he had given both numbers correctly, from his original notes (Tr. 26-27).
In rebuttal, the government called the stenographer who checked her notes and found that 773 and 850 were correct (Tr. 75-76).
The likelihood of there being more errors in the transcript than normal is enhanced by the loud noises arising from the construction of a new federal building across the street and the remodeling of the ninth floor of the present United States, Court House and post office to provide facilities for the two most newly-appointed Judges (See Tr. 78).
The entire matter of impeaching the credibility of the witness by prior inconsistent statements was adequately covered in the Court's charge:
'Similarly, if a witness on a prior occasion, has given an inconsistent statement or told a different version of the transaction, then that can be proved in order to affect or test the credibility and trustworthiness of the witness' memory and in that connection in this case, we have had quite a bit of testimony regarding the preliminary hearing before the United States Commissioner.
'I might state that the defendant is always presumed to be innocent until the jury is satisfied by testimony produced here in court that he is guilty and the fact that a defendant has been arrested or has been indicted or that a preliminary hearing has been held, has nothing to do with the issue of guilt or innocence and so that the steps taken in the proceedings before the Commissioner are simply preliminary steps, procedural steps that have to be taken in order to bring the case here for trial before you and none of that is probative at all on the issue of guilt or innocence.
'The only purpose for which this testimony concerning the preliminary hearing is offered, is to affect the credibility of the agent, because it is contended by the defendant that Mr. Larkin at that time testified that the number was 733 instead of 773 or whatever it may have been and Mr. Larkin has testified in rebuttal to that contention, that he testified both times from his notes and that the number was 773 or whatever it may have been.
'There again, what the number actually was is of no importance. Playing any number is just as much a violation of the wagering tax laws as any other number would have been. But as I say, whether it was a green Chevrolet or a black Ford, the number that he remembers playing is of pertinence solely with respect to the accuracy of his recollection and his memory and his trustworthiness and reliability as a witness.' (Tr. 141-143).
The charge also made it clear that the Court was not expressing any opinion regarding the fact questions to be determined by the jury. The charge states:
'In that connection, I should perhaps state what the attorneys state and what the Court says is not evidence in the case. All the evidence comes from the witnesses. If the Court inadvertently says anything about the facts of the case, it is purely for purposes of illustration with regard to the applicability of the principles of law that apply to the case.
'The instructions of the Court regarding the law you are required to accept but with regard to the facts of the case, it is your province alone to determine the facts based upon your evaluation of the evidence.' (Tr. 138).
Defendant also contends that it was the duty of the government to call another Internal Revenue agent (James Good) who accompanied Agent Calvin Shishido on the raiding party which arrested defendant. It is not clear from the testimony of Shishido whether or not Good was with him at all times during the raid and heard the statements made by defendant concerning his familiarity with the tax stamp requirements. In any event, Good's testimony would only have been corroborative or cumulative. It was not a necessary or essential part of the government's case, and the government was under no duty to call him. Morton v. United States, 79 U.S.App.D.C. 329, 147 F.2d 28, 31 (1945); Fielding v. United States, 164 F.2d 1022, 1023 (C.C.A.6, 1947); Wigmore on Evidence, II §§ 285-290.
Similarly there was no duty to notify defendant's counsel in advance that an error had been discovered in the transcript of the preliminary hearing before the Commissioner. Those proceedings were purely procedural steps, not relevant to the issue of guilt or innocence, and became material only when defendant brought up the question in an attempt to attack Larkin's credibility.
Likewise we find nothing in the wrangling or personalities exchanged in this record which goes beyond the normal decibel level. The attorney for the government did not violate the traditional limitation to striking hard, but not foul, blows. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 237-243, 60 S. Ct. 811, 84 L. Ed. 1129 (1940).
Defendant also argues, in seeking a new trial, that a cautionary instruction about identification should have been given, citing the Pennsylvania case of Com. v. Kloiber, 378 Pa. 412, 424, 106 A.2d 820 (1954), to which may be added Com. v. Saunders, 386 Pa. 149, 156, 125 A.2d 442 (1956). The doctrine of these cases, however, is that 'where the opportunity for positive identification is good, and the witness -- as here Hargrove (lege Larkin) -- is positive in his identification, such testimony need not be received with caution.' Larkin's identification was so positive, and unshaken by cross-examination, that the possible applicability of the Pennsylvania cautionary rule never even occurred to the Court at the trial. This was not a case of doubtful identification, as where a masked marauder is dimly descried across a misty moor by moonlight. Nevertheless an instruction based upon the above Pennsylvania cases would probably have been given if defendant had requested it. But no such request was made (Tr. 156-60). Defendant is therefore precluded from urging this point now, even if it had merit.
The motion for new trial is denied.
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