United States v. Renda

• Decision Date: 07 March 1932
• Docket Number: No. 249.,249.
• Citation: 56 F.2d 601
• Parties: UNITED STATES v. RENDA et al.
• Court: U.S. Court of Appeals — Second Circuit

56 F.2d 601 (1932)

UNITED STATES v. RENDA et al.

No. 249.

Circuit Court of Appeals, Second Circuit.

March 7, 1932.

Samuel M. Fleischman, of Buffalo, N. Y., for appellant Renda.

Leo J. Hagerty and Stephen L. Verdi, both of Buffalo, N. Y. (Frank Floriano, of Buffalo, N. Y., on the brief), for appellant D'Agostino.

Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Justin C. Morgan, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for the United States.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

PER CURIAM.

The only evidence against D'Agostino was that one of the conspirators, De Franco, was heard to call some one on the telephone and ask if "Dominick D'Agostino" was speaking. Apparently receiving an affirmative answer, De Franco then asked the listener to bring "ten pieces," which concededly referred to morphine, in which the conspirators were dealing. The telephone number called was registered under D'Agostino's name in the telephone book. The evidence was of course hearsay, for the identity of the person called depended upon De Franco's implied recognition of D'Agostino's voice, whom he knew. The theory of its admission apparently was that, since De Franco was abundantly shown to be acting in criminal concert with the defendants other than D'Agostino, any admission of his was competent against all who had been indicted. The error is, however, apparent. The declarations of one party to a concerted mutual venture are admitted against the rest on the notion that they are acts in its execution. Hitchman C. & C. Co. v. Mitchell, 245 U. S. 229, 249, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461; Conn. Mut. L. Ins. Co. v. Hillman, 188 U. S. 208, 23 S. Ct. 294, 47 L. Ed. 446; Van Riper v. U. S., 13 F.(2d) 961, 967 (C. C. A. 2). In so far as they are such, they are authorized by all, and are treated as their admissions. However, obviously the declaration cannot prove the authority any more than that of an agent. The party to be implicated must be shown independently to be in fact a party to the venture; else there is no authority to act for him. Before De Franco's declaration, itself only implied from his conduct, could become competent against D'Agostino, D'Agostino must therefore have been otherwise shown to be acting in concert with De Franco, and that concert such that the declaration was apt to its execution. As nothing of the sort was shown, the case against him failed.

The evidence against the defendant Renda was adequate except for the character of the witness O'Shea. He was an accomplice, a morphine addict, and otherwise shown to be wholly devoid of credibility. Moreover, on the only occasions when he could be corroborated by other witnesses of the prosecution they contradicted what he said about Renda. His credibility was tenuous to the last degree. The accepted canon in such cases is that, when the evidence is substantial, the verdict is final. Humes v. U. S., 170 U. S. 210, 18 S. Ct. 602, 42 L. Ed. 1011; Burton v. U. S., 202 U. S. 344, 373, 26 S. Ct. 688, 50 L....