Pina

(concurring and dissenting).

I concur in the affirmance on the ground stated in Judge Healy’s opinion.

I dissent from the statement of'Judge Garrecht’s opinion that a probationer cannot be a witness prejudiced- in favor of the government because he has obtained a release from incarceration. As stated by the Supreme Court in Anderson v. Corall, 263 U.S. 193, 196 , 44 S.Ct. 43, 44 , 68 L.Ed. 247 . “The parole authorized by the statute does not suspend service or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term, less allowance, if any, for good conduct. While this is an amelioration of punishment, it is in legal effect imprisonment. * * * ”

The jury is entitled to know of a witness offered by the plaintiff government that he is in the custody of that plaintiff, particularly where, as here, he may at any time be returned by that custodian from freedom of incarceration to his prison cell for a breach of any of the conditions placed upon him by the parole board.

This court, in Meeks v. United States, 9 Cir., 163 F.2d 598, 599 , stated that “It is difficult to imagine…

The appellant was indicted on the charge of having uttered and published as true, and having caused to be uttered and published as true, the endorsement of the payee of a United States Treasurer’s check for $100, knowing that such writing was “false, forged and counterfeited”, and “with intent to defraud the United States.”

The evidence showed that the check, payable to Felix T. Soto, was cashed at a payroll-cashing agency, and that the appellant received part of the proceeds. Soto Testified that he did not endorse the check, which was for mustering out pay.

One of the appellee’s witnesses was the confessed accomplice of the appellant. The accomplice testified that the appellant suggested that the accomplice cash the check; that the appellant drove the accomplice to a place where payroll checks were cashed and waited while the accomplice went in and cashed the check; and that the appellant then received part of the proceeds.

The appellant’s only witness was an eighteen-year-old girl who testified that she and the appellant had lived together as man and wife for about three years. She stated that, at the request of the accomplice, she “signed” the check.

After the argument to…

I concur in Judge Garrecht’s disposition of the appeal but wish to add a word on the only point presented to us that seems to me at all worthy of notice, namely, the denial of appellant’s request to reopen the case for the purpose of showing that the accomplice, Rodriguez, had been put on probation.

On cross examination by appellant’s counsel Rodriguez testified that he had pleaded guilty to the charge of uttering the forged endorsement. The subject was not further pursued. In denying the request to reopen the court observed that since Rodriguez had been granted probation his case was closed and no inducement existed at the time of trial for his testifying one way rather than another, hence the fact of his probation was immaterial.

While it is true that at the time of testifying Rodriguez was under no promise or hope of reward, I think that if the case had been a close one on its facts it would have been advisable to grant the motion to reopen so that the fact of probation might be before the jury for what it was worth. Some cynic has defined gratitude as a lively appreciation of favors to come. However that may be, it is arguable that a sense of gratitude on the part of -one…