Nash v. United States
| Decision Date | 04 January 1932 |
| Docket Number | No. 228.,228. |
| Citation | 54 F.2d 1006 |
| Parties | NASH et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Siegel & Corn, of New York City (Isaac Siegel and Jacob Corn, both of New York City, of counsel), for Richard Nash.
Sylvester & Harris, of New York City (Charles L. Sylvester, of New York City, of counsel), for Philip de Stefano.
George Z. Medalie, U. S. Atty., and John A. Wilson, both of New York City (Livingston Hall, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
The guilt of the defendants is so plain that only some serious blunder in the conduct of the trial should result in a reversal. Today, under section 391 of title 28 of the U. S. Code (Jud. Code, § 269, 28 USCA § 391), we no longer assume that all errors are prejudicial, but regard the whole record with an eye to the substantial correctness of the result. Haywood v. U. S., 268 F. 795 (C. C. A. 6); Simpson v. U. S., 289 F. 188 (C. C. A. 9); Shuman v. U. S., 16 F.(2d) 457 (C. C. A. 5); Rice v. U. S., 35 F.(2d) 689, 694 (C. C. A. 2). The most plausible complaint here is as to the admission of Keane's written statement. He was one of the defendants, and added his confirmation to a declaration prepared immediately after his arrest, and signed by one, Lachenauer, a narcotic agent, and the chief witness for the prosecution. So far as this was Lachenauer's own, it was incompetent, for it did not conform with the conditions which alone make admissible an earlier declaration in corroboration of what a witness says upon the stand. It was allowed in evidence against Keane alone, and as his admission, under the recognized subterfuge of an instruction to the jury to confine its use to him. If we were to reframe the law of evidence and were still to preserve the hearsay rule, it might be better to keep out all such, for the practice, though well settled, is an evasion, and evasions are discreditable. There is no reason why the prosecution, if it chooses to indict several defendants together, should not be confined to evidence admissible against all, and if real injustice were done, the result would be undesirable. In effect, however, the rule probably furthers, rather than impedes, the search for truth, and this perhaps excuses the device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody's else.
Nevertheless, the rules ought to be observed so far as they can, and such evidence should at least be confined to declarations professing to emanate from the defendant. In the case at bar this was not done, for the written statement admitted was in form Lachenauer's and read as his; Keane merely added a postscript that he subscribed to its truth. Thus the prosecution got whatever force there was in the fact that its chief witness had told the same story freshly as he was telling on the stand. The substance of what Keane said could have been divorced from this; it would have been possible so to couch it as to keep the promise as well to the sense as to the ear. But no damage was really done, for, while the defence was that the case had been fabricated, there was no reason to suspect that this had been done between the arrest and the trial, in which case alone a corroborative declaration of Lachenauer was prejudicial. Even though, for reasons we shall give in a moment, we pass upon this record with a jealous eye, the damage is too fanciful for serious consideration. The same is true of the defendants' proposals — as recited by Lachenauer and Keane — made after the bribe passed, to commit a similar crime in the future. Perhaps these cannot be defended as part of the inducement to Lachenauer to violate his duty, but it is inconceivable that they should have given greater credence to...
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