Schmeller v. United States

• Decision Date: 06 June 1944
• Docket Number: No. 9659-9661.,9659-9661.
• Citation: 143 F.2d 544
• Parties: SCHMELLER v. UNITED STATES (three cases).
• Court: U.S. Court of Appeals — Sixth Circuit

143 F.2d 544 (1944)

SCHMELLER v. UNITED STATES (three cases).

Nos. 9659-9661.

Circuit Court of Appeals, Sixth Circuit.

June 6, 1944.

COPYRIGHT MATERIAL OMITTED

Joseph B. Keenan, of Washington, D. C. and Gerard Pilliod, of Cleveland, Ohio, for appellant John L. Schmeller.

Parker Fulton, of Cleveland, Ohio, for appellants Frank I. Schmeller and Edward Schmeller.

Don C. Miller, of Cleveland, Ohio, for United States.

Before SIMONS, ALLEN, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

The appellants, together with numerous other officials and employees of the National Bronze and Aluminum Foundry Company (hereinafter called the Foundry Company) and the Foundry Company itself, were indicted for conspiracy to defraud the United States, in violation of § 88, Title 18, U.S.C., 18 U.S.C.A. § 88; for conspiracy to violate § 103, Title 50, U.S.C., 50 U.S. C.A. § 103, and for violating § 103, Title 50, U.S.C., 50 U.S.C.A. § 103, by making war material, that is aluminum castings, in a defective manner. The appellants were convicted solely on count III of the indictment, which contained nine counts. All other defendants were acquitted on all counts.

Appellants contend (1) that count III does not state a criminal offense, and (2) that there is no substantial evidence of guilt. In addition appellant John L. Schmeller contends that since count II was identical with count III except that it charged a conspiracy, acquittal on count II constitutes a bar to conviction on count III, and also contends that the court erred in its charge to the jury.

Late in 1940 or early in 1941 the Foundry Company, which had for many years been in the general foundry business and had made aluminum castings for airplanes used in World War I, agreed with the Packard Motor Car Company (hereinafter called Packard) to produce aluminum castings to be used in Rolls-Royce Merlin XX aircraft motors under contracts theretofore executed between Packard and the Governments of the United States and Great Britain. Under the contracts Packard was required to submit to the United States Army Air Corps and the British Government vandykes, specifications and test motors. Upon acceptance by the Army Air Corps the vandykes and specifications could not thereafter be changed without its consent. Packard drew up certain specifications, later accepted by the Army Air Corps, which included the terms and conditions under which the castings were to be produced, the specifications being embodied in purchase orders accepted by the Foundry Company. The castings were to be manufactured from an aluminum alloy designated as PM754, and the amended specifications which were in force during the period of this controversy contained the following clause: "Precautions: (a) Castings shall not be repaired by plugging, welding, or other methods without written permission from the purchaser."

Appellants Frank I. Schmeller, plant manager, and Edward Schmeller, assistant plant manager and metallurgist, were in direct charge of the operation of producing the castings. Owing to a violent quarrel between Drake, purchaser for Packard's aircraft division, and Frank Schmeller, Drake insisted at the outset that Helm, general superintendent of the Foundry Company and one of the codefendants below, be in complete charge of the Packard castings. Helm, however, had no authority either to select the method in which the castings should be made or to alter that method when selected. The men in the metal department were responsible to Frank Schmeller and Edward Schmeller, who were superior to Helm. Appellant John L. Schmeller, executive vice president, is not shown to have exercised any control over the foundry operation.

