Sherman v. United States.

• Decision Date: 16 March 1944
• Docket Number: Nos. 150-153.,s. 150-153.
• Parties: SHERMAN v. UNITED STATES.
• Court: D.C. Court of Appeals

36 A.2d 556

SHERMAN

v.UNITED STATES.

Nos. 150-153.

Municipal Court of Appeals for the District of Columbia.

March 16, 1944.

Appeal from Municipal Court for the District of Columbia, Criminal Division.

Henry Sherman was convicted of a violation of the maximum ceiling price for potatoes established by the Administrator of the Office of Price Administration under the Emergency Price Control Act, and he appeals.

Affirmed.

CAYTON, Associate Judge, dissenting.

J. E. Bindeman, of Washington, D. C., for appellant.

John P. Burke, Asst. U.S. Atty., of Washington, D.C. (Edward M. Curran, U.S. Atty., Cecil R. Heflin, Asst. U.S. Atty., and John L. Laskey, District Enforcement Atty., Office of Price Administration, all of Washington, D.C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

RICHARDSON, Chief Judge.

Four informations were filed, each charging defendant with a separate violation of the maximum ceiling price for potatoes established by the Administrator of the Office of Price Administration under Section 2 of the Emergency Price Control Act of January 30, 1942. ¹ It was alleged that the sales were knowingly, willfully and unlawfully made by defendant of an aggregate of 1100 pounds of potatoes at $.07 1/2 per pound, a rate in excess of the maximum ceiling price of $.054 per pound.

After a jury trial defendant was found guilty as charged.

A motion for new trial was denied and sentence imposed in each case. Appeals were taken and the cases were consolidated for hearing in this court.

Numerous errors have been assigned, requiring consideration of voluminous evidence. This we summarize briefly in the sequence of events.

Defendant claimed to have been engaged exclusively in the wholesale vegetable business, operating one truck, purchasing at wholesale from local markets and elsewhere, and selling to retail stores and purchases. He had no place of business other than his home and his truck. He was unable to estimate the volume of his business and only made trips with his truck when he felt like working.

Defendant's wife, it was claimed, owned and operated a retail store for the sale of vegetables, meats and groceries. She purchased her vegetables from defendant at a profit to him. Her meats were purchased for her by defendant and delivered in his truck, for which service he made no charge.

Defendant and his wife testified that on Monday, May 17, 1943, they discussed the matter of securing potatoes. She telephoned the Office of Price Administration and talked to one Stanton. She testified that she told him she could purchase potatoes for a price between $5.50 and $6.00 per hundred pounds, and asked what her retail price would be; that he told her it would be $.07 1/2 per pound. Stanton testified that he had no recollection of her inquiry; that she may or may not have called as there were many inquiries by telephone, but that he could not have given the retail price on potatoes without knowing the class of store, the cost of potatoes to the wholesaler, and the place where the latter were purchased, which would determine the freight rate, an essential element in ascertaining the ceiling price.

Defendant testified that on the following morning, Tuesday, he left in his truck, with his sixteen year old son, with the object of purchasing a load of potatoes. About 2 o'clock that night, he stopped for gasoline at a place in South Carolina, the name of which he did not know. A man with a truck load of potatoes in one hundred pound sacks drove up and this man offered to sell the potatoes for $3.50 per sack. Defendant purchased the entire lot, two hundred sacks, for $700, paying cash and taking no receipt. Defendant testified that he did not know the identity or the name of the man, had never seen him before, did not know where the potatoes came from except that he was told they came from Edisto Island, South Carolina, which was about sixty-five miles from the place where he made the purchase.

During that night the potatoes were transferred from one truck to the other, and in the morning defendant started on his return to Washington, arriving and parking his truck in front of his wife's store Friday morning at about 10:30.

At about 11:30 one Miller, an inspector for the local branch of the Office of Price Administration, saw the truck in front of the store. He stopped and inquired of defendant whose truck it was and was told that it belonged to defendant. He asked whose potatoes they were and defendant answered that they were his. He then asked at what price they were being sold and defendant's wife said: ‘at 7 1/2¢ per pound.’ Miller told them to stop selling until he could determine the proper price. It was admitted that sales at $.07 1/2 had been made, but from the inspector's arrival until approximately one o'clock no further sales were made.

