Montgomery, 106 Md. 461, 68 A. 205; Clemens et al. v. Conrad, 19 Mich. 170; People v. Higgins, 127 Mich. 291, 86 N. W. 812; People v. Hoffman, 154 Mich. 145, 117 N. W. 568; State v. O'Brien, 81 Iowa, 93, 46 N. W. 861; People v. Noelke, 94 N. Y. 137, 46 Am. Rep. 128; State v. Curtis, 39 Minn. 357, 40 N. W. 263; Shafer v. City of Eau Claire, 105 Wis. 239, 81 N. W. 409; Koch v. State, 126 Wis. 470, 106 N. W. 531, 3 L. R. A. (N. S.) 1086, 5 Ann. Cas. 389; Lang et al. v. United States, 133 F. 201, 66 C. C. A. 255; Ball v. United States, 147 F. 32, 78 C. C. A. 126; MacKnight v. United States (C. C. A.) 263 F. 832; Murray v. United States, 53 App. D. C. 119, 288 F. 1008; Wheeler v. United States (C. C. A.) 293 F. 588; Fields et al. v. United States, 221 F. 242, 137 C. C. A. 98; Christopoulo v. United States, 230 F. 788, 145 C. C. A. 98; Tierney v. United States (C. C. A.) 280 F. 322. As sustaining the proposition that the matter of permitting such question to be asked is within the discretion of the court, see State v. Slack et al., 69 Vt. 486, 38 A. 311; Wroe v. State, 20 Ohio St. 460; Storm v. United States, 94 U. S. 76, 24 L. Ed. 42; Commonwealth v. Racco, 225 Pa. 113, 73 A. 1067, 133 Am. St. Rep. 872; Parker v. State, 136 Ind. 284, 35 N. E. 1105; Real v. People, 42 N. Y. 270. truth? Where life and liberty depend upon the testimony of another, it is in the interest of justice that the jury should have before them every fact affecting the credibility of the witness. Otherwise, a party may be deprived of life and liberty by the testimony of a criminal, as well as by the evidence of one whose life is stainless and character unquestioned. Certain refinement of reasoning on this question is indulged in by some of the courts, as for instance in Real v. People, 42 N. Y. 270, 281, the court refers to the injustice (where a witness of whom the opposite party has never before heard gives material testimony, and it is learned that most of the life of such witness has been spent in jails and other prisons for crime) of holding that the fact could not be proved by the witness himself, but could be shown only by records existing in distant states which would, for the purpose of the trial, be wholly inaccessible, and says: "No danger to the party introducing the witness can result from this class of inquiries, while their exclusion might in some cases, wholly defeat the ends of justice." The court concluded that the witness could be asked whether he had been in the jail or penitentiary or state prison, and how much of his life he had passed in such places, but says: "When the inquiry is confined as to whether he has been convicted, and of what, a different rule may perhaps apply. This involves questions as to the jurisdiction and proceedings of a court of which the witness may not be competent to speak" The rule requiring record evidence, or the best evidence of which a case in its nature is susceptible, is to prevent fraud, and reduce possibility of error to a minimum. In United States v. Reyburn, 6 Pet. 352, 366, 8 L. Ed. 424, the Supreme Court of the Unit--and says that "the extent of the crossed States said: "The rule of evidence does not require the strongest possible evidence of the matter in dispute, but only that no evidence shall be given which, from the nature of the transaction, supposes there is better evidence of the fact attainable by the party. It is said in the books, that the ground of the rule is a suspicion of fraud, and if there is better evidence of the fact, which is withheld, a presumption arises that the party has some secret or sinister motive in not producing it. Rules of evidence are adopt ed for practical purposes in the administration of justice, and must be so applied as to promote the ends for which they are designed." How can there be any particular possibility of fraud or error in asking a witness a question which it is in his interest to deny, and the answer to which is wrung from him by the court processes of securing the examination of this character is somewhat in the discretion of the court, and must necessarily be so to prevent abuse"; that "this discretion should be liberally exercised with a view to arrive at the truth." That a witness may be asked whether he has been in the penitentiary and for how long, as this case holds and as many of the authorities hold, and yet to say that he cannot be asked whether he was in the penitentiary as the result of a conviction of a felony, is a technical refinement that does the interest of truth and justice. Why not appeal to common sense and is not in should a party be put to the expense of securing the record of conviction in possibly some far-distant court, and why should a trial be delayed in order that such record may be secured, if the witness who would know the fact better than any one else is willing to testify against his own interest and against his own standing that he has been convicted of a felony? A witness could 3 F.