Leyer v. United States

• Decision Date: 14 November 1910
• Docket Number: 53.
• Citation: 183 F. 102
• Parties: LEYER v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

183 F. 102

LEYER v. UNITED STATES.

No. 53.

United States Court of Appeals, Second Circuit.

November 14, 1910

J. E Finegan, for plaintiff in error.

William J. Youngs, U.S. Atty. (L. R. Bick, Asst. U.S. Atty., of counsel), for the United States.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

LACOMBE Circuit Judge.

The defendant was charged by indictment with having committed perjury in statements made by him under oath as to his property, upon executing a bail bond for one Vecchio, who was under indictment. The particular statement was his declaration that on June 23, 1909, the day he executed the bail bond, he was the 'owner in fee simple of the premises situate and known as No. 122 Grattan street, in the borough of Brooklyn, county of Kings; it being a plot of ground 100 by 25 feet, on which is erected a four-story double brick dwelling. ' The making of the sworn statement was proved by the introduction of the original, and is not disputed.

The prosecution, having proved the statement, put in evidence from the register's office of Kings county the record of a deed made by Otto Leyer and Mary Leyer to Ferdinand and Edwidna Leyer, dated May 13, 1909, and recorded July 20 1909, and, after some further testimony as to a search of the records in said office, rested its case. The deed purported to convey by metes and bounds two adjoining lots, each 25 by 100 feet, on the southerly side of Grattan street 25 feet east of Porter avenue. It did not give the street numbers of these two lots. Thereupon defendant's counsel moved the court to acquit the defendant, on the ground that the government had failed to establish that the defendant committed a crime. The motion was denied, and exception reserved.

The government's chain of proof at that stage of the case was defective in one important particular: It had proved that defendant had executed a deed of property on Grattan street on May 13, 1909, but had failed to prove that such deed had been delivered and the title to the property passed prior to the time (June 23, 1909) when defendant swore that he owned it. Since it had not been recorded until nearly a month later, it might fairly be inferred that it had not been delivered until after he made the affidavit on which indictment was founded. Defendant, however, did not stand upon his exception as it would seem he might safely have done, but proceeded to put in evidence in defense, calling several witnesses and himself taking the stand.

It is well-settled practice that an exception to a refusal to direct a verdict at the close of plaintiff's case is waived, if defendant thereafter proceeds to put in proof. The strength of the case for plaintiff must then be tested upon an examination of the entire record, made upon a new motion to direct a verdict when both sides have rested. Wilson v. Haley Live Stock Co., 153 U.S. 39, 14 Sup.Ct. 768, 38 L.Ed. 627.

We see no reason to repudiate this rule in criminal causes. If the whole record indicates that a verdict of guilty was justified, it is immaterial that evidence essential to conviction was voluntarily introduced by defendant himself. There is no force in the contention that the denial of the motion to direct acquittal at the close of the case for the prosecution 'would in effect shift the burden of proof and the defendant would be compelled to go forward and prove his innocence before the prosecution had succeeded in proving his guilt. ' Defendant was not compelled to go forward. If the prosecution failed to make out its case, he could quite safely rest upon his exception, knowing that, even if the jury should find a verdict against him on such incomplete proof, it would be promptly set...