Kreiner v. United States, 229.

• Decision Date: 08 March 1926
• Docket Number: No. 229.,229.
• Citation: 11 F.2d 722
• Parties: KREINER v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

11 F.2d 722 (1926)

KREINER v. UNITED STATES.^*

No. 229.

Circuit Court of Appeals, Second Circuit.

March 8, 1926.

Griffiths & Content, of New York City (Charles H. Griffiths, Harold A. Content, and Clarence V. Opper, all of New York City, of counsel), for plaintiff in error.

Emory R. Buckner, U. S. Atty., of New York City (Ben Herzberg, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge.

The defendant below was indicted for a violation of section 215 of the United States Criminal Code (Comp. St. § 10385), in that he had used the mails in an attempt to defraud by mailing a false financial statement to creditors. The indictment contained three counts, which were alike, except a different creditor was named in each count. The jury brought in a verdict of guilty with a recommendation of mercy. The defendant was sentenced to imprisonment in the United States penitentiary at Atlanta, Ga., for one year and one day on each count to run concurrently.

There are three assignments of error: (1) That the court erred in denying a motion, made on defendant's behalf at the end of the government's case, to dismiss the indictment and for a direction of a verdict in defendant's favor; (2) in denying the motion, made at the end of the entire case, to dismiss the indictment as against the defendant, and for a direction of a verdict of not guilty; (3) in refusing to charge the jury "in substance or effect" that evidence of good character and reputation may of itself raise a reasonable doubt as to the guilt of the defendant.

The first two assignments appear not to have been relied upon, and the argument in this court was restricted to the third assignment of error; and it is to that we shall direct our attention. In doing so we may say that we see nothing in this case to justify the first and second assignments of error.

Before passing to a consideration of the case upon the merits, we may refer to a matter of erroneous procedure, which, as it happens, is not fatal, but which under other circumstances might easily have made it our duty to dismiss the case.

The case was tried before Judge William R. Smith, a District Judge for the Western district of Texas, who at the time of the trial had been designated by the Chief Justice to sit in the Southern district of New York. The trial began on June 26, 1924. The verdict was rendered on June 30, 1924, and sentence was imposed on July 2, 1924. After the trial was concluded, Judge Smith returned to his home in Texas. The bill of exceptions was not settled by Judge Smith, but by one of the District Judges resident in the Southern district of New York, and this he did on October 26, 1925; and in settling the bill and ordering it on file no explanation is made in the certificate he signed of how it happens that the bill is signed by him, and not by the judge who tried the case, and whose duty it was to sign the bill.

In this connection we call attention to the decision of this court in Ulmer v. United States, 266 F. 176, in which it was held that a bill of exceptions is to be signed by the judge who presides at the trial, except as may be provided otherwise by statute. The Act of June 5, 1900, c. 717, § 1 (Comp. Stat. § 1590), sets forth the circumstances under which another judge of the court in which the case is tried may sign the bill of exceptions. It authorizes the judge who succeeds the one before whom the case was tried to sign the bill of exceptions, "if the trial judge is unable to do so by reason of death, sickness, or other disability." In the Ulmer Case we examined this matter at some length, and held that the absence of the trial judge from the district is not a "disability," within the provisions of the statute authorizing another judge to sign. We stated in the Ulmer Case that, where a bill of exceptions is signed by one who was not the trial judge, he should expressly state in his certificate the reason why he, and not the trial judge, allowed and signed the bill.

The certificate signed in this case omits the reason for the bill not being signed by the trial judge. This would compel us to decline to take jurisdiction of the case, if it were not for the fact that we may take judicial notice of the fact which appears in 300 F. vi, that Judge Smith died on August 16, 1924. In view of the death of Judge Smith, the statute gave a District Judge, resident in the Southern district of New York, authority to sign the bill of exceptions in a case not tried by himself. In Ulmer v. United States, 266 F. 176, 181, we said:

"It ought to be said, in any case, that where a bill of exceptions is signed by one who was not the trial judge, he should in doing so expressly state in his certificate the reason why he, and not the trial judge, allowed and signed the bill. Unless this is done, this court may not know by what right one who did not try the case came to allow the bill. In the present case the certificate of the judge does not give us any information whatever upon the subject."

