Court: Circuit Court of Appeals, Fifth Circuit

Date published: Jan 4, 1939


Thomas Slack and Marshall Coile, jointly with appellant, were indicted in ten counts for violations of the Internal Revenue laws. The two Coiles were tried together, and both were convicted. Marshall was granted a new trial, and Israel is the sole appellant.

When the case was called for trial, Slack entered a plea of guilty to counts one, three, and four, all of the defendants having previously entered a plea of not guilty to the entire indictment. A motion for a severance, which had been filed by Israel and Marshall Coile requesting that they be tried separately from Slack, was not pressed, or at least not ruled on, and the court ordered the trial to proceed. At the close of the testimony, a verdict in favor of the defendants on some of the counts was directed by the court, and Israel Coile was convicted by the jury on counts two, five, seven, eight, and nine, which dealt with the nonpayment of taxes on thirty gallons of whiskey.


Court Judgment

Since the witness was named as a defendant in the indictment upon which the trial was proceeding, and had only plead guilty to three of the counts therein, the court was unable to think of any relevant question to which an answer might be required, and counsel was unable to suggest any. Although the witness had pleaded guilty to three, there were seven other counts in the indictment pending against him, and counsel expected the witness to admit his guilt of the offenses named therein. We recognize that the right to refuse to answer is personal to the witness, who must claim it for himself as to the particular questions propounded. Still, when the witness is a defendant in seven counts of an indictment, on each of which an issue is joined, it would seem a waste of time to continue to permit further questions when counsel tells the court that his purpose is to draw from the witness a confession of guilt. The attorney for the two Coiles thought that Slack was going to take responsibility for the crime and exonerate the Coiles, and he was surprised when Slack refused to testify, but the witness was well within his constitutional rights, and we think the court committed no error in refusing to take up time with needless questions. Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650; Wolfson v. United States, 5 Cir., 101 F. 430; United States v. Wetmore, D.C., 218 F. 227.

The judgment of the district court is affirmed.

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