Swenzel v. United States
| Citation | 22 F.2d 280 |
| Decision Date | 01 November 1927 |
| Docket Number | No. 165.,165. |
| Parties | SWENZEL et al. v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Louis Halle, of New York City (Nathan April, of New York City, of counsel), for plaintiffs in error.
Charles H. Tuttle, U. S. Atty., of New York City (J. Edward Lumbard, Jr., Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before SWAN and AUGUSTUS N. HAND, Circuit Judges, and KNOX, District Judge.
AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).
There seems to be no doubt that there was a proper case made for submission to the jury. In the case of Swenzel, he was close by the brewery, the water and electricity came from his house, and a shirt, which he at first admitted to be his, was found in the brewery. There seems every reason to believe that Swenzel testified falsely about the ownership of this shirt, and also about his ignorance of what was going on in a place next to his residence, where a brewery was being installed and trucks were coming and going. He was unable to identify any other persons connected with the enterprise, and he and the defendant Bindel, with another defendant Schwertz, against whom the information was dismissed, were the only persons identified who were about these premises. Swenzel's story of the sale of the property and the installation of the brewing plant by the purchasers is uncorroborated by any witness, and stands upon his own unsupported oath.
Bindel's attempted flight, his assumed name and fantastic story about catching rabbits in his hands, coupled with the entries in his memorandum book of the number of brews on certain days in April, made a strong case against him. The jury evidently believed the testimony of the government and thought that it sustained the information filed against both defendants. We can find no insufficiency of evidence preventing the submission to the jury.
In respect to the failure to charge as requested, it is to be noted that there was no exception by either defendant to the charge as such. The statement that Swenzel had the right to take the stand, and that when he took the stand and testified in his own behalf he was a competent witness, and that the jury must consider his testimony as it would that of any other witness, keeping in mind the interest he had in the outcome of the case, was favorable to Swenzel. It called the attention of the jury to the fact that Swenzel, though a defendant, and as such having an interest in the outcome of the case, ought to have his testimony considered as that of any other witness. It was a sort of...
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State v. White
...about it; but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.' And in Swenzel v. United States, 22 F.2d 280, 2 Cir., we find: 'Undoubtedly to say anything about the failure of a defendant to testify tends to keep that prejudicial considerat......
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Ingram v. United States
...raised as to whether such an instruction helps or hurts a defendant, and whether he may not be better off without it. Swenzel v. United States, 2 Cir., 22 F.2d 280; Becher v. United States, 2 Cir., 5 F.2d 45, certiorari denied 267 U.S. 602, 45 S.Ct. 462, 69 L.Ed. 808; see also, Wilson v. Un......
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United States v. Bruno, 339.
...the instruction was itself important, than because an earlier comment of the judge had made it so. On the other hand in Swenzel v. United States, 2 Cir., 22 F.2d 280, we held that such a refusal did not require us to reverse. The statute is primarily intended to prevent the affirmative use ......