Before BIGGS, MARIS, GOODRICH, McLAUGHLIN, O'CONNELL, and KALODNER, Circuit Judges.
The three appellants herein were convicted on an information charging them with violation of Priorities Regulation 33, and amendments thereto, issued January 16, 1946, by the Civilian Production Administration under authority of Executive Order, No. 9638, 50 U.S.C.A.Appendix, § 601 note, 10 F.R. 12591, issued pursuant to Section 2(a)(8) of the Second War Powers Act of 1942, 50 U.S.C.A.Appendix, § 633. Specifically, they were alleged to have sold, wilfully and unlawfully, a one family dwelling for $10,500, which was $1,500 more than the authorized maximum sales price. Klass was the owner and builder of the house in controversy, and Stalford and Happel his agents in the sale; the latter were charged as principals on the basis of the aiding and abetting statute, 18 U.S.C.A. § 550.
Four asserted errors are the basis of this appeal: (1) The scope of the cross-examination of the appellants permitted the government, (2) the admission of evidence of other alleged similar offenses, (3) the Court's charge on character evidence, and (4) the charge of the Court relating to possible anomalous findings as to guilt.
The first two of these alleged errors may be taken together. The factual background is as follows. The government had presented its case in chief and rested. Upon the conclusion of the presentation of the defense for Klass and Happel, the governmen requested and, over objection, received permission to recall both. Questions were asked relating to sales of houses to one Krucovsky and to one Reddington. The sales were admitted, but it was denied that anything above the maximum price was demanded and/or received. Subsequently Stalford took the stand in his own defense. On cross-examination similar questions were propounded with respect to the same houses; he likewise admitted the sales, but denied having demanded or received any excess money. The defense for the three appellants concluded, the government, with permission of the court, called in rebuttal Albert Krucovsky, Martin Reddington and Frank Reddington, his father. These men testified to the purchase from the appellants of two houses in the same development as the house here involved at times subsequent to that charged in the information. They further testified that the appellants demanded and received from them a price in excess of that established as the maximum.
Objections to the cross-examination of the appellants as related, and to the rebuttal testimony of Krucovsky and the Reddingtons were overruled on the ground that the evidence so adduced went to the issue of intent and wilfullness.
In his charge to the jury, the trial judge stated: "You may consider only for the purpose of indicating intent and wilfullness the evidence of Krucovsky and the other young man and his father who gave that testimony." The government contended below, and does so here, that the evidence so adduced bore on the question of credibility as well as intent and wilfullness.
With respect to the recalling of Klass and Happel, that is ordinarily a matter left to the discretion of the trial judge, and we perceive no prejudicial error on that score per se here.
First as to the scope of the government's cross-examination:
At the outset it should be stated that we do not question the well-settled rule that a defendant who offers himself as a witness in his own behalf has the same privileges and suffers the same limitations which inhere in witnesses generally. Reagan v. United States, 1895, 157 U.S. 301, 305, 15 S. Ct. 610, 39 L. Ed. 709; Johnson v. United States, 1943, 318 U.S. 189, 63 S. Ct. 549, 87 L. Ed. 704; Brown v. United States, 3 Cir., 1936, 83 F.2d 383, 386; United States v. Bradley, 3 Cir., 1945, 152 F.2d 425, 426.
On direct examination, neither Happel nor Stalford testified on the subject of other sales of houses. Klass, on direct examination, did state that he had not "bought or sold any other houses besides this one". While it is apparent that Klass was thinking in terms of agency, nevertheless on cross-examination he admitted other sales. We do not believe that the whole subject of price insofar as other transactions were concerned was thereby opened as to any of the appellants, least of all as to Happel and Stalford.
Insofar as the extent of cross-examination is a matter resting within the sound discretion of the trial court, the learned trial judge properly ruled that the testimony with which we are now concerned was inadmissible for the purpose of attacking the credibility of the appellants.There is, indeed, a conflict as to whether acts of misconduct not resulting in conviction are the proper subject of cross-examination to impeach a witness. Cf. Little v. United States, 8 Cir., 1937, 93 F.2d 401, 409, certiorari denied 303 U.S. 644, 58 S. Ct. 643, 82 L. Ed. 1105; United States v. Sager, 2 Cir., 1931, 49 F.2d 725, 730; 3 Wigmore no Evidence (3rd ed. 1940) Sections 983, 986. In United States v. Montgomery, 3 Cir., 1942, 126 F.2d 151, at page 155, certiorari denied 316 U.S. 681, 62 S. Ct. 1268, 86 L. Ed. 1754, we said, "* * * we believe the rule with respect to impeachment for former conviction, as generally applied by federal courts in criminal cases, to be that it is only convictions for felony or misdemeanors amounting to crimen falsi which are admissible to impeach a witness' credibility." This reflects the true purpose of impeaching evidence, to disclose the personal turpitude of the witness and his insensibility to the obligations of his oath to speak the truth. Coulston v. United States, 10 Cir., 1931, 51 F.2d 178, 180. There is no reason why the standard should be less exacting where no conviction is involved. See Simon v. United States, 4 Cir., 1941, 123 F.2d 80, 85, certiorari denied 314 U.S. 694, 62 S. Ct. 412, 86 L. Ed. 555.
