United States v. Freundlich, 196.

• Decision Date: 14 March 1938
• Docket Number: No. 196.,196.
• Citation: 95 F.2d 376
• Parties: UNITED STATES v. FREUNDLICH.
• Court: U.S. Court of Appeals — Second Circuit

95 F.2d 376 (1938)

UNITED STATES v. FREUNDLICH.

No. 196.

Circuit Court of Appeals, Second Circuit.

March 14, 1938.

COPYRIGHT MATERIAL OMITTED

Kaufman & Weitzner, of New York City (Samuel H. Kaufman, Harry G. Herman, and Milton S. Gould, all of New York City, of counsel), for appellant.

Lamar Hardy, U. S. Atty., of New York City (John J. Dowling and Frederick Backer, Sp. Asst. U. S. Atty., both of New York City, of counsel), for the United States.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a conviction for perjury committed before a special master in equity. The defendant had been sued for infringement of the copyright in a doll; an interlocutory decree passed against him, enjoining future sales, and referring the cause to a special master to compute damages and profits. The defendant stated his account, charging himself with the sale of 676 of the infringing dolls; a figure which he also supported by his testimony before the master. The master found that he had made 1,108 dolls, and fixed damages at the limit — $5,000 — on the basis of an assessment of $5 for every doll. The judge referred the case to the district attorney for prosecution, and the indictment resulted on which the defendant was convicted. On the trial enough evidence was introduced to sustain the verdict, and the only questions raised concern the admission and rejection of evidence during the trial, and its conduct otherwise. The first three counts charged the defendant with swearing falsely that he had never made more than 676 dolls; that his account submitted in the suit so declaring, was true; and that he had no dolls left in his possession after the day of the last sale listed in the account. The fourth count charged the perjurious denial of a sale of the dolls to three persons named Slott.

The first supposed error relates to the testimony of a man named Peckman, a former employee of Freundlich's. Peckman had had an interview with one of the attorneys for the plaintiff in the equity suit, to whom he had given an affidavit that 24,000 of the infringing dolls had been made. Apparently troubled about this estimate, he went to Freundlich and told him what he had done. Freundlich said that his recollection was wrong, and they went over some records together; after which at Freundlich's instance Peckman swore to another affidavit repudiating the first, and saying that it was impossible for him to say "with the slightest accuracy" how many dolls had been shipped; though he told Freundlich that he thought his estimate of only 600 dolls was wrong. When called to the stand, the prosecution brought out these facts just as we have recited them, not prefacing them with any direct inquiry. After Peckman had said that he had no recollection of the number of dolls made, except that there had been one order of three gross, the question was put to him whether he had not testified before the grand jury that the number was between 2,000 and 10,000. To this he answered yes. The defense repeatedly objected to this testimony throughout, and was overruled; but later the judge told the jury to disabuse their minds of the affidavits and of the answer before the grand jury. This is the first error assigned.

Freundlich's interview with Peckman was competent against him as it stood, and Peckman's first affidavit — or at least its substance — was a necessary part of it. There could have been no question as to this had they talked about Peckman's prospective testimony on the perjury trial. If the proper interpretation of the interview was that Freundlich was trying to influence Peckman's testimony regardless of the truth, it is of course well settled that that was evidence of guilt. Wilson v. United States, 162 U.S. 613, 620, 621, 16 S.Ct. 895, 40 L.Ed. 1090; Wallace v. United States, 7 Cir., 243 F. 300; Wigmore on Evidence, §§ 277, 278. If on the other hand he was merely trying to bring Peckman's memory into accord with what he himself believed to be true, the testimony did no harm, though it was not relevant. Between these two possibilities the jury alone could choose; for it is seldom, if ever, that a party can escape scrutiny of transactions with witnesses as to what they will say. Nor did it make any difference that the interview related to testimony to be given, not on the trial of the indictment, but on the suit. The issue on the trial was whether what Freundlich had said on the suit was false; that is, whether he had made more than 676 dolls. Any conduct of his justifying the inference on the suit that he had made more than that number, equally justified the same inference on the trial; the fact that in the one case he was trying to escape civil, and in the other criminal, liability does not affect the validity of the conclusion.

The admission of Peckman's answer before the grand jury stands on another footing. We have recently said that such use of earlier testimony may amount in reality to its substitution for the witness's upon the stand, and that, while the hearsay rule remains, the error may be enough for reversal. United States v. Block, 2 Cir., 88 F.2d 618. But a witness, whose past equivocations disclose an unwillingness to speak the truth, may be prodded by his earlier declarations, even though incidentally they will to some extent get before the jury. Di Carlo v. United States, 2 Cir., 6 F.2d 364. There is always a chance that his answers may betray not only that he said what the minutes report, but that it was true. As is true of most that takes place in a trial, the right result is a matter of degree, and depends upon the sense of measure of the judge. Perhaps it was safer to have told the jury to disregard this answer; but we cannot think that, considering the vacillation of this witness, it would have been an error to let it stand.

The next complaint is the admission of the testimony of one, Heppe, that he had bought Freundlich's "Kiki"...