United States v. Schanerman, 8741.
Decision Date | 17 July 1945 |
Docket Number | No. 8741.,8741. |
Citation | 150 F.2d 941 |
Parties | UNITED STATES v. SCHANERMAN. |
Court | U.S. Court of Appeals — Third Circuit |
Harold Simandl, of Newark, N. J., for appellant.
Vincent E. Hull, of Newark, N. J. (Thorn Lord, U. S. Atty., of Newark, N. J., on the brief), for appellee.
Before MARTIN and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge.
Nathan A. Schanerman, a registrant with Local Board No. 31 of Essex County, New Jersey, was convicted by the verdict of a jury, and was fined $25 and sentenced to six months imprisonment for violation of section 39 of the Criminal Code, Title 18, section 91, U.S.C.A.1
The indictment charged that Schanerman wilfully, corruptly, unlawfully and feloniously offered and gave to John P. Finneran, who was then and there "acting for or on behalf of the United States in an official function" as a member of the Local Draft Board with which the defendant was registered pursuant to the Selective Training and Service Act, 50 U.S.C.A. Appendix, ß 301 et seq., a valuable case of whiskey in order to "induce, entice and persuade" Finneran, in violation of his lawful duty, to obtain and to aid and abet in obtaining a draft deferment for the defendant regardless of the merits of his claim to deferment.
On appeal to this court, Schanerman urges that the Government failed to prove the material allegations of the indictment or a crime under the statute, and that the district judge erred in refusing to direct a verdict of acquittal. His contention is that Finneran had no official function to perform pertaining to him for the reason that he had mistakenly registered with Local Board No. 31 for Essex County instead of with Local Board No. 32 which covered the area wherein appellant's residence was located. He seeks to buttress his position upon Kellerman v. United States, 3 Cir., 295 F. 796, 799, wherein it was held that to sustain a conviction for the offense charged in the pertinent statute, "the office or the official function of the one to whom the bribe was offered, as a person within the class described by the statute, are facts which must be alleged in the indictment and proved upon the trial." The authority is not apposite. Here Finneran, as stated in the indictment and as proved at the trial, was, in pursuance of his lawful duty, functioning officially in the consideration of the draft status of the appellant. Schanerman made no application for a transfer from Board No. 31 to Board No. 32. In connection with his effort to obtain deferment, he personally appeared before Local Board No. 31. At no time prior to his indictment did he object to its jurisdiction. It is too late now for him to do so.
The sound reasoning in Kemler v. United States, 1 Cir., 133 F.2d 235, 238, with which we are in accord, rejects the rationale of appellant's argument. In an opinion upholding the conviction of a registrant under the Selective Training and Service Act of 1940 for attempted bribery of an examining physician, the court said:
The district court did not err in denying the motions to dismiss and to direct a verdict of acquittal. Adequate substantial evidence to support the verdict of the jury was introduced upon every element necessary to constitute the offense charged. It was for the jury to accept or to reject the truth of the testimony of Arthur Barrish, John P. Finneran, William H. Mounger, Jr., and other witnesses introduced by the Government. If these witnesses were believed, the Government made its case. Schanerman himself admitted presenting the whiskey to Finneran. His excuse for making the gift was, to say the least, lame and the jury was not bound to accept his flimsy explanation.
The jury was correctly cautioned concerning the testimony of the accomplice, Arthur Barrish: No other portion of the court's charge obscured the clarity of this accurate statement of the law.
Appellant says that the trial court in the delivery of two instructions upon the subject of "character evidence" fell afoul of the rule announced in Nicola v. United States, 3 Cir., 72 F.2d 780, 787, that reversible error is committed when a jury is given two instructions, one correct and the other erroneous, and prejudicial, it being "impossible to tell which one the jury followed."
The court charged the jury as requested by the defendant as follows: This special instruction was supplemented by the following commentary by the court: We find no demerit in the body of the above-quoted instructions concerning evidence of good reputation received in a criminal case. The charge upon the subject matter was clear and correct, and conformed to the criterion established in United States v. Quick, 3 Cir., 128 F.2d 832.
No error is found, as charged by appellant, in the refusal of the district court to instruct the jurors to disregard what they had heard when records of conversations between appellant and Finneran were "played" in the hearing of the jury during the trial. This type of evidence was admissible upon the authority of Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322. Transcribed notes, made by a stenotype operator from hearing the records repeatedly "played", were properly excluded; but the mere fact that certain portions of the mechanically recorded conversations were less audible than others did not call for exclusion of what the jurors personally heard from the "playing" of the records. There would be no more valid reason for exclusion of the mechanically recorded conversations than there would be for excluding competent conversations, overheard in part, by human witnesses.
The charge of appellant that he was deprived of a fair trial through prejudicial comments of the trial court and misconduct of the United States attorney is not well grounded. The record reveals that the trial judge assumed and adhered to a fair and impartial attitude; and though the district attorney prosecuted with vigor, and perhaps was overzealous at times, he did not transcend the bounds of fair play, except in a single instance, when he asked during the trial whether the defendant, who had gone to trial on a not guilty plea, would plead guilty. The...
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