Kassin v. United States, 8044.

• Citation: 87 F.2d 183
• Decision Date: 30 January 1937
• Docket Number: No. 8044.,8044.
• Parties: KASSIN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

87 F.2d 183 (1937)

KASSIN v. UNITED STATES.

No. 8044.

Circuit Court of Appeals, Fifth Circuit.

January 5, 1937.

Rehearing Denied January 30, 1937.

David Gertler and Ellis C. Irwin, both of New Orleans, La., and Francis L. Poor and H. M. Wise, both of Jacksonville, Fla., for appellant.

Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and Wm. A. Paisley, Asst. U. S. Atty., of Jacksonville, Fla.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant was jointly indicted with seven others, upon eighteen counts. One count charged conspiracy to misapply funds and falsify records of the Florida National Bank of Jacksonville. The other seventeen charged various particular misapplications and falsifications. When the indictment was called for trial against appellant, five of those named with him had already pleaded or been found guilty and sentenced. The other two had not been apprehended. The trial, therefore, proceeded against appellant alone. Convicted on all of the counts, and sentenced to serve ten years in the Atlanta Penitentiary, he appeals, insisting that the record is devoid of evidence tending to convict him, and that he should have had the directed verdict he moved for.

He assigns error, too, to this argument of the district attorney: "The Government of the United States is trying to convict this man, and on this undisputed evidence we are entitled to have twelve reasonable men believe he was a member of this gang and if it was the act of one it was the act of all. If he had any legitimate business down here, gentlemen, God knows we are entitled to have him explain to you twelve men here * * * not him — but by other witnesses."

Because we agree with appellant that the conviction may not stand for want of evidence, we find it unnecessary to decide whether the argument, unsound in law and in fact as it was, constituted prejudicial error.

It was of a piece with the whole theory of the prosecution, that proof that his codefendants were guilty; that, using assumed names, appellant had registered at hotels in Florida where some of his codefendants were registered; and that he had a safety deposit box in a bank where some of his codefendants had boxes, had put him upon proof of his innocence. This will not do. Wide-sweeping and damaging as is a charge of conspiracy, difficult as it is for one caught in the net of such a charge to extricate himself from it when the government has any evidence tending to connect him with it, such a charge, no less than charges of substantive offenses, requires proof. This proof may be circumstantial or direct, or both, but it must be proof. That is, the evidence must have a legitimate tendency to compel belief in and a finding of defendant's guilt. It may not consist merely of circumstances having such remote relation to the facts to be proved as that they have not a probable, but only a possible, relevancy. Circumstantial evidence can indeed forge a chain of guilt and draw it so tightly around an accused as almost to compel the inference of guilt as matter of law. Again, circumstantial evidence may forge the chain and draw it tight by legally justifiable, rather than absolutely compelling, inferences. In each case, however, where the evidence is purely circumstantial, the links in the chain must be clearly proven, and taken together must point not to the possibility or probability, but to the moral certainty of guilt. That is, the inferences which may reasonably be drawn from them as a whole must not only be consistent with guilt, but inconsistent with every reasonable hypothesis of innocence. Paddock v. United States (C. C.A.) 79 F.(2d) 872; De Luca v. United States (C.C.A.) 298 F. 412; Wright v. United States (C.C.A.) 227 F. 855, 857. This rule applies with the same force where conspiracy is the charge, as where substantive offenses are in question. Conspiracy does indeed widen the scope of relevant evidence through the operation of the principle of agency or representation by which all are made responsible for the acts of each of the partners in crime. This, however, is not a breakdown, it is merely an application of the rules of evidence. Conspiracy charges do not present opportunities for...