De Camp v. United States

• Decision Date: 04 January 1926
• Docket Number: No. 4252.,4252.
• Parties: DE CAMP v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

10 F.2d 984 (1926)

DE CAMP v. UNITED STATES.

No. 4252.

Court of Appeals of District of Columbia.

Submitted November 2, 1925.

Decided January 4, 1926.

T. M. Wampler, of Washington, D. C., for appellant.

Peyton Gordon, of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice.

Appellant, De Camp, appeals from a conviction under an indictment charging him and Samuel M. Acker, Anderson B. Lacy, Edwin C. Reed, and Ralph A. Howe, of the crime of conspiring to use the mails in furtherance of a scheme and device to defraud in connection with the promotion and sale of the capital stock of the Crystal Glass Casket Company, a corporation. Acker and Lacy were granted a severance. On trial, appellant was convicted, Reed was acquitted, and the jury disagreed as to Howe.

The first assignment of error is based upon the action of the trial court in overruling a motion for a directed verdict. It is insisted that everything proved at the trial is as consistent with innocence as with guilt, and numerous authorities are cited to the effect that, where this condition is disclosed, a motion for a directed verdict should be granted. We have carefully examined the testimony, as disclosed in the record in this case, and are satisfied that the evidence was amply sufficient to support the verdict of the jury, and the denial of the motion accordingly was without error.

Error is assigned on the admission and exclusion of certain evidence. It appears that a reel of motion pictures was taken at the company's plant in Oklahoma, purporting to show the actual manufacture, in all stages, of glass caskets of different sizes. Defendants offered the reel in evidence, and moved the court for permission to exhibit the pictures to the jury by a moving picture machine in the courtroom. The court denied the motion and declined to permit the exhibition to be made to the jury. One of the principal criminating charges of the government in this case was that glass caskets could not be made, and evidence was introduced to sustain this contention. It was to meet this evidence that the moving picture was produced and offered. We think the court was right in refusing to admit the picture in evidence. A motion picture does not of itself prove an actual occurrence. The thing reproduced must be established by the testimony of witnesses. While the photograph may be a proper representation of the thing produced, yet the testimony of witnesses is required to verify the production. "Theoretically, of course, the moving picture can never be assumed to represent the actual occurrence; what is seen in it is merely what certain witnesses say was the thing that happened, and, moreover, the party's hired agents may so construct it as to go considerably further in his favor than the witnesses' testimony has gone, and yet any moving picture is apt to cause forgetfulness of this, and to impress the jury with the convincing impartiality of Nature herself. In view of these inherent risks of misleading, the trial judge may well deem a picture unsafe and inadmissible, when the introductory evidence has not convinced him that the risk is negligible." 2 Wigmore on Evidence, § 798.

Testimony was produced on behalf of the defendants tending to show the process of manufacture of glass caskets of different sizes and in all stages, and with this evidence before the jury it was for the trial court to determine whether a photograph or moving picture, such as was offered, was sufficiently verified as a proper representation of the process of manufacture as it actually existed. This court will not assume, on this record, to determine this question, and if, as contended by counsel for appellant, the testimony relative to the process of manufacture completely verifies the picture, then he cannot successfully claim injury from the refusal of the court to repeat this testimony to the jury by a moving picture display of the facts already in evidence. This is not the case of a photograph used to show the relative position of different objects, or to reconcile disputed issues of fact. The proof as to conditions of manufacture at the Oklahoma plant were testified to by witnesses presumed to be familiar with existing conditions; hence the admission of the motion pictures would have amounted to nothing more than a spectacular display of a...