United States v. Mascuch, 320.
| Decision Date | 06 May 1940 |
| Docket Number | No. 320.,320. |
| Parties | UNITED STATES v. MASCUCH. |
| Court | U.S. Court of Appeals — Second Circuit |
Frank L. Miller, of New York City, (George Z. Medalie, Louis Haimoff, and Max Lazarus, all of New York City, of counsel), for appellant.
John T. Cahill, U. S. Atty., of New York City (Robert L. Werner and Frank H. Gordon, Asst. U. S. Attys., both of New York City, of counsel), for appellee.
Before SWAN, CHASE, and PATTERSON, Circuit Judges.
The appellant was convicted of violating the federal statute against perjury, 18 U.S.C.A. § 231, by giving false testimony during his examination under oath in an investigation conducted by the Securities and Exchange Commission. On each of the two counts of the indictment the sentence imposed was imprisonment for two years and a fine of $2,000, the prison sentences to run concurrently.
Each count contained several assignments of perjury and the jury was instructed that to sustain a verdict of guilt on either count they need only be satisfied as to one of the specifications of perjury alleged in that count; that they should consider all the assignments but should return a separate verdict only as to each count. Upon this appeal the defendant argues that in each count one or more of the assignments of perjury were not supported by the evidence, and if any assignment in either count was improperly submitted to the jury the verdict on that count cannot stand since it is impossible to determine on which assignment the defendant's guilt was predicated.
This argument was not presented to the trial court and, strictly, is not available to the appellant here. Trial errors will not ordinarily be reviewed on appeal unless called to the trial judge's attention in order to afford an opportunity for timely correction. The appellant failed to ask the trial court to withdraw from the jury any specific assignment of perjury. Where such restricted submission is desired, it must be requested and refused to be available as an error to be urged on appeal. See United States v. Dilliard, 2 Cir., 101 F.2d 829, 833, certiorari denied 306 U.S. 635, 59 S.Ct. 484, 83 L.Ed. 1036; Claassen v. United States, 142 U.S. 140, 147, 12 S. Ct. 169, 35 L.Ed. 966. At the close of the government's case, and again at the close of all the evidence, the defendant moved for a directed verdict on each count. In arguing the motion it was urged that none of the assignments was proved, but we do not regard the motion as equivalent to a motion to...
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