Family, Friends & Fellow Officers Remember...

Investigator Wilford Winn Thomasson

United States Department of the Treasury - Internal Revenue Service - Alcohol Tax Unit, U.S. Government

End of Watch Sunday, February 14, 1937

Leave a Reflection

Reflections for Investigator Wilford Winn Thomasson

Rest in peace Investigator Thomasson.

Rabbi Lewis S. Davis

February 13, 2022

Your heroism and service is honored today, the 75th anniversary of your death. Your memory lives and you continue to inspire. Thank you for your service. My cherished son Larry Lasater was a fellow police officer murdered in the line of duty on April 24, 2005 while serving as a Pittsburg, CA police officer.

Time never diminishes respect and your memory will always be honored and revered.

Rest In Peace

Phyllis Loya
Mom of fallen California Officer Larry Lasater, Pittsburg PD, eow 4/24/05

February 14, 2012

United States 5th Circuit Court of Appeals Reports

YOUNG v. UNITED STATES, 97 F.2d 200 (5th Cir. 1938)
No. 8532.
Circuit Court of Appeals, Fifth Circuit.
June 7, 1938.

[fn*] Rehearing denied 97 F.2d 1023.
Page 201

Appeal from the District Court of the United States for the
Western District of Texas; Robert J. McMillan, Judge.

Ike Young was convicted of first-degree murder, and he appeals.

Reversed and remanded for further proceedings.

Ayres K. Ross, of Austin, Tex., for appellant.

W.R. Smith, Jr., U.S. Atty., and H.W. Moursund, Asst. U.S.
Atty., both of San Antonio, Tex.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Brought under Secs. 253 and 452, Title 18, U.S.C.A., the charge
of the indictment was that appellant did willfully and
voluntarily, and with malice aforethought kill by shooting with a
gun an investigator in the service of the Internal Revenue, while
engaged in the performance of his official duties.

Conceding that appellant did not actually fire the gun which
killed Thomason, the investigator, the general theory of the
prosecution was that appellant was a principal, under the Federal
statute of Principals, Sec. 550, Title 18 U.S.C.A. one who "aids,
abets, counsels, commands, induces, or procures [the] commission"
of an offense. As particularly applied, the theory of the
prosecution was that appellant was the owner and operator of an
illicit still; that assisting him as lookout man and guard was
one Pete Martinez; that some time prior to the killing, and in
connection with his duties as lookout and guard appellant had
given Martinez the pistol with which Thomason was killed,
instructing him generally to keep a lookout, to avoid notice and
detection if possible, but if discovered, to shoot it out with
any officers attempting their arrest, or to take the still; that
at some time before the killing Martinez had told appellant that
he was a good shot, and that if the officers tried to capture the
still he would shoot it out with them, and the best man would
win; that Young had told him he hoped that he would prove a man
of his word; that on the night of February 14, 1937, Thomason and
other officers captured Young and one Hazel Hamilton, while
actually operating the still, and, one of the officers holding
those two prisoners, Thomason left the site to make a further
search; that he suddenly came upon Pete Martinez and a fifteen
year old boy, Hucel Hamilton, and upon his command, "stick them
up" Martinez acting under the instructions from and promises to
appellant, commenced firing; that a pistol battle then ensued, in
which both Martinez and Thomason were killed. There was a verdict
against Young of murder in the first degree as charged, without
capital punishment, and a sentence and judgment of imprisonment
in the United States penitentiary for the remainder of his
natural life.

By this appeal he maintains that greatly prejudicial error was
committed on the trial of his case, in respect of, the admission
as evidence against him of matters not receivable as such, and
of, the denial of his motion for a directed verdict. The point
made on the denial of the motion to direct is that the undisputed
evidence showed that Young was at the still unarmed, and in the
custody of the officers when the gun battle which cost Thomason
his life occurred, and there was no evidence that he at any time,
by word or sign, ever advised, counseled, aided, induced or
procured the shooting of Thomason; that it occurred as the result
of an unexpected meeting and affray between Thomason and
Martinez, and that the verdict, therefore, that appellant killed
Thomason with malice aforethought, is wholly without evidence to
support it.

