Carothers v. United States, 11951.

• Citation: 161 F.2d 718
• Decision Date: 10 July 1947
• Docket Number: No. 11951.,11951.
• Parties: CAROTHERS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

161 F.2d 718 (1947)

CAROTHERS v. UNITED STATES.

No. 11951.

Circuit Court of Appeals, Fifth Circuit.

May 28, 1947.

Rehearing Denied July 10, 1947.

Walter F. Brown and H. Fletcher Brown, both of Houston, Tex., for appellant.

Brian S. Odem, U. S. Atty., and James K. Smith, Asst. U. S. Atty., both of Houston, Tex., for appellee.

Before HUTCHESON, McCORD, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

Defendant was charged in an indictment in twenty-six counts with violations of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq., and Maximum Price Regulation No. 165. Each count charged in substance that he willfully sold a particular service at a particular lot at a named price and that this price was in excess of the ceiling. Plaintiff's evidence concluded, a verdict was instructed for defendant on Counts 4, 6, 10, 13, 14, 17, 18, 19 and 25, and the jury acquitted him on seven counts¹ and convicted him on ten.² Sentenced to pay fine of $250 on each count, he is here insisting, in a brief containing 131 pages and specifying 82 errors, that the judgment must be reversed because (1) no case was made out in law on any of the counts, and (b) if there was, reversible errors were committed in rulings on the introduction of evidence and in the submission of the case to the jury.

The United States, pointing out that defendant offered no evidence in rebuttal or explanation of that offered by the government, insists that the case as to each count is really a simple one of a clear cut violation of price ceilings established by undisputed evidence on a trial free from reversible error, and that the judgment must be affirmed.

A careful study of the record and of the applicable law in the light of these opposing claims convinces us that as is so often the case when extreme claims are afoot, the right and truth of the case lies somewhere between them. We are of the opinion, in short, that the trial was neither as errorful as appellant would have us believe, nor as errorless as appellee claims, and that while the judgment of conviction should be affirmed as to some of the counts, it must be reversed as to others.

Though defendant was convicted on ten counts, the offences charged in them fall naturally into two groups of five each which may be described as "Park and Lock" counts³ and "Attendant Type" counts,⁴ and such differences as there are between the two groups are differences in their facts and not in the applicable principles of law. Because this is so, though appellant's points are many and his arguments extended, we may hope to dispose of them in an opinion which, summarizing his points of attack, will briefly state our conclusions as to them, and as briefly our reasons for so concluding.

A major general attack on the conviction as a whole is that arising out of the fact established by the evidence that defendant was not, as charged in the indictment doing business as All Right Auto Park but was merely a member of a limited partnership under Article 6112, Revised Civil Statutes of Texas, providing that general partners only shall be authorized to transact business and sign for the partnership, and to bind the same. It takes three forms: (1) a claim that proof of his limited connection with the business constitutes a fatal variance since the indictment charges that he was doing business as All Right Auto Park and as such made the sale; (2) an attack on the sufficiency of the evidence to make out a case of criminal responsibility against him, a special partner, for the acts of the employees of the partnership; and (3) an attack on the failure of the judge to give the limited partnership statute in charge.

We are convinced that there is no substance in these points. It is true that the indictment was not technically correct in charging that the defendant was doing business as All Right Auto Park and that it would have been better pleading to charge that he and others, constituting a limited partnership, were doing business. It is equally true, though, that however this technical variance might in times past have operated to prevent the common sense disposition of an appeal in a criminal case, such considerations have no weight today, for both by statute and by decision it is settled in federal jurisprudence that a variance to constitute reversible error must be material and prejudicial.⁵

The second point, that proof of this fact prevents conviction, is no better taken. Defendant was entitled to such benefit as he could get from the fact that he was not the sole owner of the business but a member of a limited partnership. This fact was before the jury to be considered by it in connection with all the other evidence including that of Morris and Lary as to conversations they had had with defendant about the charges. It was for the jury to give such weight to the fact of his being a limited partner and the circumstances as to when this limited partnership was entered into as they thought it deserved, and defendant having offered no testimony to rebut the inference of positive direction and control by him which the evidence raised is in a poor position to attack the verdict as contrary to the facts.

Of the third point, it is sufficient to say that the special charge defendant requested was not correct because it stated the purport of the statute only in part, and failed to state it fully and correctly as, if a charge of any kind on the subject was proper, it ought to have done.

Against the conviction on the Park and Lock counts, appellant levels many attacks. The most fundamental are (1) that the order of DeWitt C. Dunn, purporting to establish maximum prices as to them was not properly proved up so as to be admitted in evidence; and (2) that if it was proved up, it was without validity or effect for the reasons, (a) that M.P.R. 165, under which it purported to be made, expressly excepts parking lot services, (b) that it does not authorize any one to fix charges as Mr. Dunn did, and (c) certainly not Mr. Dunn, as acting director.

We cannot agree. An examination of the Federal Register makes it clear not only that the services rendered in this case were covered by the regulation, but that the statute does not, as claimed by appellant, limit price determinations to regulations of general applicability. On the contrary, we think it may not be doubted that they expressly authorize and provide for...