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Montgomery, 106 Md. 461, 68 A. 205; Clem- truth? Where life and liberty depend upon ens et al. v. Conrad, 19 Mich. 170; People the testimony of another, it is in the inv. Higgins, 127 Mich. 291, 86 N. W. 812; terest of justice that the jury should have People v. Hoffman, 154 Mich. 145, 117 N. before them every fact affecting the crediW. 568; State v. O'Brien, 81 Iowa, 93, 46 bility of the witness. Otherwise, a party N. W. 861; People v. Noelke, 94 N. Y. 137, may be deprived of life and liberty by the 46 Am. Rep. 128; State v. Curtis, 39 Minn. testimony of a criminal, as well as by the 357, 40 N. W. 263; Shafer v. City of Eau evidence of one whose life is stainless and Claire, 105 Wis. 239, 81 N. W. 409; Koch character unquestioned. V. State, 126 Wis. 470, 106 N. W. 531, 3 Certain refinement of reasoning on this L. R. A. (N. S.) 1086, 5 Ann. Cas. 389; question is indulged in by some of the Lang et al. v. United States, 133 F. 201, 66 courts, as for instance in Real v. People, C. C. A. 255; Ball v. United States, 147 42 N. Y. 270, 281, the court refers to the F. 32, 78 C. C. A. 126; MacKnight v. Unit- injustice (where a witness of whom the ed States (C. C. A.) 263 F. 832; Murray v. opposite party has never before heard gives United States, 53 App. D. C. 119, 288 F material testimony, and it is learned that 1008; Wheeler v. United States (C. C. A.) most of the life of such witness has been 293 F. 588; Fields et al. v. United States, spent in jails and other prisons for crime) 221 F. 242, 137 C. C. A. 98; Christopoulo of holding that the fact could not be proved v. United States, 230 F. 788, 145 C. C. A. by the witness himself, but could be shown 98; Tierney v. United States (C. C. A.) 280 only by records existing in distant states F. 322.

which would, for the purpose of the trial, As sustaining the proposition that the be wholly inaccessible, and says: “No danmatter of permitting such question to be ger to the party introducing the witness can asked is within the discretion of the court, result from this class of inquiries, while see State v. Slack et al., 69 Vt. 486, 38 A. their exclusion might in some cases, wholly 311; Wroe v. State, 20 Ohio St. 460; Storm defeat the ends of justice.” v. United States, 94 U. S. 76, 24 L. Ed. 42; The court concluded that the witness could Commonwealth v. Racco, 225 Pa. 113, 73 A. be asked whether he had been in the jail or. 1067, 133 Am. St. Rep. 872; Parker v. penitentiary or state prison, and how much State, 136 Ind. 284, 35 N. E. 1105; Real v. of his life he had passed in such places, but People, 42 N. Y. 270.

says: “When the inquiry is confined as The rule requiring record evidence, or the to whether he has been convicted, and of best evidence of which a case in its nature what, a different rule may perhaps apply. is susceptible, is to prevent fraud, and re- This involves questions as to the jurisdicduce possibility of error to a minimum. In tion and proceedings of a court of which United States v. Reyburn, 6 Pet. 352, 366, 8 the witness may not be competent to speak” L. Ed. 424, the Supreme Court of the Unit- and says that “the extent of the crossed States said:

examination of this character is somewhat in “The rule of evidence. does not require the discretion of the court, and must necesthe strongest possible evidence of the matter sarily be so to prevent abuse"; that “this in dispute, but only that no evidence shall discretion should be liberally exercised with be given which. from the nature of the a view to arrive at the truth.” transaction, supposes there is better evi- That a witness may be asked whether he dence of the fact attainable by the party. has been in the penitentiary and for how It is said in the books, that the ground of

he ground of long, as this case holds and as many of the the rule is a suspicion of fraud, and if authorities hold, and yet to say that he there is better evidence of the fact, which is

cannot be asked whether he was in the peniwithheld, a presumption arises that the par

tentiary as the result of a conviction of a ty has some secret or sinister motive in not

felony, is a technical refinement that does

not appeal to common sense and is not in producing it. Rules of evidence are adopt

the interest of truth and justice. Why ed for practical purposes in the administra- sh

should a party be put to the expense of setion of justice, and must be so applied as

curing the record of conviction in possibly

my to promote the ends for which they are de- some far-distant court, and why should signed."