There are several assignments as to erroneous admissions into
evidence. Appellant's main reliance, however, is upon the
proposition that the Government was permitted, without having
been surprised by the testimony of a hostile witness, to
Page 202
get before the jury in form as impeaching testimony, but in fact
as independent evidence, a mass of matter not admissible as
evidence, and in the state of the record, fatally damaging to

We think little need be said upon the first point, the denial
of the motion for instructed verdict, and the want of evidence to
support it. The Government did indeed, by introducing a
completely exculpatory statement of defendant, in which he denied
having given Martinez either a gun, or any instructions whatever
as to guarding the still or shooting it out with officers,
thereby raise a presumption in his favor that the exculpatory
statements were true, which required their falsity to be shown
beyond a reasonable doubt. 18 Tex.Jur. Sec. 106, p. 194; Spicer
v. State, 113 Tex.Crim. R., 21 S.W.2d 737; Villareal v. State,
101 Tex.Crim. R., 275 S.W. 835; Cokeley v. State, 87 Tex.Crim. 256,
220 S.W. 1099; Nichols v. State, 110 Tex.Crim. R.,
10 S.W.2d 109; Cook v. State, 71 Tex.Crim. R., 160 S.W. 465.
However, the other evidence, if admissible and believed,
warranted a jury finding that Young armed Martinez and put him on
post, with instructions to kill any officer who should attempt to
seize the still or arrest those connected with it, and with the
purpose and belief that he would do so. If this was so, his hand
in law fired the shot which killed the officer, and he is as
guilty of his willful killing as if he had been standing by while
the shooting was going on, urging and directing it, or himself
had held the gun. Under Federal statutes he who, in the
commission of an illegal act with others, such as maintaining an
illicit still, conducting a burglary or holdup, arms and
instructs his confederates to kill if obstructed in the attempt,
with the purpose and intent that they do so, is in law a
principal in any willful killing which results from carrying out
those instructions.

Upon the questions the other assignments raise the admission
into evidence of statements made by and letters written by and to
the witness Hamilton, in impeachment of his testimony, the matter
stands, we think, quite differently. Without these admissions,
the Government's case was almost, if not quite, fatally lacking
in the clear and convincing proof of that high order of
credibility which the nature of the charge and the state of
defendant's proof, demanded. The admission into evidence of these
statements and letters was fatally damaging to defendant, and if
their admission was erroneous, a reversal is required. A brief
summary of the evidence on the crucial point, the claimed
arrangement between Martinez and the defendant for guarding the
still, and shooting it out with officers will show, inescapably,
we think at once the damaging character and the complete
inadmissibility of this proof. Hamilton's statements aside, there
is no proof in the record directly or circumstantially in any way
tending to support the Government's claim, except the testimony
of three persons, who were inmates of the jail in which defendant
was confined, who testified to having had or heard conversations
in which he made admissions as to his connection and arrangements
with Martinez. Cf. Cokeley v. State, 87 Tex.Crim. R.,
220 S.W. 1099. One of these persons was Richard Palmer, an habitual
offender, then serving a life sentence for murder, who testified
in substance that in one conversation the defendant had told him;
that he had a fellow named Pete Martinez working for him; that
when the officers came and arrested him, and one stayed with him,
and the other went off, he knew at the time the officer left that
his life was in danger if he went in that direction; that the
Mexican was waiting down there with a gun he had furnished him,
or knew something about, and that the Mexican was a good shot; he
said he could distinguish the shots, one of them was his gun, and
he said he knew at the time the shooting occurred that the man's
life was in danger, because the Mexican shot first. He further
testified that in a subsequent conversation the defendant told
him the Mexican was working for him at the still, and was
supposed to carry water and watch the trail that led to the
still. "He told me for what purpose the Mexican was supposed to
watch it. He said if anybody came up to the still or near the
Mexican who was watching, he was supposed to lookout, and if
anybody, did not necessarily mean officers, came onto his trail
he was supposed to shoot once, as a warning shot, to give them an
opportunity to go away, and then if the party did not leave, to
shoot, and shoot to kill." At another time the defendant told him
that if it had been some other officer, except the one that it
was, he would have given him warning, and told him not to go
there where the Mexican was. "He said he did not mind seeing this
particular officer walking that way into a death trap."
Page 203

