Gomila v. United States, 11084.

• Decision Date: 28 December 1944
• Docket Number: No. 11084.,11084.
• Citation: 146 F.2d 372
• Parties: GOMILA et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

146 F.2d 372 (1944)

GOMILA et al. v. UNITED STATES.

No. 11084.

Circuit Court of Appeals, Fifth Circuit.

December 28, 1944.

Warren O. Coleman, Clarence Dowling, and George P. Nosacka, of New Orleans, La., for appellee.

Edw. J. Boyle, Asst. U. S. Atty., of New Orleans, La., for appellee.

Before HOLMES, McCORD, and LEE, Circuit Judges.

LEE, Circuit Judge.

Francis X. Gomila and Anthony Chauppette were convicted with four others under an indictment charging them with conspiracy to violate:

1. Section 2810 of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 2810, by having the possession, custody, and control of certain unregistered stills.

2. Section 2834 of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 2834, by unlawfully making and fermenting certain mash for the distillation and production of spirits on premises other than a distillery duly authorized according to law.

3. Section 2833 of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 2833, by unlawfully carrying on the business of a distillery without having given bond as required by law.

Gomila was sentenced to imprisonment for a period of two years and fined the sum of $10,000; Chauppette was sentenced to imprisonment for a period of one year and fined the sum of $2,500. Each appealed from the sentence thus imposed.

Appellants rely for reversal on nine specifications of error. Under our view of the case only three of them need be considered; they are as follows:

1. That the court improperly charged the jury on the presumption of innocence.

2. That the court erred in refusing to permit the jury to propound questions of law verbally and in the hearing of defendants and their counsel, but required the jury to submit written questions which were not placed of record and of the nature of which defendants were not informed.

3. That the court erred throughout the trial in unnecessarily taking an active part in the prosecution, by taking away the examination of witnesses from respective counsel who were properly conducting said examinations, and by questions and comments showing a hostile attitude towards defendants.

In charging the jury on the presumption of innocence, the court said: "The rule of the presumption of innocence imposes upon the government the burden of establishing the guilt of each defendant, as stated, beyond a reasonable doubt, but, Gentlemen, as forceful as that rule is in protecting one charged with crime, it must never be forgotten that it was not intended, nor has it ever been intended, as extending an aid to one, who in fact is guilty, so that he may escape just punishment. The rule is but a humane provision of the law, intended to prevent, so far as human agencies can, the conviction of an innocent defendant, but absolutely nothing more."

The statement that the presumption of innocence "was not intended, nor has it ever been intended, as extending an aid to one, who in fact is guilty, so that he may escape just punishment," is not a correct statement of the law. The presumption of innocence applies alike to the guilty and to the innocent, and the burden rests upon the Government throughout the trial to establish, by proof beyond a reasonable doubt, the guilt of the accused. Until guilt is established by such proof, the defendant is shielded by the presumption of innocence. The fact of guilt does not enter into the application of the rule, the intent and purpose of which is to protect all persons coming before the courts charged with crime until the presumption of innocence is overthrown by evidence establishing guilt beyond a reasonable doubt; and, where the evidence is purely circumstantial, to the exclusion of every reasonable hypothesis of innocence.

After the jury had deliberated for several hours, it informed the court that further instructions were desired. Thereupon, the jury was returned into open court. The foreman then stated that the questions on which further instructions were desired had been reduced to writing and asked the court whether or not he should read them. The trial judge had the written questions delivered to him without same being read, and after he read them he gave the jury a supplemental charge. Neither the defendants nor their counsel were informed of the nature of these questions; consequently, no opportunity was afforded to them to request a supplemental charge with reference thereto, or to question the correctness of the charge as given. These written questions are not in the record. The content of one of the questions may be gathered from the supplemental charge; the content of the others may not be ascertained with certainty.

Defendants were entitled to be apprised of the nature of these questions and were entitled to an opportunity to be heard in connection therewith. When the foreman asked whether or not he should read aloud the questions as written, he should have been permitted to do so; thus, the court, the Government, and the defendants would have been apprised of the nature of the questions and of the matters with reference to which the jury desired further instructions. To pursue a course which prevented this was error.¹

This brings us to the third assignment of error, namely, undue participation of the court in the trial. A fair and impartial trial is guaranteed to every defendant, and fundamentally means a trial before an impartial judge and by an impartial jury. In aid of truth and in furtherance of justice, the court may question a witness, — in fact, he may call and question a witness not used by either party,² — but in so doing the court should be careful to preserve an attitude of impartiality and guard against giving the jury any impression that the court was of the opinion that defendant was guilty. The opinion of the judge, on account of his position and the respect and confidence reposed in him and in his learning and assumed impartiality, is likely to have great weight with the jury, and such fact of necessity requires impartial conduct on his part. We have had occasion heretofore to comment upon the conduct of the trial judge in taking over and examining witnesses under examination by respective counsel, and his comments in the presence and hearing of the jury. In Adler v. United States, 5 Cir., 182 F. 464, 472, we said:

"* * * The impartiality of the judge — his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy which is required by the conflict of the evidence to be finally submitted to the jury — is a fundamental and essential rule of especial importance in criminal cases. The importance and power of his office, and the theory and rule requiring impartial conduct on his part, make his slightest action of great weight with the jury. While we are of opinion that the judge is permitted to take part impartially in the examination or cross-examination of witnesses, we can readily see that, if he takes upon himself the burden of the cross-examination of defendant's witnesses, when the government is represented by competent attorneys, and conducts the examination in a manner hostile to the defendant and the witnesses, the impression would probably be produced on the minds of the jury that the judge was of the fixed opinion that the defendant was guilty and should be convicted. This would not be fair to the defendant, for he is entitled to the benefit of the presumption of innocence by both judge and jury till his guilt is proved. If the jury is inadvertently led to believe that the judge does not regard the presumption, they may also disregard it.

"A cross-examination that would be unobjectionable when conducted by the prosecuting attorney might unduly prejudice the defendant when it is conducted by the trial judge. Besides, the defendant's counsel is placed at a disadvantage, as they might hesitate to make objections and reserve exceptions to the judge's...