Shields v. United States

• Decision Date: 14 February 1927
• Docket Number: No. 3512.,3512.
• Citation: 17 F.2d 66
• Parties: SHIELDS v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

17 F.2d 66 (1927)

SHIELDS v. UNITED STATES.

No. 3512.

Circuit Court of Appeals, Third Circuit.

January 11, 1927.

Rehearing Denied February 14, 1927.

Percy Allen Rose, of Johnstown, Pa., and Max V. Schoonmaker, of Pittsburgh, Pa., for plaintiff in error.

John D. Meyer, U. S. Atty., and Joseph A. Richardson, Asst. U. S. Atty., both of Pittsburgh, Pa.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

In the court below, Daniel J. Shields, Milan Dicklick, Julius Rothstein, William Holzmann, and a number of other persons were jointly indicted for violation of the National Prohibition Act (Comp. St. § 10138¼ et seq.). Before the trial, Dicklick pleaded nolo contendere and was sentenced. See Hudson v. United States (C. C. A.) 9 F.(2d) 825; Id., 47 S. Ct. 127, 71 L. Ed. ___. Subsequently Rothstein, Holzmann, Shields, and sundry other defendants went to trial, and, confining our attention to his case, Shields was found guilty, was sentenced, and thereafter sued out this writ of error.

After due consideration we now hold, for the reasons we now state, that no error was committed, and therefore that the judgment of the court below be affirmed as to him. The alleged errors arise in this way:

At the trial Shields himself went on the stand and testified in his own behalf. He called as a witness in his behalf Dicklick, who had theretofore pleaded nolo contendere to the same joint offense with which Shields was being tried, and the government called in its behalf Rothstein and Holzmann, who stood in the same general situation as Dicklick; that is, they also had admitted their guilty participation in the same joint offense with which Shields was being tried. In charging the jury, the trial judge, in outlining the connection of Rothstein and Holzmann with the offense charged against Shields, said:

"The government called the defendant Rothstein, who told about Daniel Shields selling the brewery, and what occurred at the meeting at the office in the Capital Building, when Schuller, Simler, Widman, and Gastman were present, where it was agreed that there should be paid $50,000, and $25,000 was paid. And Rothstein testified further to the agreement after Shields insisted upon $13 a barrel for protection; he said that that conversation, as we recall it, occurred in a room adjoining the one in which the other parties were. And Holzmann corroborates this same thing. Rothstein testified, as the result of that, he paid to Shields the sum of $80,521 as protection money."

As to Dicklick's connection the judge said:

"Milan Dicklick was called to the witness stand and told us of his connection with this enterprise, and he said that no $13 arrangement was made; that they agreed to buy the brewery for $50,000, that they met at this office, that $25,000 was paid in currency at that time, and, as we recall it, he said that Simler furnished the paper to wrap up the money, but that nothing was said by Shields about requiring a tribute of $13 a barrel for the beer that was produced."

Then, after stating that "Shields himself took the witness stand in his own behalf, and absolutely denied any connection with this enterprise other than as a friend of the parties engaged," he went on to say:

"There is a sharp dispute in testimony between Shields, Rothstein, Widman, Holzmann, and Dicklick, as to the $13 payment. We cannot tell you which one of the witnesses to believe. That is your province. You may say where the truth of the matter lies. You have a right to determine, from their appearance on the witness stand, their interest in this enterprise, what is the correct state of affairs — who is telling the truth."

Conceding, as he must, that this statement of the issue and the testimony was fair, the defendant, Shields, contends the court committed an error in using the language quoted below. It will be recalled that Dicklick, who had confessed his guilt, when called as a witness by Shields, had confirmed Shields' testimony that he was innocent, and that Holzmann and Rothstein, who were on trial and in their testimony confessed their guilt, were called by the government, contradicted Shields, and swore they had paid Shields $80,000 for protection money. Bearing on the testimony of all three self-confessed participants in the conspiracy charged, the court then said — and herein is the alleged error:

"Now, in considering the testimony of Julius Rothstein and William Holzmann, you will have to scrutinize that testimony carefully. They are self-confessed violators of the law, and the rule is that testimony of that kind must be carefully scrutinized. Upon that testimony alone you can find a verdict, even, if you believe it; but it should be carefully scrutinized by the jury. The same thing may be said in regard to the testimony of Milan Dicklick, who was called as a witness on behalf of the defendants. He entered a plea of guilty in this case, and was a party to the violation of the law. His testimony ought to be scrutinized with the same degree of care that you are called upon to scrutinize the testimony of Julius Rothstein and William Holzmann, the witnesses offered by the government in this particular matter."

And the alleged error is in the court's putting the testimony of all three men on a parity. Confessedly, all three were in like situations as self-confessed violators of the law, etc. Their several interests in telling or concealing the truth might be different, and might or might not affect their credibility with the jury; but, in view of their admitted guilt, was there error in the court's cautioning the jury that, as self-confessed violators of the law, "that testimony of that kind must be carefully scrutinized"? Assuredly, as far as Rothstein's and Holzmann's testimony was concerned, this instruction was right, and indeed Shields was...