Miller testified that he was told by defendant that he had paid $3.50 per hundred pounds but had no receipt, and that he said to him that he would have to accept his statement in computing the selling price. It was undisputed that he had several conversations with defendant's wife between the time of his arrival and one o'clock, and that she claimed that she had purchased the potatoes from her husband for $5.50 per hundred pounds; that she had given defendant $1100 in cash; and that she was entitled to sell at retail for $.07 1/2 per pound, and had been so advised by Mr. Stanton.

Miller testified that he figured the proper price after telephoning and ascertaining the freight from Edisto Island to Washington, D.C., and that this, plus the stated cost of $3.50 per hundred, plus the one-third mark-up allowed under the regulation, made the maximum ceiling price of $5.40.

A number of customers were waiting to purchase potatoes. Defendant's wife testified that at one o'clock, after Miller had again telephoned, she asked him whether she could sell the potatoes and he said she could; that she asked him at what price and that he said $.07 1/2. This was denied by Miller who testified that he said the price was to be $5.40. There was other testimony on the subject but, as it was for the jury to determine what was said, it need not be considered. Immediately following this telephone call and discussion, sales of potatoes were made, those on which the charges were based being from the parked truck in one hundred pound sacks. One sale of one hundred pounds was made by defendant. Whether the remaining three sales covered by the charges were made by defendant personally or by his son was disputed. All sales were made at the $7.50 rate.

While these sales were occurring, the inspector listed the names, automobile license numbers, and the amount sold to each of the four purchasers. Defendant's wife testified that she noticed the inspector outside taking notes; that she asked him what he was doing and whether he intended to make trouble. He said he did not and she then said to him-‘If we are going to have any trouble I would rather take my potatoes and dump them, dump them out, because I am not looking for any trouble.’ The inspector did not recall such a statement.

Defendant introduced evidence to show that the store was operated by Mrs. Sherman; that she was in active charge of it, employing one assistant, a colored girl. The licenses and other documents indicating ownership were in her name. She testified that she had a bank account and kept her own books, and while her husband purchased the meat for her without compensation and spent a little time helping in the store, he had no interest in it. She purchased her vegetables from him.

Defendant was cross-examined in regard to his wholesale business. He said that he had no other business, and operated but the one truck; that he supported his wife, and employed his sixteen year old son, paying him a salary of $35 per week. He also stated that he had paid him $50, in addition to his salary, for making the trip on which these potatoes were purchased, and paid the expenses of the trip. He stated that while he kept books he did not enter cash purchases. At one point he testified that he did not enter sales where purchases were for cash, but later stated the reverse. He kept no bank account. He testified that when his wife paid him the $1100 for the potatoes he did not make a record of it; that no receipt was given; that it was paid in cash and he put the money in his pocket. Defendant admitted that there was no entry of the transaction of purchase or sale in his books. He stated that he did not make entries in his books, but that this was done by a man whose name he could not recall. He said there were several books and when he was asked if he could get them, said that they were at home and he could not get them at the time. When asked if he could get them if he was excused he said that they were kept at several places and he would have to look for them. He could not recall the extent of his business when questioned about the amount of monthly or yearly gross business. He stated that he did file a separate income tax return with the Federal Government and with the District Government, but could not recall any amounts.

We have recited a part only of his evidence which throughout his cross-examination was in many respects evasive and implausible.

There was undisputed evidence that, conceding the potatoes were purchased at Edisto Island for $3.50 per hundred pounds, the maximum price defendant could charge was $5.40 per hundred; and that if there was a resale by defendant to his wife at $5.50, the maximum ceiling price on sales by her would be $7.34 per hundred.

The court charged the jury, in effect, that there were two theories upon which the prosecution relied: First, that the potatoes were the property of the defendant when the sales complained of were made. If they so found, it was for them to decide whether defendant, or others in his behalf, sold them in excess of the ceiling price;...