Another one was Kohutek, confined in the jail for a
misdemeanor. He testified that as trusty he had the privilege of
going all around the jail, and he got acquainted with Richard
Palmer while in jail; that while in the runaround outside the
cells he heard conversations between the defendant and Palmer,
with regard to the killing of a Federal Officer and the operation
of a still; that the defendant stated that he heard the shooting
and the rapid firing, and he said he knew it must have been the
Mexican shooting because he knew that gun would never miss; that
he heard that gun first. "He said he knew that gun would never
miss and that he put the Mexican down there for a guard, for a
lookout man. He said that when he put the Mexican down there he
was safe, that nobody would ever get up to the still"; that he
heard a conversation about killing a Federal officer and that
appellant made the remark "the Goddamn son of a bitch was dead,
and would never bother nobody else"; that he also said he was
expecting a raid on the still by Federal officers. On cross
examination Kohutek said the conversation between Palmer and
Young all happened at one time, the night he was standing there.

The third was B.L. Vann, in jail 45 days for drunkenness. He
testified that while in jail he heard the defendant make
statements with reference to operating a still and the killing of
a Federal officer. "The defendant said he had a Mexican working
for him; the Mexican was operating the still or fixing to operate
it; that he heard two shots and recognized his gun when it was
fired; that it was his but he had sold it to the Mexican and that
the Mexican was on guard working for him."

Other testimony of the Government was indeed sufficient to
connect Martinez with defendant and the still, and defendant in
some way with the gun Martinez had, but this was all that it did.
But aside from Hamilton nobody testified to knowing of or
overhearing any arrangement between Martinez and defendant for
guarding the still or shooting it out with officers.

In addition to this lack of positive testimony in support of
the Government's theory of guilt, and the character of the
witnesses who had testified to defendant's admissions, the
Government further weakened its case by offering as a confession
of defendant's, his exculpatory statements; that though Martinez
came around the still often, and drank some whiskey, and had been
there about thirty minutes before the officers came up; that
though the gun Martinez shot with had been defendant's he had
some time before traded it to Martinez; and that Martinez was not
working for him, and that he had never given any instructions to
Martinez as to guarding the still or shooting it out with

The Government's case standing thus, it was highly important to
it to get before the jury, in some way, the favorable statements
it had secured from Hucel Hamilton while he was in jail under
charges growing out of the still and the shooting. It therefore,
though it knew from letters in its possession that Hamilton would
repudiate those statements when before the Judge, put him on the
stand with the intention, apparently, of getting his statements
into evidence by impeaching him. Placed upon the stand, he
testified that he was sixteen years old; that he lived with his
mother and sisters in defendant's house; that he had known Pete
Martinez; that he had seen him several times; that he had gone up
to the still the day of the shooting; that he had not seen
Martinez that afternoon until he saw him at the spring, about
5:30 in the afternoon, when he, Hamilton, came to the spring to
get water; that a Federal officer came and said "stick them up"
and they started to shoot at one another; that he said nothing to
Pete and Pete just turned around and went to shooting; that he
could not tell which shot first; that after the shooting he
picked up the gun and ran home, and gave the gun to his sister

Thereupon the District Attorney asked the witness:

"Now, were you questioned that night after the shooting early
the following morning?

"A. Yes sir.

"Q. And didn't you give this statement which Mr. Holt took on
the typewriter?

"A. Yes sir.