trial be delayed in order that such record How can there be any particular possibil- may be secured, if the witness who would ity of fraud or error in asking a witness know the fact better than any one else is a question which it is in his interest to deny, willing to testify against his own interest and the answer to which is wrung from him and against his own standing that he has by the court processes of securing the been convicted of a felony? A witness could

3 F.(20) 129 be asked on the stand as to the date of his the highest degree. The party inquiring of birth or the fact of his marriage. There is a witness as to his conviction of a felony in most of the states & written record of should not be bound by a false answer, if birth, likewise written evidence of marriage he can procure the record of conviction and by return to the proper county official, and refute the same. The court cannot, howthe question as to birth or marriage would ever, enter upon a trial of the question of call for secondary evidence, just as much conviction, and therefore the refutation of as the question of whether he had been con- the witness' answer should be confined to victed of a felony. All would be important the record of the conviction. Unless said facts in his life, which the witness would record is produced the answer of the witness know better than any one else.

is binding on the inquirer. That risk he From Milo Clemens et al. v. Louis Con- takes in asking the question. rad, 19 Mich. 170, 175, we quote: “We think Taylor on Evidence, vol. 3, § 1438, says the reasons for requiring record evidence of on this subject: "Fourthly, it may be conviction have very little application to a broadly laid down that where questions, put case where the party convicted is himself to a witness on cross-examination for the upon the stand and is questioned concern- purpose of directly testing his credit, relate ing it, with a view to sifting his character to relevant facts, his answers may be conupon cross-examination. The danger that tradicted by independent evidence. If, he will falsely testify to a conviction which however, questions are put with this object never took place, or that he may be mis- upon irrelevant matters, the answers givtaken about it, is so slight that it may al- en by the witness cannot be contradicted. most be looked upon as purely imaginary, The question, what matters connected with while the danger that worthless characters the witness are or are not relevant, has been will unexpectedly be placed upon the stand, discussed on a former page. In addition to with no opportunity for the opposite party what is stated there, it should be observed, to produce the record evidence of their in- that inquiries respecting the previous confamy, is always palpable and imminent.” duct of a witness will almost invariably be

This was approved as correct doctrine by regarded as irrelevant, if not connected with the Seventh circuit in Lang et al. v. United the cause or the parties. Therefore, if a States, 133 F. 201, 66 C. C. A. 255. With witness be questioned on cross-examination this we agree. We are satisfied that the respecting the commission of crimes by him correct rule, based upon sound principle on some former occasion, his answers must and supported by the overwhelming weight (except in the case of an actual conviction) of authority, is to permit the inquiry to a be taken as conclusive.” witness on cross-examination as to whether T here should be a limitation to the rule he has been convicted of a felony. We hereinbefore announced, and that limitation hereafter refer to a limitation of the rule is that the right to ask a witness on crosswhich we think should be imposed.

examination the question whether he had The question naturally arises as to how been convicted of a felony, is subject to far the inquirer is bound by the answer of some extent to the regulatory, sound disthe witness. While the cross-examiner iscretion of the court to prevent the abuse allowed a wide range under the discretion thereof. The question may be asked, not of the court for the purpose of showing the for the purpose of honestly discrediting the character of the party on the stand, and witness, but really to raise imputations may go into certain collateral matters, the against his character, where there is no general rule is that he is bound by the an foundation whatever therefor, in order to swer he obtains. Johnson v. United States, affect the jury, and hence there should be 215 F. 679, 131 C. C. A. 613, L. R. A. some discretion in the court to determine 1915A, 862; Bullard v. United States, 245 whether the question is asked for the purF. 837, 158 C. C. A. 177. Zoline's Federal pose of honestly discrediting the witness or Criminal Law and Procedure, $ 369, lays whether its purpose is merely to arouse undown the rule: “Contradiction of testi- just suspicion in the minds of the jurors. mony collateral to the issue on trial, intro- The difficulties and annoyances of the witduced for impeachment, is not ordinarily ness' chair should not be augmented by unpermissible.”

