Fitter v. United States
Citation | 258 F. 567 |
Decision Date | 14 May 1919 |
Docket Number | 214. |
Parties | FITTER et al. v. UNITED STATES. |
Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
[Copyrighted Material Omitted]
O'Gorman Battle & Vandiver, of New York City (George Gordon Battle and Rogers B. Wood, both of New York City, of counsel), for plaintiff in error.
James D. Bell, U.S. Atty., of Brooklyn, N.Y. (Vine H. Smith, Sp Asst. U.S. Atty., of counsel), for the United States.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
The plaintiff in error, hereinafter called the defendant, was indicted with five others for having conspired to defraud the United States. They were all tried together, and all were found guilty. The defendant Fitter was sentenced to imprisonment at Atlanta for one year and nine months and to pay a fine of $5,000.
He alone has sued out a writ of error, and there are 62 assignments of error, which occupy 12 printed pages of the record. We think this a good occasion to call attention of counsel to what the Supreme Court has said on several occasions in reference to the practice of burdening the record with dragnet assignments of error. In Phillips & Colby Construction Co. v. Seymour, 91 U.S. 646, 23 L.Ed. 341, the assignments of error were 10 less than the number found in this case, and the court said:
In Central Vermont Ry. Co. v. White, 238 U.S. 507, 35 Sup.Ct. 865, 59 L.Ed. 1433, Ann. Cas. 1916B, 252, the court recurred to the subject again, quoting from the earlier case which we have cited.
The practice condemned is not conducive to the better administration of the law, and embarrasses, rather than promotes, the cause of justice.
The defendant at the time the alleged conspiracy was formed was a dealer in supplies and provisions in the borough of Brooklyn. Two of his codefendants were employes of the United States in the service of the Navy Department at the City Park Barracks in Brooklyn, where it was their duty to examine and check incoming supplies purchased by the United States government for delivery at the City Park Barracks, and to issue receipts for the provisions and supplies, and to report the amount of the same to the paymaster in the United States Navy Yard so that he might be informed of the payments proper to be made by him from the funds of the United States in his custody. Three other of the codefendants were employes of the defendant, whose duty it was to drive the defendant's trucks.
The conspiracy alleged was that defendant should agree to sell and deliver provisions and supplies to the United States for the use of the Navy Department, and that only a part of such provisions and supplies should be actually delivered, and that it should be made to appear by the issuance of false receipts that such provisions and supplies had been delivered and were in the possession of the department.
Two of the codefendants who were in the service of the Navy Department, and who had issued false receipts showing the delivery of greater quantities of butter, eggs, meat, and poultry than were received, pleaded guilty and gave testimony on behalf of the government. The alleged method which the conspirators adopted was for the defendant to have the correct quantity of provisions brought to the Navy Yard on defendant's trucks, and then, after receipts had been issued purporting to show the delivery of the entire quantity, the drivers were permitted to carry back to defendant's store substantial portions of the supplies for which receipts had been issued. Three other codefendants, drivers of Fitter's trucks, confessed to the frauds perpetrated, and their sworn confessions were introduced in evidence at the trial.
The testimony in the case, if the jury believed it, certainly proved by overwhelming evidence the guilt of the defendant. The government claims that it not only proved its case beyond a reasonable doubt, but proved it beyond any possible doubt.
The defendant seeks a reversal, and he raises certain objections to the indictment, and to rulings of the court, and to parts of the summing up of the attorney for the prosecution. In a case where the evidence of guilt is so overwhelming, the objections of the defendant must be serious and clearly prejudicial to justify the court in reversing the judgment and compelling the government to put this man again on his trial.
The defendant mainly relied in his effort to obtain a new trial upon certain remarks addressed to the jury by the Assistant United States Attorney in his summing up. The remarks complained of are the following:
--
At this point counsel objected, and a colloquy between counsel ensued, and at its close counsel for the government resumed, saying:
Here counsel for defendant renewed his objection on the ground that it was an appeal to the passion and prejudice of the jury. Then followed another short colloquy between counsel, and counsel for the government appealed to the court that he be permitted to draw his own inferences of the testimony that had been adduced. Whereupon the court observed:
'Gentlemen, you will so understand.'
And counsel for defendant excepted.
Later on in his argument counsel for the government said:
Counsel for defendant again interposed on the ground that it was an appeal to the prejudice and passion of the jury, and he asked for the withdrawal of a juror on the ground that the jury may have been prejudiced. The court denied the motion, and an exception was taken.
The court in instructing the jury charged:
'I expressly charge you that you are to disregard any remarks of counsel made throughout the trial, or during the summing up, so far as they may affect your verdict, because your verdict can only be reached upon the evidence itself as presented at the trial.'
On the argument in this court counsel asserted that the remarks were such as to preclude the possibility of a fair and impartial trial. It was also urged upon us as quite probable that the appeal to render a verdict from patriotic motives might have had a greater effect upon the jury than the evidence...
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