"Q. I will ask you if you made this statement — `On Sunday,
February 14, 1937, about 8 o'clock in the morning, my sister
Hazel, and my brother Howard and myself went across the river to
milk some cows and then went back to the house and then Pete
Martinez, Ike Young and myself went back across the river to go
to the still —'"
Page 204

The appellant objected and stated that he objected to any
statement he might have made. Whereupon the following occurred:

"The District Attorney: I will offer the whole thing, and my
answer to that is there are some very material things this boy
has testified to here, things diametrically different from the
statement he has sworn to.

"The Court: If you are surprised by his evidence you are
entitled to impeach him on that part of the evidence.

"The District Attorney: That is what I propose to do — I have
already asked him the questions and he has given different
answers to what is contained in his statement.

"The Court: All right, I will let you offer the statement for
impeachment purposes only —"

to which an exception was taken. Thereafter, the District
Attorney, by questions and by reading from the statements, got
before the jury statements not only that Martinez, Hamilton and
Young were working at the still, and that he thought Pete fired
the first shot, but this, which was greatly damaging to
defendant, if believed:

"Before we left the house to go to work on the still in the
morning and on the day the shooting took place, Ike gave Pete a
gun and scabbard, and Pete put the gun and scabbard on his belt
on the righthand side, and when we got to the still Ike told Pete
to protect himself at the still and shoot if you have to, and
Pete said he would. Pete told Ike that he would not let anybody
come up to the still after Ike told him not to let anybody come
up to the still. After Ike told him that, Pete said if anybody
come up there and they didn't look right, the best man would win,
and Ike said `I hope you are a man of your word.'"

In addition to this statement, another statement was offered,
purporting to have been made by Hamilton the next morning after
the shooting, in which the witness stated —

"There at the house yesterday morning Ike said, Well Pete you
can wear the gun this time, and gave Pete his 38 Colts:

"Q. Did you ever see this gun during the day?

"A. I saw it on Pete who wore it the rest of the day.

"Q. During this time that you all were sitting around the still
talking, did you see this gun Pete was wearing?

"A. Yes sir; Pete had it on and I could see him.

"Q. Did you hear any conversation between Ike Young and Pete
during this time?

"A. Ike told Pete he could shoot it out with them, or run if he
wanted to.

"Q. When Ike told Pete that he could shoot it out with them, if
he wanted to,' what did Pete say?

"A. Pete said, well, the first man that comes up here and draws
a gun, the best man will win, and Ike said, `I hope you are a man
of your word.'"

The witness was also asked whether before the grand jury he had
not testified substantially to what he had said in his statements
as to what Ike told Pete, and Pete told Ike at the still that

All of this was offered over the objections of defendant, and
in addition, while Hamilton was on the stand, the Government
offered two notes, one written by Hamilton's sister to him, and
one by him in reply, while they were both in jail. When these
were offered they were objected to by defendant and the following
colloquy occurred:

"The Court: You offer these letters in evidence for the purpose
of impeachment of this witness?

"The District Attorney: Yes sir to shed what light they may as
to which of four different statements made by the witness are

"The Court: I overrule the objection and will let the evidence
in for impeachment only."

Whereupon the District Attorney stated — "I will state to the
Court that these letters are hard to read, and I have carefully
gone over them before I came into court several days ago, and I
have written it out in my own handwriting."

"From Beulah to Bud:

"Be shure you tare this up don't let noBody see you read this.
Listen Bud in know all about what you done on your trip. Listen
and if you don't do what I told you to I am going to tell them
what you done when you brought that gun across the river. But if
you don't change what you said about Ike giving that gun to Pete
they will hang him and me and you Both.
Page 205
Bud how can you do him like that as good to you as he has Ben.
Bud I want you to rite and tell me what you are going to do so I
will no Bud ant you going to change what you have said and soon

"From Bud to Beulah:

"I am going to tell the judge I lyed about the gun and what I
told them Ike told Pete But they know how the shooting happened
because there was another law up on the hill from the spring and
saw it and they aint no use on trying to tell them Pete run first
they even found where the laws Bullets cut the grass but am going
to tell I lyed about Ike telling Pete to kill anybody that come
up there. I am going to tell that to the judge The end from Bud."

