Rosen v. United States

• Citation: 271 F. 651
• Decision Date: 15 December 1920
• Docket Number: 62.
• Parties: ROSEN et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

271 F. 651

ROSEN et al. v. UNITED STATES.

No. 62.

United States Court of Appeals, Second Circuit.

December 15, 1920

This cause comes here on writ of error to the United States District Court for the Western District of New York.

The plaintiffs in error, who were defendants below, are hereinafter referred to as defendants.

The defendants were indicted together with Eugene Hanavan, Paul Vogel, Henry Weber, and Joseph Pfeiffer and were charged with the crime of receiving property stolen from a shipment of copper, knowing that the copper had been stolen. The crime was charged to have been committed at Buffalo, in the state of New York. The property consisted of 40,000 pounds of copper ingots which constituted a part of an interstate shipment of freight from the Calumet & Hecla Smelting Company at Hubbell, in the state of Michigan, to the Seymour Manufacturing Company at Seymour, Conn. At the time the copper was stolen it was in the custody and possession of the Erie Railroad Company, a common carrier of freight.

The defendants were indicted on July 29, 1919, and the trial was had at Canandaigua, N.Y., on September 15, 1919. The indictment contained a single count. The two Rosens were tried alone. At the trial Vogel, who was confined in the state prison at Auburn, having been convicted of another offense of a somewhat similar character, was examined as a witness on behalf of the government, having been brought from Auburn for the purpose under a writ of habeas corpus. Weber pleaded guilty to the indictment and was also sworn as a witness for the government. The two Rosens took the stand and testified on their own behalf.

The jury returned a verdict on September 17, 1919, finding the defendants Rosen guilty as charged.

Aaron Fybush, of Buffalo, N.Y. (Frank C. Ferguson, of Buffalo N.Y., of counsel), for plaintiffs in error.

Stephen T. Lockwood, U.S. Atty., and John T. Walsh, Sp. Asst. U.S Atty., both of Buffalo, N.Y. (Carl Sherman, Asst. U.S. Atty of Buffalo, N.Y., on the brief), for the United States.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

Before looking into the facts of this case upon the merits, we shall dispose of a preliminary matter of consequence to the court, the parties, and their counsel.

We have been presented with what is entitled 'bill of exceptions.' It contains all the testimony taken at the trial, all that was said between court and counsel, the whole of the argument to the jury on behalf of the government, covering some 20 printed pages (although exception was taken to only two sentences covering some 6 or 7 lines), the whole of the charge (to which one exception was taken), and various other matters. It is followed by a 'stipulation' signed by the attorneys for both parties. This is followed by an 'order settling case' which states that--

'On the above stipulation the foregoing record * * * containing all of the evidence given and proceedings had upon the trial of this action is hereby ordered settled and placed on file in Erie county clerk's office.'

This is signed by the District Judge.

It is hardly necessary to say that this is not a bill of exceptions. In Linn v. United States, 251 F. 476, 483, 163 C.C.A. 470, this court stated what constitutes a bill of exceptions, and we declared that in that case the bill should have never been signed by the trial judge, and that the court would not be subject to just criticism if we declined to consider the errors assigned. In Fraina v. United States, 255 F. 28, 166 C.C.A. 356, we again spoke plainly on this subject, and said:

'There is no bill of exceptions. Both parties have agreed to call what is probably a transcript of the stenographer's minutes by that name; but giving it the requisite name does not make it the lawful thing. The consent was worthless, and it is of grace only that we consider the points argued.'

The Linn Case was referred to approvingly. In Buessel v. United States, 258 F. 811, 170 C.C.A. 105, we declared that the parties are not at liberty to substitute a written stipulation or agreed statement of facts as to what occurred at the trial in lieu of a bill of exceptions. And it is only through a bill of exceptions duly authenticated as such that the rulings of a judge made at the trial become a part of the record to be reviewed. We take occasion to say once more that what we find in the present record is not a true bill of exceptions as such bills are understood in the federal courts, and that the practice of printing the whole of the stenographer's minutes, arguments and all, is, under the federal practice, a waste of a client's money, which is strongly disapproved. As has been said it 'is neither lawyerlike nor just to the court or to client. ' We have several times before pointed out that bills of exceptions are not governed by the rules of the state courts under the Conformity Act (Comp. St. Sec. 1537). Buessel v. United States, supra, and Rothman v. United States, 270 F. 31, decided at this term.

