Gilson v. United States
| Decision Date | 14 May 1919 |
| Docket Number | 215. |
| Citation | 258 F. 588 |
| Parties | GILSON et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Harrison P. Lindabury, of Newark, N.J., for plaintiffs in error.
Francis G. Caffey, U.S. Atty., and Frank M. Roosa, Sp. Asst. U.S Atty., both of New York City.
The indictment is against numerous persons and corporations for a conspiracy (Criminal Code (Act March 3, 1909, c. 321) Sec 37, 35 Stat. 1096 (Comp. St. Sec. 10201)) to defraud the United States. It was charged and proven that several firms and corporations (whose names are of no importance) contracted with the United States, through proper officers of the War Department, to make about a million 'service hats' for army use. The several contracts calling for this quantity of headgear were made at divers times between June, 1916, and June, 1917; that is, both before and after the declaration of war by the United States against Germany. The indictment having been severed as to some of the defendants, the earlier contracts became unimportant, when Gilson and Duffy, with two other men, were tried.
Many if not most of the hats contracted for were made at two factories; one in Peekskill, N.Y., and the other in New Jersey. Gilson was an employe of the United States and inspector at the Peekskill factory; Duffy was similarly employed and stationed at the New Jersey establishment. Their duties were to see that the United States got what it had contracted for, and particularly that the said 'service hats' were made of the material (viz. the hair or fur of certain specified animals in certain definite proportions) agreed on in contract and specifications. The two men who were tried with Gilson and Duffy were employes of one or the other of the factories above named.
The fraud alleged to have been the object of the conspiracy, and actually perpetrated according to the evidence, consisted in substituting inferior hair or fur, or deficient quantities of the more expensive qualities of hair, in that mixture of divers sorts of commercial hairs which, when felted, makes '*********.' The result of the fraud was a hat cheaper than, and inferior to, that contracted and paid for.
The evidence for the prosecution tended to show that one John J slattery, named as a defendant in the indictment, but who died before trial, was the man most actively concerned in, if not the originator of, this scheme of fraud. He went from one factory to the other, giving directions or making arrangements for the preparation of the inferior hair mixtures above referred to. It was not contended below, nor is it argued here, that the fraud did not occur. The defense of the four men tried was that they were no parties to the scheme, were not aware of any wrong, and were therefore not conspirators with Slattery, deceased, or any one else.
Of the four defendants tried, two were acquitted; Gilson and Duffy were convicted, and brought this writ.
Before WARD, ROGERS, and HOUGH, Circuit Judges.
HOUGH Circuit Judge (after stating the facts as above).
The indictment charges as overt acts eight several happenings occurring at sundry dates between June 26, 1916, and October 1, 1917. None of the overt acts alleged to have taken place in 1916 were proven; most of those not proven being appropriate (if at all) only in respect of the defendants as to whom there had been a severance.
In his colloquial charge the learned trial judge called the attention of the jury to the fact that the indictment set forth 'some eight overt acts.' He described certain of the overt acts aforesaid as to which evidence had been given, and further stated: 'If one of these overt acts was performed by one of the parties, or one or more of the parties, then that is sufficient under the statute, providing you find there is a conspiracy, to make out the crime as charged.'
He also said:
'If any of these overt acts that I have called your attention to, and such others as...
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