(2d) 129 be asked on the stand as to the date of his birth or the fact of his marriage. There is in most of the states a written record of birth, likewise written evidence of marriage by return to the proper county official, and the question as to birth or marriage would call for secondary evidence, just as much as the question of whether he had been convicted of a felony. All would be important facts in his life, which the witness would know better than any one else. From Milo Clemens et al. v. Louis Conrad, 19 Mich. 170, 175, we quote: "We think the reasons for requiring record evidence of conviction have very little application to a case where the party convicted is himself upon the stand and is questioned concerning it, with a view to sifting his character upon cross-examination. The danger that he will falsely testify to a conviction which never took place, or that he may be mistaken about it, is so slight that it may almost be looked upon as purely imaginary, while the danger that worthless characters will unexpectedly be placed upon the stand, with no opportunity for the opposite party to produce the record evidence of their infamy, is always palpable and imminent." This was approved as correct doctrine by the Seventh circuit in Lang et al. v. United States, 133 F. 201, 66 C. C. A. 255. With this we agree. We are satisfied that the correct rule, based upon sound principle and supported by the overwhelming weight of authority, is to permit the inquiry to a witness on cross-examination as to whether he has been convicted of a felony. We hereafter refer to a limitation of the rule which we think should be imposed. The question naturally arises as to how far the inquirer is bound by the answer of the witness. While the cross-examiner is allowed a wide range under the discretion of the court for the purpose of showing the character of the party on the stand, and may go into certain collateral matters, the general rule is that he is bound by the answer he obtains. Johnson v. United States, 215 F. 679, 131 C. C. A. 613, L. R. A. 1915A, 862; Bullard v. United States, 245 F. 837, 158 C. C. A. 177. Zoline's Federal Criminal Law and Procedure, § 369, lays down the rule: "Contradiction of testimony collateral to the issue on trial, introduced for impeachment, is not ordinarily permissible." We think, however, the question of the witness' credibility is not a mere collateral matter. It bears on every issue involved as to which such witness gives testimony, and that which impairs credibility is material in the highest degree. The party inquiring of a witness as to his conviction of a felony should not be bound by a false answer, if he can procure the record of conviction and refute the same. The court cannot, however, enter upon a trial of the question of conviction, and therefore the refutation of the witness' answer should be confined to the record of the conviction. Unless said record is produced the answer of the witness is binding on the inquirer. That risk he takes in asking the question. Taylor on Evidence, vol. 3, § 1438, says on this subject: "Fourthly, it may be broadly laid down that where questions, put to a witness on cross-examination for the purpose of directly testing his credit, relate to relevant facts, his answers may be contradicted by independent evidence. If, however, questions are put with this object upon irrelevant matters, the answers given by the witness cannot be contradicted. The question, what matters connected with the witness are or are not relevant, has been discussed on a former page. In addition to what is stated there, it should be observed, that inquiries respecting the previous conduct of a witness will almost invariably be regarded as irrelevant, if not connected with the cause or the parties. Therefore, if a witness be questioned on cross-examination respecting the commission of crimes by him on some former occasion, his answers must (except in the case of an actual conviction) be taken as conclusive." There should be a limitation to the rule hereinbefore announced, and that limitation is that the right to ask a witness on crossexamination the question whether he had been convicted of a felony, is subject to some extent to the regulatory, sound discretion of the court to prevent the abuse thereof. The question may be asked, not for the purpose of honestly discrediting the witness, but really to raise imputations against his character, where there is no foundation whatever therefor, in order to affect the jury, and hence there should be some discretion in the court to determine whether the question is asked for the purpose of honestly discrediting the witness or whether its purpose is merely to arouse unjust suspicion in the minds of the jurors. The difficulties and annoyances of the witness' chair should not be augmented by unwarranted insinuations or abuse perpetrated by means of cross-examination. There is no difficulty, we think, in a court holding an examination within bounds by the exercise of a sound discretion, and where the question is not asked with the honest pur pose of discrediting the witness the court ness. In this case the witness, Sparks, was a leading witness for the government. Without the evidence of Sparks there would not be sufficient evidence to warrant a conviction. There is nothing to show that the question was not asked in good faith for the honest purpose of affecting the credibility of the witness. The refusal to permit the answer was error and was prejudicial. The case is therefore reversed and remanded, with instructions to grant a new trial. as to be identified as a motion presented to the court, is not a part of the record proper, and presents no question for review. In Error to the District Court of the United States for the Eastern District of Texas; W. Lee Estes, Judge. Action at law by R. S. Barber against the Tampico Banking Company, S. A. Judgment for plaintiff, and defendant brings error. Affirmed. Oliver J. Todd, of Beaumont, Tex. (R. E. Masterson, of Beaumont, Tex., on the brief), for plaintiff in error. C. A. Lord and Wm. E. Orgain, both of Beaumont, Tex. (Orgain & Carroll, of Beaumont, Tex., on the brief), for defendant in error. Before WALKER and BRYAN, Circuit Judges, and CLAYTON, District Judge. WALKER, Circuit Judge. This action was brought in a court of the state of Texas by the defendant in error (herein referred to as plaintiff) against the plaintiff in error, a corporation organized under the 677 69 LEA 11 laws of the republic of Mexico (herein re- TAMPICO BANKING CO., S. A., v. BARBER. No. 4385. 