We shall go into this case more fully than the record required, and in doing so we wish it understood that this case is not to be regarded as a precedent binding this court to examine into assignments of errors where no exceptions have been reserved. In a proper case we may consider errors not excepted to and which are not assigned for error. But we do not understand that Congress in passing the act of February 26, 1919 (40 U.S.St.at L.pt. 1, c. 48, p. 1181 (Comp. St. Ann. Supp. 1919, Sec. 1246)), intended that cases could be reviewed in the appellate courts without regard to the taking of exceptions and the usual assignments of error. Whatever that act may mean, it certainly was not intended, among other things, to relieve counsel from the necessity of calling the attention of a trial judge to his mistake at the time an erroneous instruction or ruling is given in order that he may correct it then and there and avoid the necessity of setting a verdict aside and securing a new trial if a conviction improperly follows. This court has recently said in Storgard v. France & Canada S.S. Corporation (C.C.A.) 263 F. 545, 546, in reference to the act of Congress now under consideration:

'We do not construe the section as authorizing appellate courts to decide on the whole record whether exceptions have been taken or not. The mischief it was intended to correct is just the opposite of overlooking defects due to negligence, ignorance, or inadvertence, viz. the reversal of judgments because of errors, defects, or exceptions which, though raised with technical accuracy, do not affect substantial rights.'

And also see Goldfarb v. Keener (C.C.A.) 263 F. 357.

The defendants Rosen have been convicted of the crime of receiving property stolen from a shipment in interstate commerce knowing that the property had been stolen. They have been sentenced to imprisonment at hard labor-- Louis Rosen's term of imprisonment being for two years and Jacob Rosen's for three. They are described in the testimony as being engaged in the junk business. Vogel at the time the crime was committed was a clerk in the office of the Lehigh Valley Railroad Company and had charge of the making up of the grain sheets. At the time of the commission of the crime Weber had a coal yard adjoining the East Buffalo yards of the Lehigh Valley Railroad Company where he was engaged in the coal business. Vogel and Weber testified that the car containing the copper in question was put on the latter's siding, and that they, with Hanavan and Pfeiffer, unloaded it and buried the copper in Weber's coal yard, where it remained until Vogel told him that he had a customer for it, explaining that the Rosens wanted it. The Rosens came on the same day and wanted to get samples of the copper to send to Rochester to a prospective purchaser, and in the presence of the two Rosens samples were taken from the spot where the copper was buried and handed to them. The Rosens, a few days later, came into the yard, the copper was dug out of its place of concealment, and was, by their help, placed in the car. Then after the loading was finished Jacob Rosen said to Vogel that he was afraid to bill the car and asked Vogel to bill it, which Vogel refused to do. And it was finally agreed that Jacob should bill it out as scrap metal, and the copper was covered over with fenders upon Louis Rosen's suggestion, who stated it was a good thing to do to cover up the identity of the shipment. The bill of lading was signed by Louis Rosen. There is no question as to the good faith of the parties in Rochester to whom the copper was consigned. There was much other testimony, 13 witnesses testifying for the government and 10 for the defendants.

The indictment is based on an act of Congress passed February 13, 1913 (Comp. St. Sec. 8603). That act provides as follows:

'That whoever shall unlawfully break the seal of any railroad car containing interstate or foreign shipments of freight or express, or shall enter any such car with intent, in either case, to commit larceny therein; or whoever shall steal or unlawfully take, carry away, or conceal, or by fraud or deception obtain from any railroad car, station house, platform, depot, steamboat, vessel, or wharf, with intent to convert to his own use any goods or chattels moving as, or which are a part of or which constitute, an interstate or foreign shipment of freight or express, or shall buy, or receive, or have in his possession any such goods

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