United States v. Di Matteo, 9665.

• Decision Date: 20 August 1948
• Docket Number: No. 9665.,9665.
• Citation: 169 F.2d 798
• Parties: UNITED STATES v. DI MATTEO.
• Court: U.S. Court of Appeals — Third Circuit

169 F.2d 798 (1948)

UNITED STATES v. DI MATTEO.

No. 9665.

Circuit Court of Appeals Third Circuit.

Argued June 24, 1948.

Decided August 20, 1948.

J. Harry Pershing, of Pittsburgh, Pa. (Adam B. Shaffer, of Pittsburgh, Pa., on the brief), for appellant.

W. Wendell Stanton, of Pittsburgh, Pa. (Owen M. Burns, U.S.Atty., of Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, McLAUGHLIN, and O'CONNELL, Circuit Judges.

BIGGS, Circuit Judge.

The defendant, Andrew J. DiMatteo, was charged in an indictment of two counts with having in his possession a $25 United States War Savings Bond, registered in the name of Cabeen and (First Count) with counterfeiting Cabeen's endorsement on the bond in order to cash it; and (Second Count) with cashing the bond, knowing the endorsement to be forged. See Section 29 of the Criminal Code, 18 U.S.C.A. § 73.

The proof in the case was simple and direct and, if believed by the jury, was quite sufficient to prove the guilt of the defendant on both counts. There was testimony to the effect that the defendant had access to the room and to the place where the bond was kept by Mrs. Cabeen in Cabeen's absence, that the defendant procured a prominent citizen of Uniontown to identify him as the owner of the bond to a bank,¹ that he forged Cabeen's endorsement on the bond, and that the bond was cashed at the bank. The charge of the court was clear and to the point as far as it went, but that it was deficient in one respect is demonstrated by the jury's actions and verdict.

After retiring to consider the verdict the jury became confused, sent a note to the learned trial judge,² and finally returned with the following verdict which was duly recorded: "And now, to wit, December 9, 1947, we the jurors impaneled in the above entitled case find Andrew J. DiMatteo guilty of forgery, recommend to the mercy of the Court, and not guilty of the theft of the bond." The trial judge immediately said to the jury: "Ladies and gentlemen of the jury, you sent a note down to me that indicates that you are trying to function — assume to yourselves the function of the Court. This Court has the duty of sentence. There is no case in which sentence is mandatory on the Court; it is not required to send anybody to prison by reason of it, because it can place him on probation. But I will say this to you: That this verdict is laughable to the Court because the one question — the one that you might reasonably have found him not guilty was in regard to passing that particular forged item; but the main testimony in the case — all of the testimony in the case, is to the effect that he had stolen the bond. So that, as I say, you are simply transposing the result, and you apparently are doing it in an attempt to assume the functions of the Court in regard to it, with which you have nothing whatsoever to do. You are sworn to well and truly try the issues of fact; and the issues of fact are whether or not he stole that bond³ and also whether he succeeded in forging it and securing the payment of it. Now, I confess that if I were counsel for the Government in these cases I would not allow any one of you to sit on the jury again. That, however, is only the opinion of the Court. You may now go to your jury room. I think you didn't understand this case at all, I will say that."⁴

The defendant moved in arrest of judgment and for a new trial. These motions make reference to the fact that the jury found the defendant, to quote the language of the verdict, "* * * not guilty of the theft of the bond". On January 19, 1948 the motions were denied and on January 20 the defendant was sentenced to imprisonment for a year and a day and to pay a fine of $1. Just prior to sentence the attorney for the United States stated to the court: "* * * to clarify the record, I would like to move that judgment be entered on the first count of the indictment, upon which this defendant was convicted and that the second count of the indictment be dismissed, the latter for the reason that the jury failed to return any verdict as to it." The court replied, "Of course, under those circumstances, as to that count, there could be no conviction in the future at any rate for it. However, the motion is granted."

The charge of the learned judge was insufficient in that he did not direct the jury to return a verdict on each count of the indictment. If he had done so it is conceivable that the jury would not have returned their verdict as an inaccurate and insufficient hotchpotch. The jury could have returned clear-cut verdicts on both counts. That portion of the verdict which states that the defendant was "not guilty of the theft of the bond" was irrelevant for he had not been indicted for stealing the bond. The desirability and even the necessity of requiring a jury to return a separate verdict on each count of an indictment was...