Morris v. United States, 10967.

• Decision Date: 19 August 1946
• Docket Number: No. 10967.,10967.
• Parties: MORRIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

169 ALR 305, 156 F.2d 525 (1946)

MORRIS v. UNITED STATES.

No. 10967.

Circuit Court of Appeals, Ninth Circuit.

June 27, 1946.

Rehearing Denied August 19, 1946.

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Morris Lavine and Mario Perelli-Minetti, both of Los Angeles, Cal., for appellant.

Charles H. Carr, U. S. Atty., James M. Carter and Ernest A. Tolin, Assts., and William Strong, Sp. Asst., to the U. S. Atty., all of Los Angeles, Cal., for appellee.

Before GARRECHT, DENMAN and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

William Morris was informed against in four counts and went to trial before a jury under his plea of not guilty as to each count. At the conclusion of the government's case, defendant made a motion for directed verdicts as to each count, but the court, with the tacit acquiescence of defendant and the government, treated the motion as one to dismiss, and granted it as to Counts 3 and 4, and denied it as to Counts 1 and 2.¹

Counts 1 and 2 each charge the violation of the Emergency Price Control Act of 1942 as amended, 50 U.S.C.A.Appendix, § 901 et seq., and Regulations thereunder, in that false entries were made in statements as to sales made, that is, that the entries as to each sale show the price paid for oranges as $4.50 per box, whereas each sale was made for $5.50 per box.

Before trial appellant demurred to the sufficiency of the information and moved to quash and set it aside, but the court refused relief as to both pleadings. After the first witness had been sworn appellant again objected to the sufficiency of the information. The court overruled the objection after granting the government's motion to amend, so that the information should contain the allegation that Maximum Price Regulation 292, as amended, had been approved by the Secretary of Agriculture. Morris' motion for a new trial was denied and sentence was pronounced. He appeals from the judgment.

There is evidence to the effect that a man named Arrigo made two purchases, each of a carload of oranges from Morris Brothers Fruit Company, a partnership, after directly negotiating with appellant as to price, and received two "statements" prepared by a Morris Company office employee, each stating the price received as less than that actually received as above stated. Arrigo testified that he paid the total of $6,402 in six separate checks. Appellant admits the sale of the oranges but contends there was but one transaction or sale and testified that the price asked and received was $4.50 per box and no more. Appellant also testified that the two statements were prepared by a partnership employee, who computed the price, and that he gave no direction as to entries upon the statements.

All emphasis indicated in this opinion is ours.

Several questions are presented on appeal, which we do not reach. It is our opinion that the trial court committed fatal error in failing to instruct the jury on the statutes and regulations defining and governing the offenses charged against the appellant. No assignment of error was made at the trial covering this claimed error, but we consider it because, as is well stated in Suhay v. United States, 10 Cir., 1938, 95 F.2d 890, 893, "* * * Where life or liberty is involved, an appellate court may notice a serious error which is plainly prejudicial even though it was not called to the attention of the trial court in any form." In a criminal case, it is always a duty of the court to instruct on all essential questions of law, whether requested or not. See Screws v. United States, 1945, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495; Corson v. United States, 9 Cir., 147 F.2d 437; Kreiner v. United States, 1926, 2 Cir., 11 F.2d 722, certiorari denied 271 U.S. 688, 46 S.Ct. 639, 70 L.Ed. 1152.

The court did not define the offense of which the appellant was charged and was being tried, and the jury was given no opportunity of applying the facts to the law. Instead, the judge reserved to himself the duty of applying the law to the facts. The court told the jury: "If you believe beyond a reasonable doubt that on or about October 27, 1943, the defendant sold five hundred and eighty-two boxes of oranges to Aldrich & Company at a price of $5.50 per box, or for a total sum of $3,619.00, and that said transaction was on behalf of Morris Brothers Fruit Company, and that defendant wilfully and deliberately, and not as a result of innocent mistake entered upon said Morris Brothers Fruit Company's copy of a statement showing such sale, an entry that the sale had been made at a price of $4.50 per box or a total sale price of $2,619.00, and that the statement was made in a record of the kind customarily kept by Morris Brothers Fruit Company during the time prior to January 11, 1943 (effective date of Regulation) then you will find defendant guilty * * *. The court instructs you that the regulation under which this case arose, Maximum Price Regulation 292 was promulgated by the Price Administrator on December 31, 1942, to become effective January 11, 1943, and was duly approved by the Secretary of Agriculture before its promulgation, and that all this was done pursuant to the authority granted by the Congress of the United States in the Emergency Price Control Act of 1942 as amended." The jury was never given an explanation or definition or enacted text of the offense charged, but instead were told that if they found certain enumerated facts, the verdict must be one of guilty; otherwise the verdict must be one of not guilty. A jury's duty cannot be so limited by a judge. There is no better grounded instruction than the one used in every criminal jury trial, including this one, that the court gives the law to the jury and the jury applies it to the facts. Here, by the instruction, quoted, the judge reserved the law to himself and told the jury that the law applies in a certain manner defined by him to sets of facts which the jury may or may not find.