The government urges that the impeaching substance lay not only in the commission of another similar offense, but also in the contradiction of the appellants' testimony on cross-examination by the rebuttal testimony of Krucovsky and the Reddingtons. Except in the event of a record of conviction, contradictory extrinsic evidence is not admissible, it being long settled that the answer of the witness on cross-examination with respect to a collateral matter introduced for impeachment purposes concludes the inquiry. United States v. Novick, 2 Cir., 1941, 124 F.2d 107, 109, certiorari denied 315 U.S. 813, 62 S. Ct. 795, 86 L. Ed. 1212; United States v. Nettl, 3 Cir., 1941, 121 F.2d 927; Cohen v. United States, 1 Cir., 1932, 56 F.2d 28, 30; Coulston v. United States, supra; Sager v. United States, supra; Smith v. United States, 9 Cir., 1926, 10 F.2d 787, 788; Newman v. United States, 4 Cir., 1923, 289 F. 712; cf. Martin v. United States, 1942, 75 U.S.App.D.C. 399, 127 F.2d 865, 866; Simon v. United States, supra; see also (1914) 14 Col.L.Rev. 155; 3 Wigmore on Evidence (3rd ed. 1940) Section 979; 5 Jones, Commentaries on the Law of Evidence (2d ed. 1926) Section 2367.*fn1 It may be noted that the Sager, Cohen and Coulston cases were cited with approval in United States v. Montgomery, supra.
The court below admitted the evidence related above on the theory that it was relevant to intent and wilfullness. It is true that other criminal acts, while not ordinarily competent evidence, are admissible to show intent, motive, identity, scheme or plan, etc.*fn2 Boyd v. United States, 1892, 142 U.S. 450, 12 S. Ct. 292, 35 L. Ed. 1077, United States v. Fawcett, 3 Cir., 1940, 115 F.2d 764, 768, 132 A.L.R. 404; 2 Wigmore on Evidence (3rd ed. 1940) Section 300 et seq.
The parties have argued the meaning of the term "wilfully" as used in the statute*fn3 and the Regulation*fn4 i.e., whether it encompasses an "evil intent."*fn5 We are of the view that patently no specific intent is involved in the crime alleged to have been committed by these appellants.
In the instant case, the issue was framed by the government's charge that the house had been sold for $10,500, a sum in excess of the legal maximum, and the appellants' contrary contention that the sales price was the legal maximum of $9,000. The appellants admitted that they knew of the Regulation and also that they knew the maximum permissible sales price of the house. Mistake, accident, or any other circumstance of exculpation was not attempted to be asserted on their behalf. Accordingly, the single critical issue was whether the house was sold for $9,000 or $10,500. The rebuttal evidence of Krucovsky and the Reddingtons, therefore, was irrelevant by the time it was permitted, for clearly the fact of intent was not in controversy.
The government further seeks the admission of the rebuttal evidence on the theory that it comes within another exception to the general rule of exclusion, that is, it relates to scheme or plan. Plainly this is an after-thought, urged for the first time on this appeal. The court below did not pass upon the efficacy of the evidence, nor was the jury instructed as to its use, in this respect. See Hubby v. United States, 5 Cir., 1945, 150 F.2d 165, 168; Martin v. United States, supra. There is, moreover, sharp distinction between the requirements for showing intent and those for showing scheme or plan. 2 Wigmore on Evidence (3rd ed. 1940) Section 304. Professor Wigmore pointed out, in that work, page 202:
"When the very doing of the act charged is still to be proved, one of the evidential facts receivable is the person's Design or Plan to do it. * * * But where the conduct offered consists merely in the doing of other similar acts, it is obvious that something more is required that that mere similarity, which suffices for evidencing Intent. The object here is not merely to negative an innocent intent at the time of the act charged, but to prove a pre-existing design, system, plan, or scheme, directed forwards to the doing of that act. * * * The added element, then, must be, not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations."
It is also suggested that the trial court should pass upon the offer beforehand to see whether, if offered in its entirety it satisfies the proper test and is sufficient to go the jury, and if sanctioned, to require an assurance that it will be forth-coming in such entirety.
Here we are dealing with evidence the nature of which has been long recognized as dangerous, in this court as well as others, from the point of view of trial procedure and fairness. It is never admitted unless its use is closely circumscribed, the ultimate objective being to cut away insofar as possible its otherwise harmful effects. We doubt that the evidence recorded meets the necessary standard; particularly that given by the Reddingtons was insufficient. But where the jury has not been instructed as to the precise purpose for which such evidence is ...