On cross examination the witness testified that he did not read
the statements before he signed them; that he was in jail when he
made them and made them because he thought he would get out; that
some parts of the statement were true and some was a lie, and
what he had testified that day was the truth; that Pete did not
have anything to do with the still and that he never knew him to
be so connected.

The rule in its original and strict form against impeaching
one's own witness is discredited everywhere, and it is generally
recognized that impeachment may be resorted to where a witness
has surprised the party offering him, by his testimony. The
overwhelming weight of authority however, supports the rule that
though trial courts should, in the exercise of a sound discretion
to prevent injury from the surprise testimony of a hostile or
corrupt witness, permit cross examination and impeachment by
contradictory statements, it is never permitted to make of the
rule an artifice by which inadmissible matter may be gotten to a
jury through the device of offering a witness, whose testimony is
known to be adverse, in order, under the name of impeachment, to
get before the jury for its weighing, favorable ex parte
statements the witness has made. To the relaxation of the rule
against impeaching one's own witness by introducing his ex parte
statement in contradiction of his testimony, it is fundamental,
we think, that the party offering the witness be really surprised
at his testimony. Further, it is equally fundamental that the
impeaching testimony be admitted not for the purpose of supplying
what the witness was expected to, but did not, say, as a basis
for a verdict, but only to eliminate from the jury's minds any
positive adverse effect which might have been created by the
testimony which has surprised the offerer.

Because this is so, it is ordinarily the best practice, if it
can be effectively done, when a party shows that he has been
surprised by the adverse testimony of a witness he has offered,
to permit him to withdraw the witness and his testimony from the
jury by having the whole evidence stricken from the record, as
was done in Kuhn v. U.S., 9 Cir., 24 F.2d 910. By this course, if
the claim of surprise is made, as indeed it should be, only for
the legitimate purpose of removing the prejudice of the
surprising testimony, and not for the purpose of getting the
contradictory statements before the jury for their effect upon
it, the purpose of protecting the party, who offered him, from
injury at the hands of the witness is accomplished without
complicating the issues or confusing the jury.

But this is not the only course which may be pursued. "On a
showing to the court that it ought not to be bound by what [the
witnesses it offered] had testified, because it had been
entrapped by them," New York Life Ins. Co. v. Bacalis, 5 Cir.,
94 F.2d 200, 202, the court may, in the exercise of its discretion,
limiting the impeaching matter to the point of the surprise,
permit the evidence to remain in the record for such weight as it
may have in the light of its impeachment, and of a careful
instruction by the court, that the impeaching evidence is not at
all admitted as evidence in the offerer's favor, but for what
effect it may have in overcoming the testimony which has
surprised the offerer. In short, the impeaching and contradictory
statements are "admitted only to destroy the credit of the
witnesses, to annul and not to substitute their testimony." Id.

It is, in our opinion, never admissible under any sound
interpretation of the rule, certainly not in Texas, nor in the
Fifth Circuit, to offer a witness whose testimony the offerer
knows in advance will be adverse, in order to get before the
jury, in the form of impeachment, contradictory statements of his
which are useful to the prosecutor. Royal Insurance Co. v.
Eastham, 5 Cir. 71 F.2d 385, 388; Odneal v. State, 117 Tex.Crim. 412,
36 S.W.2d 1020; Barham v. State, 130 Tex.Crim. R.,
93 S.W.2d 741; c/f Blochowitz v. Blochowitz,
Page 206
122 Neb. 385, 240 N.W. 586, 82 A.L.R. 955; Kuhn v. U.S., supra.

Neither, even where there is a real surprise, is it proper to
permit the impeaching testimony to go beyond the only purpose for
which it is admissible, the removal of the damage the surprise
has caused. In no event may the fact that a witness has made
contradictory statements be used as it in effect was here, as a
basis for completely discarding the rules of evidence against
hearsay and ex parte statements, and, as impeachment, opening the
flood gates of prejudicial and damaging hearsay. Dewey Ward v.
United States, 5 Cir., 96 F.2d 189.