warranted insinuations or abuse perpetratWe think, however, the question of the ed by means of cross-examination. There witness' credibility is not a mere collateral is no difficulty, we think, in a court holding matter. It bears on every issue involved as an examination within bounds by the exto which such witness gives testimony, and ercise of a sound discretion, and where the that which impairs credibility is material in question is not asked with the honest pur

ness.

corf.den. x65 10. 694 69 Leit 1164

.

pose of discrediting the witness the court as to be identified as a motion presented to the
has it within its power in the exercise of court, is not a part of the record proper, and
such discretion to protect the witness and presents no question for review.
prevent unfair imputations. Our conclusion

In Error to the District Court of the in the whole matter is that a witness may be

United States for the Eastern District of asked on cross-examination, for the honest Texas; W. Lee Estes, Judge. purpose of affecting credibility, whether he has been convicted of a felony, subject to

Action at law by R. S. Barber against such limitation as the sound discretion of the Tampico Banking Company, S. A. the court may dictate to prevent abuse of Judgment for plaintiff

, and defendant the right; that the questioner is bound by brings error. Affirmed. the reply, unless the record of conviction is Oliver J. Todd, of Beaumont, Tex. (R. produced to refute the answer of the wit- E. Masterson, of Beaumont, Tex., on the

brief), for plaintiff in error. In this case the witness, Sparks, was a C. A. Lord and Wm. E. Orgain, both of leading witness for the government. With- Beaumont, Tex. (Orgain & Carroll, of out the evidence of Sparks there would not Beaumont, Tex., on the brief), for defendbe sufficient evidence to warrant a convic- ant in error. tion. There is nothing to show that the

Before WALKER and BRYAN, Circuit question was not asked in good faith for the honest purpose of affecting the credibility Judges, and CLAYTON, District Judge. of the witness. The refusal to permit the answer was error and was prejudicial.

WALKER, Circuit Judge. This action The case is therefore reversed and re

was brought in a court of the state of Tex

as by the defendant in error (herein remanded, with instructions to grant a new trial.

ferred to as plaintiff) against the plaintiff 694ega Ect 1165, laws of the republic of Mexico (herein re

in error, a corporation organized under the tt. 636

ferred to as the defendant), and by the TAMPICO BANKING CO., S. A., V. BARBER.

defendant was removed to the court below.

The record shows the following: (Circuit Court of Appeals, Fifth Circuit. De

Prior to the removal, a writ of garnishcember 13, 1924. Rehearing Denied January 31, 1925.)

ment was issued and served on the First

National Bank of Houston, Tex., and the No. 4385.

garnishee's answer showed that it had in 1. Appeal and error am242(3) - Questions not its possession $17,000 belonging to defendpresented to trial court are waived.

ant. The defendant filed in the court beWhere defendant, a foreign corporation, low a special plea to the jurisdiction of the filed a plea to the jurisdiction of the court over court, on the ground that the defendant, a it, and also exceptions to the sufficiency of the foreign corporation, was not subject to be petition, but, without waiving the plea or exceptions, filed an answer and went to trial, it sued in a district in which it was not doing not appearing from the record that the plea or business, and in which it had no agent; exceptions were presented to or ruled on by the

that pleading stating that the defendant court, it is to be presumed that defendant voluntarily submitted to the jurisdiction, and specially appeared for the sole purpose of no question on the plea or exceptions is pre- questioning the jurisdiction of the court. sented for review.