1. Appeal and error 242 (3)-Questions not Where defendant, a foreign corporation, petition, but, without waiving the plea or ex- sented for review. 2. Carriers 58-Collecting bank liable for A bank which receives for collection a draft 3. Appeal and error 713(1)-Ruling on mo- A written motion for an instructed verdict ferred to as the defendant), and by the defendant was removed to the court below. The record shows the following: Prior to the removal, a writ of garnishment was issued and served on the First National Bank of Houston, Tex., and the garnishee's answer showed that it had in its possession $17,000 belonging to defendant. The defendant filed in the court below a special plea to the jurisdiction of the court, on the ground that the defendant, a foreign corporation, was not subject to be sued in a district in which it was not doing business, and in which it had no agent; that pleading stating that the defendant specially appeared for the sole purpose of questioning the jurisdiction of the court. The defendant subsequently filed an answer to the petition, which stated that defendant specially appeared, subject to its abovementioned plea, contained exceptions to the petition because of its insufficiency in law, and, without waiving said plea or those exceptions, put in issue the allegations of the petition. There was a trial before a jury of the issues of fact in the case, evidence being adduced by the plaintiff and the defendant. [1] The record does not show that the above-mentioned plea to the jurisdiction of the court, or the above-mentioned exceptions to the petition, were ruled on by the court, or were called to its attention. Noth 3 F.(2d) 136 ing contained in the record is inconsistent destination could not justify the defendant with the conclusion that the trial of the in surrendering the bills of lading without case on its merits was entered upon and being authorized to do so by the party in concluded without the court being invoked whose behalf it undertook to collect the to rule on any pleading raising a question draft to which the bills of lading were atof its jurisdiction of the defendant, or on tached. The existence of a partnership reany exception to the legal sufficiency of the lation between plaintiff and Wiggins did petition. Rulings of the court on those not deprive the former of the right, by questions are not presented for review by making the bills of lading deliverable only a record which fails to show that such rul- upon payment of the draft which accomings were either sought or made. It may panied them, to retain control of the casing be presumed, the record not showing the until the draft for the price of it should be contrary, that the defendant submitted it- paid. The defendant, the agent for collecself to the jurisdiction of the court for the tion, made itself liable if, without being trial of the case on the merits, without in- authorized by its principal, it surrendered sisting on the matters set up in the above- the bills of lading without the drafts to mentioned plea to the court's jurisdiction which such bills of lading were attached beand exceptions to the legal sufficiency of ing paid. Hibernia Bank & Trust Co. v. the petition. Bank of Topeka (C. C. A.) 288 F. 41. [2] The petition contained averments to the following effect: Plaintiff bought described oil-well casing from E. L. Wilson Hardware Company, of Beaumont, Texas, and had that company ship for him such easing to Tampico, Mexico, and send to defendant for collection its sight draft on J. M. Wiggins for the price of such casing and collection charges, bills of lading for the casing being attached to the draft, and defendant expressly or impliedly agreed to collect the amount of such draft and remit the same, less its charges, or else return said draft with the accompanying bills of lading. Without receiving payment of the amount of the draft, defendant delivered the bills of lading attached thereto to said Wiggins, or some other person, to whom the casing was delivered by the carrier upon presentation of the bills of lading which accompanied the draft, and defendant failed and refused to remit the amount of the draft, or to return it with the bills of lading which accompanied it. There was evidence tending to prove the above-mentioned allegations. The defendant resisted the claim asserted, on the ground, among others, that plaintiff and said Wiggins acquired said casing as partners, and were to share equally in the profits or losses when the shipment was completed and settlement made at destination. As above indicated, there was evidence tending to prove that plaintiff alone purchased the casing and that the shipment of it was made for him. The fact that Wiggins was to share in the profits or losses in dealing with the casing after its delivery at [3] In the above-stated condition of the evidence, the court did