From the beginning the courts of Texas have so held. White v. State,
10 Tex. App. 381[10 Tex.Crim. 381]; Odneal v. State, supra; Gulf, C. &
S.F.R. Co. v. Harrell, Tex.Civ.App., 270 S.W. 187; Morgan v.
Stringer, 120 Tex. 220, 36 S.W.2d 468; Latham v. Jordan,
Tex.Com.App., 17 S.W.2d 805; Barham v. State, supra. This has
been the uniform rule in the Fifth Circuit. Sneed v. United
States, 298 F. 911; Georgia Casualty Co. v. Waldman, 53 F.2d 24;
Royal Ins. Co. v. Eastham, supra; New York Life Ins. Co. v.
Bacalis, supra; Dewey Ward v. U.S., supra. Most United States
Circuit Courts of Appeals, most state courts, are in agreement. A
note to Sec. 905, concluding an interesting discussion, Sec.
896-905 incl., Vol. 2, 2nd Edition Wigmore on Evidence, and a
note to the same section, in the 1934 Supplement second edition,
sets out with, it seems to the writer, a little bias in favor of
the author's general condemnation of the rule, pretty fairly the
state of the authorities. While Texas Law of Evidence,[fn1] and a
note in XV Texas Law Review No. 1, pp. 132, 133, show that the
Texas courts strictly apply the rule to prevent its being used as
a device for getting favorable ex parte statements before the

All of these cases make it clear that to admit such
contradictions, there must be not only surprise, but damage, and
the damage claimed must not have been self inflicted by
continuing to put in damaging testimony after the witness's
hostility or change of front has been discovered in order to open
the gate to let his favorable ex parte statements in. Royal Ins.
Co. v. Eastham, supra.

A recent and well considered case from the Second Circuit, is
United States v. Block, 88 F.2d 618. The only Federal case which
has been called to our attention, in which surprise has been held
not a factor, is a civil case, London Guarantee & Accident Co. v.
Woelfle, 8 Cir., 83 F.2d 325, 335. Being a civil case, the court
may have been though it did not say so, following a prevailing
state rule.[fn2]

Be that as it may, this decision is not in accord with the
generally prevailing view, as reference to any text book will
show. It is certainly not in accord with the rule prevailing in
Texas, and in this Circuit.

The charge on which appellant was tried was an unusual one,
first degree murder, by a killing induced and procured by general
instructions in advance. Legally sufficient though it is, it is
of a kind which ought to be substantiated by clear and convincing
proof of a high order of credibility. Such proof was woefully
lacking in this case. The testimony of three convicted persons,
one a convicted murderer, to admissions made by appellant while
confined with them in jail, and without the warning and written
form which the Texas Code of Criminal Procedure requires, was all
the evidence the Government had to sustain its case, until, by
putting Hucel Hamilton on, it opened the sluice gates of
inadmissible and damaging hearsay, to let in the admissions of
Hamilton obtained from him while a prisoner in the jail, and
while under the greatest compulsion to exculpate himself by
inculpating the defendant, in support of the theory upon which
the Government had pitched its case. Having offered Hamilton with
the full knowledge, from the notes exchanged between him and his
sister, which the District Attorney had had in his possession for
days, that before the Judge he would repudiate these statements,
surprise was of course, not claimed. But on the theory that he
had a right to impeach him because he had made prior
contradictory statements, the District Attorney put into the
evidence the two prior statements he had made, and his testimony
before the grand jury, under offers and instructions
Page 207
so worded as that the jury was certain to believe that the whole
of Hamilton's testimony, including the statements he was
interrogated about, was before them to determine from them all,
which of his statements was true.

But this is not all. The two notes, written by Beulah and Hucel
Hamilton respectively were also admitted, in the words of the
Government, "to shed what light they may on which of the four
statements, made by the witness are true", and while the court
stated that they were offered for impeachment only, this was all
that was said, and the jury was allowed to take the whole matter
without explanation or instructions as to what was meant by "for
impeachment purposes only." Particularly were they left
uninformed that the evidence was admitted only to remove any
prejudice Hamilton's testimony might have caused the State, and
not in order that if they believed his ex parte statements, they
might receive them as evidence to supply the place of the
favorable testimony he would have given if he had testified in
accordance with their tenor and purport. Kuhn v. U.S., supra.

