Summary
In Upham v. United States, 5 Cir., 328 F.2d 661, after the prosecuting witness had testified differently from what she had previously indicated in a written statement, an F.B.I. agent who took the statement identified it, and it was offered and received as evidence.
Summary of this case from United States v. BeasleyOpinion
No. 20359.
February 27, 1964.
John S. Cox, Jacksonville, Fla., for appellant.
Samuel S. Jacobson, Asst. U.S. Atty., Jacksonville, Fla., William A. Meadows, Jr., U.S. Atty., S.D. Fla., for appellee.
Before TUTTLE, Chief Judge, and JONES and BELL, Circuit Judges.
During the trial of this Mann Act case the victim testified differently than she had previously indicated she would and contrary to a written statement signed by her. After an initial effort to get her to recant her testimony unfavorable to the prosecution, the United States Attorney let her depart from the witness stand. Thereafter, when the FBI agent who took her initial statement was on the stand, the Government had the victim's statement identified and tendered it in evidence. It was received without limitations on the purpose for which it could be considered and without objection. It was an extremely damaging statement. While appellant's counsel did not request an instruction that the statement be considered only as impeaching the witness, the need for such a charge to the jury was so obvious and the failure to give it so prejudicial to the appellant that this Court must notice the failure as "[p]lain errors * * * affecting substantial rights" of the accused under Rule 52(b) F.R.Crim.Proc.
The judgment of conviction must be set aside and the case remanded for further proceedings in the trial court.