not err in overruling the motion of the defendant to instruct a verdict in its favor. The following is all that is shown by the bill of exceptions in reference to that motion: "At the conclusion of plaintiff's evidence, and before any evidence was offered by the defendant, the defendant presented and urged a motion to instruct a verdict for the defendant, which motion by the court was overruled, to which action of the court in overruling that motion the defendant then and there in open court excepted." The transcript contains a written motion by the defendant for an inThat written instrument structed verdict. was not embodied in the bill of exceptions, and was not referred to therein. It is not made to appear that that written motion was in any manner called to the attention of the court. Such an instrument is not a part of the record proper, and cannot properly be considered as a part of the record presented for appellate review, when it is not embodied in a bill of exceptions, or so referred to therein as to be identified as a motion submitted to the court for its action thereon. In passing on the court's action, on a motion by the defendant for an instructed verdict, we look only to the abovequoted part of the bill of exceptions for information as to what that motion contained, and not to a written instrument which was not mentioned in the bill of exceptions, or in any manner authenticated by the trial judge. The record shows no reversible error. The judgment is affirmed. re revd 2697s 266 18 Led 268 46 Ct. 1:9. 138 3 FEDERAL REPORTER, 24 SERIES -1 ATCHISON, T. & S. F. RY. Co. v. UNITED determinative of liability, are: defendant's yardmaster an "operator, train STATES.* (a) Was (Circuit Court of Appeals, Seventh Circuit. dispatcher or other employee," within the November 26, 1924.) No. 3475. 1. Master and servant 13-Yardmaster directing train movements held "operator, train dispatcher, or other employee," within Hours of Service Act. Yardmaster, in charge of switching and movement of trains in railroad yard, who used telephone for giving and receiving instructions, was "operator, train dispatcher, or other employee," within Hours of Service Act, § 2 (Comp. St. § 8678). 2. Master and servant 13-Telephone communications by yardmaster as to train movement held "orders," within Hours of Service Act. Communications between yardmaster and towerman as to movement of trains, which recipient was not at liberty to ignore, held "orders," within Hours of Service Act, § 2 (Comp: St. § 8678); such "orders" not being limited to orders issuing from train dispatcher's office, nor to written orders, but they may be given by wave of lantern or by change of light in signal station. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Order.] EVAN A. EVANS, Circuit Judge. Plaintiff was convicted of violating section 2 of the Hours of Service Act (34 Stat. 1415 [Comp. St. § 8678]). The material portions of the act, so far as this case is concerned, read as follows: "Provided, that no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places, and stations continuously operated night and day." Two questions, the answers to which are *Certiorari granted 45 S. Ct. 507, 69 L. Ed --. meaning of the statute? (b) Were the telephone messages that he received or transmitted "orders," within the meaning of the statute? [1] The facts are not involved or controverted. The yardmaster in charge of the switching and movement of cars in the Chicago yards communicates with the Corwith towerman, a few miles distant, by telephone. The towerman's duties are various, but those material to this case are limited to those wherein he and the yardmaster cooperated in the movement of trains. When the towerman wanted to send a train into the yards, he 'phoned the yardmaster over a wire used for that purpose and so informed him. If the tracks in the yards were sufficiently clear to admit the entry of the train, the yardmaster would reply, "Let her come." If the tracks in the yard were full, the yardmaster would so advise the towerman, or, as illustrated in the record, he would say, "Let her follow up No. 39." In sending out trains from the yards a similar practice prevailed. The yardmaster would advise the towerman over the 'phone that he had a train "made up" ready to "go out." The towerman would reply, "Let her come," or "Hold her until I get No. out of the way," depending upon the condition of the tracks outside the yards, etc. Question (a) above stated must be answered in the affirmative, on the authority of Chicago, Rock Island & P. Ry. Co. v. United States, 226 F. 27, 141 C. C. A. 135; Chicago & Alton R. R. Co. v. United States, 244 F. 945, 157 C. C. A. 295; Chicago & Alton R. R. Co. v. United States, 247 U. S. 197, 38 S. Ct. 442, 62 L. Ed. 1066. The holding of these cases is to the effect that the rule of ejusdem generis does not apply to the construction of the words of this statute. [2] The real controversy is over question (b) heretofore stated. The term "order" has been defined in United States v. H. B. & T. Ry. Co., 205 F. 344, 125 C. C. A. 481, and with the conclusions there reached we agree. "Orders," as used in this statute, should not be limited to train orders issuing from the train dispatcher's office. Neither should the term be restricted to orders reduced to writing. Orders may be given by one authorized so to do merely through the wave of a lantern, the movement of arms, or by the change of light in a signal station. |