Bentel v. United States
| Decision Date | 17 June 1926 |
| Docket Number | No. 396.,396. |
| Citation | 13 F.2d 327 |
| Parties | BENTEL v. UNITED STATES. AMOS v. SAME. |
| Court | U.S. Court of Appeals — Second Circuit |
David V. Cahill, of New York City, for plaintiff in error Bentel.
Gallert, Hilborn & Raphael and David J. Gallert, all of New York City, for plaintiff in error Amos.
Emory R. Buckner, U. S. Atty., of New York City (Frederic R. Coudert and David P. Seigel, Asst. U. S. Attys., both of New York City, of counsel), for the United States.
Before ROGERS, HOUGH, and HAND, Circuit Judges.
HOUGH, Circuit Judge (after stating the facts as above).
Of the writ taken by Bentel it is almost enough to say that we think it wholly without merit.
There are assignments of error relating to the admission of evidence, concerning which we think the matters complained of were either discretionary with the trial judge, or illustrate the common complaint of counsel who start an inquiry and feel hurt when opponents pursue the matter to the disadvantage of him that started it.
It is also said to require a new trial that the prosecutor summed up in too forcible, if not a virulent, manner. We see nothing to complain of, except matters of taste, not errors of law. On the main proposition for Bentel, that there was no substantial evidence of his guilt to go to the jury, we must entirely disagree. It was admitted that Bentel was, if not a deviser, a most prominent forwarder, of the scheme for capitalizing Morosco. He promised to be the "watchdog of the treasury," and "watch Leven," with whom he joined hands to defraud the public by misrepresenting what Morosco had, and defraud the latter by withholding what Morosco Company was expected to yield to Morosco.
We perceive no legal question that will be made clearer by discussing the sordid details of evidence. The judgment as to Bentel is affirmed.
Amos is in a different and interesting category. He was never a principal, and he had no part in devising the original advertisements or prospectuses, which contained most of the falsehoods mentioned in the indictment.
He was primarily a salesman, and for a while the sales manager, a position which brought him into intimate business relations with Bentel and Leven. He was, further, a prized salesman, and apparently a most successful one, for, while others had to be content with 15 to 20 per cent. commission, Amos received at least 25 and possibly 30 per cent. The argument on his behalf is this: Amos as an employee sent out circulars and prospectuses as true statements made by his superiors, who never revealed the truth to him, and he was justified in relying on those superiors' statements.
Obviously this argument is, in the main, matter for a jury. We are without power to do more than say whether or not there was evidence to go to the jury, and that, in this case, is equivalent to declaring the rule as to proof of scienter in respect of one who does not form, but as a servant assists in forwarding a scheme to defraud.
A scheme, under section 215, is usually, as in this instance, a method of obtaining money under false pretenses; it is in common speech a cheat by means of lies. But a stock-selling swindle like this was not an indictable cheat at common law; for "when one injured another by a falsehood, the common law said the neighbor should not have believed him"; wherefore the government permitted a private suit, but denied a criminal prosecution. Bishop, Cr. Law (Ed. 1892) vol. 2, § 582. Cf. Rex v. Wheatley, 2 Burr. 1125, per Mansfield, C. J. This was a theory of human responsibility suitable for a simple, if not a rude, state of society, and by statute for more than a century the Legislature has been making crimes of representations which would at common law only have supported an action for deceit, if even that were possible. Section 215, Criminal Code, is emphatically a statute of that kind.
But during the same time that statutory criminal...
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