Berlin v. United States

Decision Date26 August 1926
Docket NumberNo. 3390.,3390.
CourtU.S. Court of Appeals — Third Circuit

Herman B. J. Weckstein, of Newark, N. J., for plaintiff in error.

Walter G. Winne, U. S. Atty., of Hackensack, N. J., and Richard C. Plumer, Asst. U. S. Atty., of Newark, N. J.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

The plaintiff in error, hereinafter called defendant, was indicted, tried, and convicted for having used the United States mails to execute a scheme and artifice to defraud which he had devised in violation of section 215 of the federal Criminal Code (Comp. St. § 10385). He moved for the direction of a verdict at the conclusion of both the government's case and his case, but the motions were denied, and the denial of these motions is the ground on which he bases his right to a reversal. He contends that the government did not produce evidence sufficient to sustain the charges, and therefore it was error to submit the case to the jury. In addition, he contends that the trial judge erred in the admission of testimony and in refusing to charge as requested.

The indictment contained eight counts, but at the end of its case the government abandoned the first, third, sixth, and seventh. This left remaining the second, fourth, fifth, and eighth counts, on which the defendant was convicted and sentenced. The scheme charged in the indictment was that the defendant would organize a company, known as the Montague Company, Inc., which he would control, and through which, for his own personal gain, he would operate and would place advertisements in the Elks Magazine, the American Legion Weekly, and other magazines, periodicals and newspapers circulating throughout the United States, in which it would be represented that the Montague Company was engaged in manufacturing and in dealing at wholesale and retail in all kinds of equipment for police, sheriffs, detectives, penitentiaries, peace officers, and penal institutions generally, in binoculars, field glasses, revolvers, shotguns, rifles, automatic arms and ammunition, for which the public would send mail orders, accompanied by checks in payment thereof, which orders the defendant would in part supply by sending goods inferior in quality to those advertised, and would in part not supply at all, pretending that he was prevented from so doing by some tariff regulation, or some one of various other reasons, though he would cash the checks and retain the money.

The trial judge could not have directed a verdict for the defendant, unless there was the entire absence of evidence to support the charges. Sparf & Hansen v. United States, 156 U. S. 51, 99, 15 S. Ct. 273, 39 L. Ed. 343. The government submitted evidence which tended to establish the scheme alleged. The defendant organized the Montague Company, Inc., caused advertisements to be inserted in many publications, received orders, accompanied by checks which he cashed, and never supplied the goods ordered, or supplied goods of an alleged inferior quality. Many who sent in orders lost their money. He used the mails to execute his enterprise. Whether or not he devised a scheme to defraud, or undertook the venture with honest intentions, was a question for the jury.

It is the function of the jury to hear the evidence and find the facts. In doing this, it will consider the intelligence, fairness, interest, or bias of witnesses, and determine the weight to be given to their testimony. Hopt v. State, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262; Goldsby v. United States, 160 U. S. 70, 76, 16 S. Ct. 216, 40 L. Ed. 343; Cohen v. United States (C. C. A.) 282 F. 871. No fact tried by a jury may be otherwise re-examined in any court of the United States than according to the rules of the common law, and the only methods known to the common law for the re-examination of facts found by a jury are by a new trial, granted by the trial court, or by the award of a venire facias de novo by the appellate court for some error of law. Seventh Amendment to the Constitution of the United States; Martinton v. Fairbanks, 112 U. S. 670, 674, 5 S. Ct. 321, 28 L. Ed. 862. The evidence, if believed, was sufficient to sustain the verdict, which settled the fact. This disposes of the assignments based upon the refusal to direct a verdict. It only remains for us to determine whether or not the learned trial judge committed some error of law in the admission or rejection of evidence, or in his charge to the jury or refusal to charge as requested.

In the admission of evidence, the most serious question arose during the cross-examination of the defendant as to his previous convictions. His cross-examination on this subject was rather exhaustive, and covers many pages in the record. He was required to admit, over objection, that he had pleaded non vult to the charge of issuing a bad check in Hartford, Conn., to the charge of obtaining goods under false pretenses in Philadelphia, and to several charges in Newark, N. J., and was sentenced on these pleas.

The plea of nolo contendere has the same effect as a plea of guilty in the trial of a criminal case. It is a confession only for the purpose of the criminal prosecution, and does not bind the defendant in a civil suit for the same wrong. Wharton's Criminal Pleading, 418; Bishop's Criminal Procedure, 802; Peacock v. Hudson County, 46 N. J. Law, 112; State v. Henson, 66 N. J. Law, 601, 50 A. 468, 616; State v. Duelks, 97 N. J. Law, 43, 116 A. 865; Commonwealth ex rel. District Attorney v. Jackson, 248 Pa. 530, 94 A. 233.

In the case of Mansbach v. United States (C. C. A.) 11 F.(2d) 221, this court summarized the law as follows:

"Error is assigned to rulings of the court in admitting some of this evidence, and particularly to the admission, over objection, of answers to questions concerning the previous criminal record of the defendant. Briefly stated, the applicable law is this: By general rule of law, evidence for the prosecution assailing the character of a defendant in a criminal action is not admissible unless the defendant himself has put his character in issue. The reason for the rule, aside from its obvious fairness, is that previous conviction of a crime wholly independent of the one for which the accused is being tried, even though it be of the same character, does not prove him guilty of the crime charged in the...

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