 361, 366, 17 S. Ct. 72, 73, 41 L. Ed. 467, where the trial court left the character evidence with the jury on the conditional basis that, if all of the other evidence in the case (excluding character evidence) created a doubt as to the defendant's guilt, then the jury might consider the character evidence. In reversing, the Supreme Court said that: "Whatever may have been said in some of the earlier cases, to the effect that evidence of the good character of the defendant is not to be considered unless the other evidence leaves the mind in doubt, the decided weight of authority now is that good character, when considered in connection with the other evidence in the case, may generate a reasonable doubt. The 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."
In Sunderland v. United States, 8 Cir., 19 F.2d 202, 215, it was held that although a defendant may not require a charge with respect to character evidence in the exact words of the Edgington case, he is entitled to a charge which comports with the rule of that case by instructions which set forth (1) the purpose pose and function of character evidence, i.e. to generate a reasonable doubt; (2) the probative status of such evidence, i.e. that it be considered by the jury regardless of whether the other evidence in the case is clear or doubtful, and (3) the possible effect of character evidence, i.e. that, when considered along with the other evidence in the case, if a reasonable doubt exists as to the defendant's guilt, he is entitled to an acquittal. In Snitkin v. United States, 7 Cir., 265 F. 489, 492, the need for furnishing a jury with the "legal scales in which to weight it [character evidence]" was recognized.
Of course mere proof of good character does not entitle a defendant to a verdict of acquittal. Singer v. United States, 3 Cir., 278 F. 415, 419. But it is equally true that evidence of good character, when considered along with all of the other evidence in the case, may be the factor which creates the reasonable doubt which entitles a defendant to an acquittal by the jury. Edgington v. United States, supra. The very object of introducing character evidence is to raise in the minds of the jury a reasonable doubt as to the defendant's guilt. Rowe v. United States, 8 Cir., 97 F. 779, 781.
The rule in this circuit is in keeping with the decisions already considered. In cohen v. United States, supra, 282 F. at page 873, this court held that the trial judge "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." These requirements, when instructions with respect to character evidence are requested, have not been impaired by decisions in cases where trial courts have been sustained for refusing to approve requests which overemphasize or unduly accentuate the role and efficacy of character evidence in creating a reasonable doubt. See Kaufmann v. United States, 3 Cir., 282 F. 776, 784, 785; Pomerantz ...