The origin of the jury as a means of deciding issues is a subject of much diversity of opinion. Whether or not it was brought to England by Northern tribes, as many writers believe, or by the Normans, as Holdsworth believes (1 Hist. of Eng. Law, p. 145), or whether it is a true native of Britain, is interesting but of no great practical importance. We do know it is spoken of in Magna Charta as a bulwark of English liberty.

An American speaks of the jury system as "Springing up under the feudal despotism of the Plantagenets, it has survived alike their rule, that of the House of Tudor, and of the House of Stuart, and now flourishes with all its original vigor under the mildest and wisest form of monarchy of which history makes mention; while during the same period, transplanted to a different hemisphere, it has struck deep its roots into the new soil, and is, perhaps, the most cherished institution of the greatest exemplar of free and intelligent government that the world has ever seen." — Sedgwick, The Construction of Statutory and Const. Law (1874) (2d Ed. by Pomeroy), p. 482.

In early times the English jury consisted of a body of neighbors summoned by a public officer to give an answer to a question upon oath. Originally the jury comprised witnesses largely under the control of the judge. In the beginning there was no sharp cleavage between law and fact, but in time the applicable law was given and explained by the judge and the jury combined the law and fact to form a verdict. See Holdsworth, History of English Law, pp. 156 et seq.; Thayer, Evidence, p. 185; Farley, Instructions to Juries — Their Role in the Judicial Process, 42 Yale Law Journal 194. Holdsworth in his History of English Law said (Vol. I, p. 168): "Judges must explain the law to the jury. They must separate the rule of law from the question of fact. This produces both precision in the statement of the rule, and a clear outside judgment on the facts." Thus, at an early stage in legal history we find the judge duty bound in his position to give instruction on the law to the jury. He was privileged to suggest or give examples as to how the law might be applied, but this after or in conjunction with the offense charged had been defined to the jury. It remained the duty and the privilege of the jury to apply the law. In fact it has been stated as far back as the Year Books that the judge delivered charges on the law to the jury. Scott, Trial by Jury and the Reform of Civil Procedure, 31 H.L.R. 669. Both in England and the American Colonies the jury system of trials is regarded as a bulwark of liberty, and the American tendency of the practice under the jury system, influenced by American popular sentiment, has generally been toward the limitation of the judges' powers and enlargement of those of the jury. Ibid.

The classical practice is that the judge delivers the applicable law of the case, defining and explaining the offense charged against the defendant, and the jury thus being informed as to the exact law, which they must determine has been or has not been violated by the defendant, places its determination of the facts alongside the law and reports in the open court in a single verdict of "guilty" or "not guilty." Sparf v. United States, 1895, 156 U.S. 51, 715, 15 S.Ct. 273, 39 L.Ed. 343; 1 Randall, Instructions to Juries, §§ 1, 97, 118; Hughes, Criminal Law and Procedure, pp. 693, 696. Instructions upon the law have been repeatedly defined as statements or announcements of the rules of law to be applied by the jury to the facts found by them. 1 Blashfield, Instructions §§ 1, 4; 2 Bishop, New Crim.Pro., §§ 978, 982c.

The jury system, as one authority has said, is "broadly buttressed upon political, sociological and historical reasons" and it may not be overthrown upon mere considerations of efficiency, personal whims of the court, or other conceived convenience or possible advantage. 1 Randall, Instructions to Juries, § 3. The jury is not an outmoded instrument used by an early society to escape the...