And in Blisse v. United States, 263 F. 961, 967, commenting upon the signing of a bill of exceptions after the term had expired, we also said:

"Where a bill of exceptions is signed after the term at which the judgment is rendered, but within a period allowed by an order made within the term extending the time for its settlement, or by virtue of consent of parties duly given, it ought to contain an express statement to that effect, so that it may affirmatively appear that the signing and filing of the same were with due authority."

This brings us to another matter in this record, which should not be passed unnoticed. We find the following stipulation signed by the counsel on each side:

"It is hereby stipulated and agreed that, upon the argument of its appeal, in the above case, counsel for either party may submit to the court and use on said argument and physical exhibit and exhibits placed in evidence on the trial of this case."

No "physical exhibit" was in fact presented to us at the argument, nor attempted to be presented, and we are without any knowledge as to what was the nature of the "physical" exhibits to which this refers. But the parties cannot, by a mere stipulation signed by themselves, except in an admiralty suit, do what they attempted to do in this case. Fortunately they did not find it necessary to produce any exhibit of the character referred to in their stipulation. If they had attempted to do it, we should not have received or examined it. And in this connection we call attention to what this court said in Baldwin v. Abercrombie & Fitch Co., 228 F. 895, 901, 143 C. C. A. 293, 299. It was there said:

"Examination of the record shows that, subsequent to the time when allowance of appeal had brought the cause into this court, counsel entered into a stipulation that the prior art patents need not be printed in the record, but might be taken to this court as physical exhibits. To this stipulation they obtained the indorsement by a District Judge of the words, `So ordered.' Attention of the bar is called to the fact that this court is the one to determine whether or not exhibits marked in evidence in the trial court and sent up here shall or shall not be printed in the record upon which argument is to be had and decision to be asked for. The court is composed of three judges, who necessarily have to study the records on appeal, not in banc, but individually; they cannot do so properly and expeditiously, if there are only single copies of patents, which counsel think of sufficient importance to refer to in their briefs. It is most embarrassing, when one is considering an argument based on such reference, to have to suspend such consideration until he can, perhaps on some subsequent day, obtain the patent from one or the other of his associates. Hereafter the clerk of this court, whenever a stipulation such as this is found in any record filed here, will at once notify counsel that an approval by this court is necessary to its validity."

The defendant is an Austrian by birth and 33 years of age. He came to this country when he was about a year old, and was educated in New York, graduating from the academic department of the College of the City of New York. He then went into partnership with his father as a manufacturer of waists, carrying on the business at the beginning in rooms of the house in which he and his father resided. But the business appears to have prospered and expanded, and he testified that at one time he had a banking credit with the Bank of Manhattan as high as $200,000, and at one time he personally carried life insurance amounting to over $200,000, although at the time of the trial he had none.

The third assignment of error, hereinbefore set forth, relates to the refusal to charge the jury in the manner requested as to certain evidence of good character. This will now be considered. At the trial three character witnesses were called to testify for the defense. A justice of the Supreme Court of New York testified that he had known the defendant very intimately, and that he had known him for 20 or 25 years, "possibly more," and that he knew his family very well, and knew very many other people who knew him. Then he testified as follows:

"Q. Do you know other people, exclusive of his family, who know him? A. Very many.

"Q. Do you know his reputation in the community in which he lives and moves for truth and veracity? A. I do.

"Q. What is it? A. Very excellent."

A judge of the County Court of Bronx County, who had known the defendant for 10 years, and the members of his family and other people who knew him, testified that he knew his reputation for truth and veracity in the community in which he lived, and that it was "very good." And an attorney, who since the trial has become a justice of the Supreme Court of New York, testified that he knew the defendant very well and...