The defendant subsequently filed an answer 2. Carriers Cw58-Collecting bank liable for to the petition, which stated that defendant surrender of bill of lading without payment specially appeared, subject to its aboveof draft attached.

mentioned plea, contained exceptions to the A bank which receives for collection a draft petition because of its insufficiency in law, for the price of goods shipped, with bill of lad. and, without waiving said plea or those ing attached, to be delivered on payment of the draft, which without authority from the exceptions, put in issue the allegations of drawer surrenders the bill of lading without the petition. There was a trial before & collecting the draft, is liable for the amount, jury of the issues of fact in the case, eviand it is no defense that a partnership relation dence being adduced by the plaintiff and existed between shipper and drawee.

the defendant. 3. Appeal and error w713(1)-Ruling on mo

[1] The record does not show that the tion not shown by bill of exceptions not reviewable.

above-mentioned plea to the jurisdiction of A written motion for an instructed verdict the court, or the above-mentioned excepappearing in the transcript, but not embodied tions to the petition, were ruled on by the in a bill of exceptions or so referred to therein court, or were called to its attention. Noth

1

3 F.(20) 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 [3] In the above-stated condition of the the following effect: Plaintiff bought de- evidence, the court did not err in overrulscribed oil-well casing from E. L. Wilson ing the motion of the defendant to instruct Hardware Company, of Beaumont, Texas, a verdict in its favor. The following is all and had that company ship for him such that is shown by the bill of exceptions in easing to Tampico, Mexico, and send to de- reference to that motion: "At the conclufendant for collection its sight draft on J. sion of plaintiff's evidence, and before any M. Wiggins for the price of such casing evidence was offered by the defendant, the and collection charges, bills of lading for defendant presented and urged a motion to the casing being attached to the draft, and instruct a verdict for the defendant, which defendant expressly or impliedly agreed to motion by the court was overruled, to which collect the amount of such draft and remit action of the court in overruling that mothe same, less its charges, or else return tion the defendant then and there in open said draft with the accompanying bills of court excepted.” The transcript contains a lading. Without receiving payment of the written motion by the defendant for an inamount of the draft, defendant delivered structed verdict. That written instrument the bills of lading attached thereto to said was not embodied in the bill of exceptions, Wiggins, or some other person, to whom and was not referred to therein. It is not the casing was delivered by the carrier up- made to appear that that written motion on presentation of the bills of lading which was in any manner called to the attention accompanied the draft, and defendant failed of the court. Such an instrument is not a and refused to remit the amount of the part of the record proper, and cannot propdraft, or to return it with the bills of lad- erly be considered as a part of the record ing which accompanied it. There was evi- presented for appellate review, when it is dence tending to prove the above-mentioned not embodied in a bill of exceptions, or so allegations. The defendant resisted the referred to therein as to be identified as a claim asserted, on the ground, among oth- motion submitted to the court for its action ers, that plaintiff and said Wiggins ac- thereon. In passing on the court's aetion, quired said casing as partners, and were to

on a motion by the defendant for an inshare equally in the profits or losses when structed verdict, we look only to the abovethe shipment was completed and settlement quoted part of the bill of exceptions for inmade at destination.

formation as to what that motion contained, As above indicated, there was evidence and not to a written instrument which was tending to prove that plaintiff alone pur- not mentioned in the bill of exceptions, or chased the casing and that the shipment of in any manner authenticated by the trial it was made for him. The fact that Wig- judge. gins was to share in the profits or losses in The record shows no reversible error. dealing with the casing after its delivery at The judgment is affirmed.

revid 267reu 541 69 L Ed. 803, us suph 507 revid 2698 266, 102 Ed 268,46 Suru ca. 109 138

3 FEDERAL REPORTER, 28 SERIES ATCHISON, T. & S. F. RY, CO. v. UNITED determinative of liability, are: (a) Was STATES.

defendant's yardmaster an "operator, train (Circuit Court of Appeals, Seventh Circuit. dispatcher or other employee," within the November 26, 1924.)

meaning of the statute? (b) Were the teleNo. 3475.

