Fitter v. United States

Citation258 F. 567
Decision Date14 May 1919
Docket Number214.
PartiesFITTER et al. v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

[Copyrighted Material Omitted]

O'Gorman Battle & Vandiver, of New York City (George Gordon Battle and Rogers B. Wood, both of New York City, of counsel), for plaintiff in error.

James D. Bell, U.S. Atty., of Brooklyn, N.Y. (Vine H. Smith, Sp Asst. U.S. Atty., of counsel), for the United States.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The plaintiff in error, hereinafter called the defendant, was indicted with five others for having conspired to defraud the United States. They were all tried together, and all were found guilty. The defendant Fitter was sentenced to imprisonment at Atlanta for one year and nine months and to pay a fine of $5,000.

He alone has sued out a writ of error, and there are 62 assignments of error, which occupy 12 printed pages of the record. We think this a good occasion to call attention of counsel to what the Supreme Court has said on several occasions in reference to the practice of burdening the record with dragnet assignments of error. In Phillips & Colby Construction Co. v. Seymour, 91 U.S. 646, 23 L.Ed. 341, the assignments of error were 10 less than the number found in this case, and the court said:

'The object of the rule requiring an assignment of errors is to enable the court and opposing counsel to see on what points the plaintiff's counsel intend to ask a reversal of the judgment, and to limit the discussion to those points. This practice of unlimited assignments is a perversion of the rule, defeating all its purposes, bewildering the counsel of the other side, and leaving the court to gather from a brief, often as prolix as the assignments of error, which of the latter are really relied on. We can only try to respond to such points made by counsel as seem to be material to the judgment which we must render.'

In Central Vermont Ry. Co. v. White, 238 U.S. 507, 35 Sup.Ct. 865, 59 L.Ed. 1433, Ann. Cas. 1916B, 252, the court recurred to the subject again, quoting from the earlier case which we have cited.

The practice condemned is not conducive to the better administration of the law, and embarrasses, rather than promotes, the cause of justice.

The defendant at the time the alleged conspiracy was formed was a dealer in supplies and provisions in the borough of Brooklyn. Two of his codefendants were employes of the United States in the service of the Navy Department at the City Park Barracks in Brooklyn, where it was their duty to examine and check incoming supplies purchased by the United States government for delivery at the City Park Barracks, and to issue receipts for the provisions and supplies, and to report the amount of the same to the paymaster in the United States Navy Yard so that he might be informed of the payments proper to be made by him from the funds of the United States in his custody. Three other of the codefendants were employes of the defendant, whose duty it was to drive the defendant's trucks.

The conspiracy alleged was that defendant should agree to sell and deliver provisions and supplies to the United States for the use of the Navy Department, and that only a part of such provisions and supplies should be actually delivered, and that it should be made to appear by the issuance of false receipts that such provisions and supplies had been delivered and were in the possession of the department.

Two of the codefendants who were in the service of the Navy Department, and who had issued false receipts showing the delivery of greater quantities of butter, eggs, meat, and poultry than were received, pleaded guilty and gave testimony on behalf of the government. The alleged method which the conspirators adopted was for the defendant to have the correct quantity of provisions brought to the Navy Yard on defendant's trucks, and then, after receipts had been issued purporting to show the delivery of the entire quantity, the drivers were permitted to carry back to defendant's store substantial portions of the supplies for which receipts had been issued. Three other codefendants, drivers of Fitter's trucks, confessed to the frauds perpetrated, and their sworn confessions were introduced in evidence at the trial.

The testimony in the case, if the jury believed it, certainly proved by overwhelming evidence the guilt of the defendant. The government claims that it not only proved its case beyond a reasonable doubt, but proved it beyond any possible doubt.

The defendant seeks a reversal, and he raises certain objections to the indictment, and to rulings of the court, and to parts of the summing up of the attorney for the prosecution. In a case where the evidence of guilt is so overwhelming, the objections of the defendant must be serious and clearly prejudicial to justify the court in reversing the judgment and compelling the government to put this man again on his trial.

The defendant mainly relied in his effort to obtain a new trial upon certain remarks addressed to the jury by the Assistant United States Attorney in his summing up. The remarks complained of are the following:

'You have got your duty to do, and I have got my duty to do, and your work is just as sacred and just as dear to your country as the man who is over in France to-day and fighting that fight from the front; that it would be unworthy for me to mention the name of my country and your country in the prosecution of this case. I do not think he meant that, because he is a better American than that. Why, this contract, gentlemen, that is distinctly a war contract. This, gentlemen, is a contract that was founded and entered into for the only purpose of helping us in the prosecution of this great world war'--

At this point counsel objected, and a colloquy between counsel ensued, and at its close counsel for the government resumed, saying:

'Gentlemen, these facts are given you for your consideration so that you may, in your integrity and upon your oaths as jurymen, do your duty as you see it. We who are not on the battle-lines are here in this country enjoying peace; enjoying all those liberties that only men who are allowed to do business and make a profit while the war is going on on the other side; but I say to you, gentlemen, woe be to the vulture that uses as his carrion the profits derived by illegal sale of the government's goods.'

Here counsel for defendant renewed his objection on the ground that it was an appeal to the passion and prejudice of the jury. Then followed another short colloquy between counsel, and counsel for the government appealed to the court that he be permitted to draw his own inferences of the testimony that had been adduced. Whereupon the court observed:

'Gentlemen, you will so understand.'

And counsel for defendant excepted.

Later on in his argument counsel for the government said:

'Gentlemen, this does hurt, I know; but I want it to hurt. I want it to go right down to the heart of these men. I want them to feel it as I feel it, gentlemen. Think of your children now trying to sell Thrift Stamps as my children and some of your children are, stopping people on the highways to help in the successful prosecution of this great war. Think of you. Think of me. Think of these men in the courtroom, going to their theaters or places of amusement to-night, and listening to some speaker to-night asking them to buy Liberty Bonds, and think of some thief that would steal the money that you put into that Liberty Bond in order to make the war a success, and ask yourselves the question: Is this prosecution under these circumstances just, and have I the right to expect a verdict in this case of guilty as charged in the indictment? What is the country, gentlemen? Is the country that we live in-- is it these buildings; is it the shores of California, with its wonderful, velvety grass; is it the mountains; is it the material that we use to fight the terrible Hun with and barbarian; is it the guns; is that our country? Why, No. You are what we call our country. The men in the courtroom. The human beings that go to make this country what it is. That is your country. I tell you that when men violate this law at this time, and they come before twelve honest, intelligent jurors, and we give them the fair trial that they have had, we give them everything that they are entitled to. We say, this shall not continue, because it is the wrong, thieving crime that will hinder or delay the uplift of a great world and make it a better place to live in, and must be stamped out in its inception; and let us say as we leave the courtroom tonight that no contractor in this district, or anybody that does business with the government, will do it hereafter, except on the level, because we are going to make our verdict ring true and clear in the ears of every contractor.'

Counsel for defendant again interposed on the ground that it was an appeal to the prejudice and passion of the jury, and he asked for the withdrawal of a juror on the ground that the jury may have been prejudiced. The court denied the motion, and an exception was taken.

The court in instructing the jury charged:

'I expressly charge you that you are to disregard any remarks of counsel made throughout the trial, or during the summing up, so far as they may affect your verdict, because your verdict can only be reached upon the evidence itself as presented at the trial.'

On the argument in this court counsel asserted that the remarks were such as to preclude the possibility of a fair and impartial trial. It was also urged upon us as quite probable that the appeal to render a verdict from patriotic motives might have had a greater effect upon the jury than the evidence...

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