During the period in question some 50,000 aluminum parts, including superchargers, manifolds, cam covers, and oil pans or crank cases, were delivered to Packard by the Foundry Company, some three per cent or less of which were rejected because of foundry imperfections. In April, 1942, Drake was informed that certain castings delivered by the Foundry Company were welded, and protested against this about April 13, 1942, in a telephone conversation with Helm. April 16, 1942, a formal letter was sent to the Foundry Company, attention Mr. Helm, with copy to John L. Schmeller, notifying the appellants to cease the practice. Packard continued to receive welded castings, and Drake telephoned both Helm and John L. Schmeller several times, saying the welding would have to cease. Schmeller assured Drake that castings were not being welded. In June Drake wrote Helm that Packard could not use welded castings, and on June 17th he visited the Cleveland plant and stated to Helm that the practice of welding castings had to be stopped. Helm again stated that the Foundry Company was not welding castings. On June 24th Drake, together with Baker and Rodgers, Packard's chief inspector and assistant chief inspector respectively, visited the plant of the Foundry Company and repeated the warning against welding. Baker explained the danger which might be caused by the attempt to repair aluminum airplane castings by welding. He testified at the trial that welded castings, owing to fatigue from excessive vibration of the motor and the unusual stress and strain of its operation, might blow out and cause the plane to fall or the motor to catch fire and explode. John L. Schmeller assured Drake that castings were not being welded. In August, 1942, representatives of the Army Air Corps visited the Foundry plant and repeated the warning, but welded castings from the Foundry continued to be received by Packard.

Helm, after receiving the letter of protest sent April 16, 1942, by Drake, conferred with Edward and Frank Schmeller, who had received copies of the letter. It was decided to continue welding although it was to be limited to very small operations. As explained by Helm, they were to do "slight touch-up welding" in order to get out production. He said that they could not get out the castings without some welding. Later, early in June, 1942, it was decided to give Packard the definite impression that no welding was being done on Packard parts, and thereafter the welding was concealed in various ways. While formerly the operation had been conducted throughout the day, in July Frank Schmeller ordered a shift in hours so that the welding was done late at night or early in the morning. About this time Frank Schmeller upbraided a workman for welding in the usual hours, saying that he did not want that done "during the daytime." The office clerk was told at various times to notify some one in the welding department that "so-and-so was in the plant and to stop welding." Edward Schmeller, on occasions, notified him to contact the foremen and tell them that "certain officials are in the plant." On one occasion the doors were barricaded with barrels in order that the Packard officials might be kept out. It was ordered that whenever Packard inspectors were expected the welding room was to be cleared of castings or closed.

While the specifications provided that a test bar should be cast with each melt of castings, test bars were sent with the castings which had not been cast with the particular melt.

Each casting bore a heat number stamped on by the Foundry Company, which indicated the month, the day, and the pour in which the casting was made, and a serial number placed on it by Packard after delivery. When the rejected castings were received from Packard by the Foundry Company, in certain cases the heat number was peened off and a new number was stamped on. Orders were given that the repaired casting was to be cleaned and sandblasted so that the welding would not show, and in that condition it was returned to Packard. The concealment of the welding made it difficult for Packard to detect defects which sometimes might have been remedied prior to the final tests of the motor.

Count III of the indictment in its material portions charged that "John L. Schmeller, Frank I. Schmeller, Edward Schmeller, James C. Helm, Otto M. St. John, alias Al St. John, Robert W. Chrysler, Benjamin Prudenza and The National Bronze and Aluminum Foundry Company * * * the United States being then and there at war and the United Kingdom, hereinafter termed Great Britain, being then and there an associate nation of the United States in said war, with reason to believe that their act might injure, interfere with and obstruct the United States and its associate nation Great Britain in preparing for and carrying on said war, did knowingly, wilfully, unlawfully and feloniously make and cause to be made, in a defective manner, certain war material to wit: The said defendants caused a certain casting bearing part No. 600603, heat No. 4215 and serial No. E 260, to be welded at the National Bronze and Aluminum Foundry Company, which said casting was then and there being manufactured by the National Bronze and Aluminum Foundry Company for Packard Motor Car Company, to be furnished by Packard Motor Car Company to the United States and its associate nation Great Britain, the said casting being intended for, adapted to and suitable for the use of the United States and its associate nation Great Britain in connection with the conduct of said war, in violation of Section 103, Title 50, United States Code, 50 U.S.C.A. § 103; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States."

Appellants' contention that count III does not state an offense is based upon the proposition that the gist of the statutory crime is wilfully making or attempting to make war material in a defective manner. Count III alleges that an identified casting was made "in a defective manner" and that the appellants caused it "to be welded." Appellants therefore urge that the count does not set forth that the casting was made by welding in a faulty manner. It is contended that the indictment in effect charges that...