Bain v. United States

• Citation: 262 F. 664
• Decision Date: 06 January 1920
• Docket Number: 3301.
• Parties: BAIN v. UNITED STATES. [*]
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

262 F. 664

BAIN v. UNITED STATES. ^[*]

No. 3301.

United States Court of Appeals, Sixth Circuit.

January 6, 1920

A. M Tillman, and J. C. McCall, both of Nashville, Tenn., for plaintiff in error.

Lee Douglas, U.S. Atty., of Nashville, Tenn.

Before KNAPPEN, DENISON, and WARRINGTON, Circuit Judges.

DENISON Circuit Judge (after stating the facts as above).

1. One of the grounds of a motion for new trial, overruled by the trial judge, was that the verdict was not supported by the evidence. As to this, the trial judge said:

'The verdict is sustained by material evidence, and is not manifestly against the weight of the evidence, so as to require or warrant its being set aside.'

While it is not claimed that we could or should review the discretion of the trial judge in passing upon the motion for new trial, it is urged that he misconceived his legal duty and thus committed reversible error. This ground of error is not assigned; but, if there was error in this respect, which was plain and clear, we should be inclined to notice it under rule 11 (202 F. viii, 118 C.C.A. viii), and accordingly we have considered this complaint.

Counsel's proposition is that, if the trial judge is not himself satisfied that the evidence shows defendant's guilt beyond a reasonable doubt, it is his legal duty to set aside the conviction and give a new trial; that what the judge said in this case indicated his own belief that the evidence was not of this compelling character; and that there was no room for the exercise of his discretion, since, by his conclusion, he had removed the foundation therefor. We think this position untenable, and that there was no error, even if it should be assumed that the personal opinion of the trial judge was as is thus supposed. It is, of course, within the discretion of a trial judge to grant a new trial, if he thinks that, in a civil case, the jury disregarded the preponderance of evidence, or that, in a criminal case, the evidence lacks that degree of persuasiveness without which there should be no conviction; but we do not understand that his imperative legal duty in this respect, apart and distinct from his discretionary rights and duties, is different from that of an appellate court, nor that he must set aside a verdict merely because he thinks it is not the right one under the evidence; and it follows that it cannot be said to be his legal duty to set aside a conviction, unless he is convinced that no reasonable man can think the evidence sufficient beyond a reasonable doubt-- in other words, unless he concludes that the verdict was not supported by any substantial evidence, in the sense in which that phrase must be used in connection with the necessity of proof beyond a reasonable doubt. See Kelly v. U.S. (C.C.A. 6) 258 F. 392, and cases cited on pages 406, 407, . . . C.C.A. . . . .

The general principle may be illustrated by the familiar case where the trial judge sets aside a verdict in a civil case because it is against the weight of the evidence, and, upon another trial before the same judge and upon the same evidence, another jury renders the same verdict. Undoubtedly, he may, as he often does, consider this history as a sufficient reason for disregarding his still persisting individual opinion about the evidence, and for refusing another trial; and this practice demonstrates that the opinion of the judge upon that subject does not, as matter of law, constrain him to grant a new trial accordingly. There is nothing in this record to show that the trial judge had found the evidence so insufficient as to deprive him of his ordinary discretionary power.

2. Many of the transactions involved, during the long period of time covered, depended upon Bain's checks and drafts which, in due course of business, would have been returned by the bank to him. The prosecution was prepared to give secondary evidence regarding their contents, and undertook to lay the basis therefor by demanding that Bain produce the originals of these as well as of his unpaid checks and drafts. It is sufficient to say that the manner of the demand and the proceedings had in connection therewith clearly constitute error, in that they amounted to an attempt to compel the respondent to testify against himself, within the definition fixed by this court in McKnight v. U.S., 115 F. 972, 54 C.C.A. 358. It ought to be said that not until after the proceedings had reached this stage was the attention of the court called to the particular objection, nor-- apparently-- did it occur to defendant's counsel. When the objection was made and had been considered, the court said to the jury:

'Under the constitutional right of defendant, that notice (to produce original checks and drafts) should not have been given, and the court was in error in making the suggestion and permitting the notice to be given in your presence, and that action is withdrawn. That notice goes for nothing. You are not to draw any inference as to whether the defendant has or has not these vouchers in his possession. There is no inference to be drawn against him, if it appears that he does not produce them later in the trial. The government proceeds to prove its case and (the defendant was not required to make the production) and no inference whatever is to be drawn from his failure to do so. You understand that. Expunge that matter from your minds as though you had not heard it.'

We do not find that any exception was saved to the earlier action of the court in permitting the demand, nor to any supposed insufficiency of the effort thus made by the court to cure the error; and yet we do not depend solely upon that ground for concluding, as we do, that there was no reversible error. Plainly, the trial court did everything possible to neutralize the false step which had been made. The argument of counsel is that the injury was past remedy, since it was impossible for the jury to expunge from their minds the things which they had seen and heard. See comment to that effect in Gillespie v. State, 5 Okl.Cr. 546, 115 P 620, Ann. Cas. 1912D, 259, 35 L.R.A. (N.S.) 1171. Every such case must depend upon its own circumstances as to whether the net result is reversible error; and we therefore look further into the record. The case is one where ample secondary evidence was at hand to prove many of these checks and drafts, and some evidence as to all of them, and there are no suggestions that this secondary evidence was attacked or questioned. The inference that many of these originals had come into Bain's possession, and that he could or would produce them or account for their absence, if he questioned anything shown by the bank books, would be so natural in the minds of all men that we doubt...