phone messages that he received or trans

mitted "orders," within the meaning of the 1. Master and servant Om 13Yardmaster di. recting train movements held “operator, train

statute? dispatcher, or other employee," within Hours

[1] The facts are not involved or controof Service Act.

verted. The yardmaster in charge of the Yardmaster, in charge of switching and switching and movement of cars in the Chimovement of trains in railroad yard, who used

cago yards communicates with the Corwith telephone for giving and receiving instructions,

towerman, a few miles distant, by telewas "operator, train dispatcher, or other employee,” within Hours of Service Act, $ 2 phone. The towerman's duties are various, (Comp. St. $ 8678).

but those material to this case are limited

to those wherein he and the yardmaster co2. Master and servant om 13–Telephone com

operated in the movement of trains. munications by yardmaster as to train move. ment held "orders," within Hours of Serv.

When the towerman wanted to send a ice Act.

train into the yards, he 'phoned the yardCommunications between yardmaster and master over a wire used for that purpose towerman as to movement of trains, which re- and so informed him. If the tracks in the cipient was not at liberty to ignore, held "or

yards were sufficiently clear to admit the enders," within Hours of Service Act, $ 2 (Comp. St. § 8678); such "orders" not being limited

j try of the train, the yardmaster would reto orders issuing from train dispatcher's office, ply, “Let her come." If the tracks in the nor to written orders, but they may be given yard were full, the yardmaster, would so adby wave of lantern or by change of light in vise the towerman, or, as illustrated in the signal station.

record, he would say, “Let her follow up (Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Order.]

No. 39." In sending out trains from the

yards à similar practice prevailed. The In Error to the District Court of the

yardmaster would advise the towerman

over the 'phone that he had a train "made United States for the Eastern Division of

up” ready to "go out.” The towerman the Northern District of Illinois.

would reply, “Let her come," or "Hold her The Atchison, Topeka & Santa Fé Rail- until I get No. — out of the way,” deway Company was convicted of violating pending upon the condition of the tracks Hours of Service Act, 2 (298 F. 549), and outside the yards, etc. it brings error. Affirmed.

Question (a) above stated must be anHomer W. Davis and E. C. Craig, both

th swered in the affirmative, on the authority of Chicago, Ill., for plaintiff in error.

of Chicago, Rock Island & P. Ry. Co. v. M. C. List, of Washington, D. C., for the

United States, 226 F. 27, 141 C. C. A. 135; United States.

Chicago & Alton R. R. Co. v. United States,

244 F. 945, 157 C. C. A. 295; Chicago & AlBefore ALSCHULER, EVANS,

and

ton R. R. Co. v. United States, 247 U. S. PAGE, Circuit Judges.

197, 38 S. Ct. 442, 62 L. Ed. 1066. The

holding of these cases is to the effect that EVAN A. EVANS, Circuit Judge. Plain- the rule of ejusdem generis does not apply tiff was convicted of violating section 2 of to the construction of the words of this the Hours of Service Act (34 Stat. 1415 statute. [Comp. St. § 8678]). The material por. [2] The real controversy is over question tions of the act, so far as this case is con- (b) heretofore stated. The term "order" cerned, read as follows:

has been defined in United States v. H. B. "Provided, that no operator, train dis- & T. Ry. Co., 205 F. 344, 125 C. C. A. 481, patcher, or other employee who by the use and with the conclusions there reached we of the telegraph or telephone dispatches, re- agree. “Orders," as used in this statute, ports, transmits, receives, or delivers or should not be limited to train orders issuders pertaining to or affecting train move- ing from the train dispatcher's office. Neiments shall be required or permitted to be ther should the term be restricted to orders or remain on duty for a longer period than reduced to writing. Orders may be given nine hours in any twenty-four hour period by one authorized so to do merely through in all towers, offices, places, and stations con- the wave of a lantern, the movement of tinuously operated night and day.”

arms, or by the change of light in a signal Two questions, the answers to which are station. *Certiorari granted 45 S. Ct. 507, 69 L. Ed ---,

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