While the case must be reversed for these errors, and it is not
likely that any of the other rulings on evidence which are
complained of will occur on another trial, we think it proper to
say that we do not think any of the objections to them are well
taken. For the errors alone, therefore, of admitting the
statements and letters of and to Hamilton, the judgment is
reversed and the cause is remanded for further and not
inconsistent proceedings.

Reversed and remanded.

[fn1] McCormick and Ray.

[fn2] See discussion of that question in Royal Ins. Co. v.
Eastham, supra, and XIII Texas Law Review, Vol. 1, pp. 19-28, in
which the rulemaking power of the Supreme Court is discussed, and
Note, XV Texas Law Review, p. 265.

HOLMES, Circuit Judge (dissenting).

The hypothesis that the prosecuting attorney was not surprised
by Hucel Hamilton's testimony is not warranted by anything in the
record, and the presumption is to the contrary. In spite of the
letters which passed between Hucel and Beulah Hamilton, it is
probable and should be presumed that the attorney talked to
Hamilton before introducing him as a witness, and was told that
the facts set forth in the statement were true and would be
testified to by him on the witness stand. 28 U.S.C.A. § 391;
Haywood v. U.S., 7 Cir., 268 F. 795, certiorari denied
256 U.S. 689, 41 S.Ct. 449, 65 L.Ed. 1172; St. John v. U.S., 7 Cir.,
268 F. 808; Kuhn v. U.S., 9 Cir., 24 F.2d 910, certiorari denied
278 U.S. 605, 49 S.Ct. 11, 73 L.Ed. 533.

The court below ruled that counsel was surprised, and no
contention to the contrary was even suggested on the trial by
appellant's attorneys. Hamilton was an unwilling witness, and the
United States Attorney had the right to cross-examine him and to
ask him leading questions. The trial court has a discretion with
respect to the scope of the examination of witnesses, which, in
the absence of abuse, an appellate court should not undertake to
control. Levy v. U.S., 8 Cir., 35 F.2d 483, citing Hickory v.
U.S., 151 U.S. 303, 14 S.Ct. 334, 38 L.Ed. 170, and St. Clair v.
U.S., 154 U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936.

It is indisputably established by the verdict of the jury that
an officer of the Alcohol Tax Unit was murdered by Pete Martinez,
an employee at an illicit distillery owned and operated by
appellant. The fatal bullet came from a pistol which had been put
in Pete's hands by appellant for the purpose of enabling him
effectively to guard the still against interference by
governmental officers. Moreover, this employer gave his employee
specific instructions to "shoot it out with them." The appellant
said that he saw the officer walking into a death trap; that if
it had been some other officer, he might have warned him; that he
put the Mexican down there for a lookout man; that he knew nobody
would ever get up to the still; that he heard the gun fire and
knew it was the Mexican shooting, knew it was his gun, and knew
that it never missed; that he was glad the Goddamned
son-of-a-bitch was dead and would not bother anybody else; and
that appellant had been expecting a raid on the still by federal

After a two days trial, the jury returned a verdict of murder
in the first degree without capital punishment, and appellant was
sentenced to imprisonment for life. This verdict should not be
set aside for slight and inconsequential errors
(28 U.S.C.A. § 391); but I am not of the opinion that the court erred. The
effort to impeach the witness took a wide range — wider than
should ordinarily be permitted — but if prejudice to appellant
resulted therefrom, it was brought about by the insistence of his
attorney that the whole statement and not just parts of it be
admitted. It was in accordance with the
Page 208
principle insisted upon by appellant's counsel that the United
States Attorney offered the entire documents in evidence.

I respectfully dissent from the judgment of reversal.
Page 249

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August 21, 2010



January 14, 2008

No man goes unnoticed before G-d.Thank you for your service.

February 14, 2006

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