Ziegler v. United States, 11555.

• Decision Date: 09 June 1949
• Docket Number: No. 11555.,11555.
• Parties: ZIEGLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

174 F.2d 439 (1949)

ZIEGLER v. UNITED STATES.

No. 11555.

United States Court of Appeals Ninth Circuit.

March 18, 1949.

As Amended on Denial of Rehearing June 9, 1949.

Charles H. Carr, of Los Angeles, Cal., for appellant.

James M. Carter, U. S. Atty., Ernest A. Tolin, and William L. Baugh, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before MATHEWS and STEPHENS, Circuit Judges, and DRIVER, District Judge.

MATHEWS, Circuit Judge.

On December 21, 1946, an information was filed against appellant (Paul J. Ziegler) and the West Coast Supply Company. The information was based on paragraph (5) of subsection (a) of § 2 of the Act of June 28, 1940, c. 440, as amended by § 301 of the Second War Powers Act, 1942, 50 U.S.C.A. Appendix, §§ 633 and 1152;¹ § 2.9 of General Ration Order No. 8, 8 F.R. 3783, issued under subsection (a) on March 25, 1943;² and paragraph (d) of § 15.7 of Third Revised Ration Order No. 3, 11 F.R. 134, issued under subsection (a) on December 29, 1945.³

The information was in eight counts. Count 1 alleged: "On or about July 1, 1946, in Los Angeles County, California, within the Central Division of the Southern District of California, defendants, West Coast Supply Company, a partnership, and appellant, willfully and unlawfully performed acts prohibited by section 15.7(d) of Third Revised Ration Order No. 3, in that said defendants did willfully and unlawfully issue and cause to be issued a sugar ration check for an amount larger than the balance in the account on which it was drawn, less the amount of outstanding checks drawn on that account, by issuing and causing to be issued to the Union Sugar Company a sugar ration check drawn by and on behalf of the said West Coast Supply Company and appellant in the amount of six hundred thousand (600,000) pounds of sugar, on the Union Bank and Trust Company of Los Angeles, when the West Coast Supply Company had a balance in its accounts at said bank in an amount insufficient to cover the amount of said check."

Count 2 alleged: "From on or about July 3, 1946, to on or about August 17, 1946, in Los Angeles County, California, within the Central Division of the Southern District of California, defendants, West Coast Supply Company, a partnership, and appellant, willfully and unlawfully performed an act prohibited by section 2.9 of General Ration Order No. 8, in that said defendants did willfully and unlawfully receive a rationed commodity, three hundred and eighty thousand (380,000) pounds of sugar from the Union Sugar Company, in exchange for a ration document, to wit, a sugar ration check drawn by and on behalf of the said West Coast Supply Company and appellant in the amount of six hundred thousand (600,000) pounds of sugar, on the Union Bank and Trust Company of Los Angeles, dated July 1, 1946, and issued by the defendants,⁴ when said defendants knew and had reason to believe that the said ration document was not validly issued because the said West Coast Supply Company did not have a sugar ration bank account in said bank with a balance therein sufficient to cover the amount of said check."

Counts 3, 5 and 7 were similar to count 1, except that count 3 related to a check issued to Spreckels Sugar Company for 30,000 pounds of sugar; count 5 related to a check issued to Holly Sugar Company for 660,000 pounds of sugar; and count 7 related to a check issued to C & H Sugar Company for 80,000 pounds of sugar.

Counts 4, 6 and 8 were similar to count 2, except that count 4 related to 30,000 pounds of sugar received from Spreckels Sugar Company on or about July 2, 1946, in exchange for the check mentioned in count 3; count 6 related to 660,000 pounds of sugar received from Holly Sugar Company from about July 1, 1946, to about August 30, 1946, in exchange for the check mentioned in count 5; and count 8 related to 80,000 pounds of sugar received from C & H Sugar Company on or about July 5, 1946, in exchange for the check mentioned in count 7.

Appellant was arraigned, pleaded not guilty to each count of the information, was tried, convicted and sentenced on each count and has appealed.

Thirteen alleged errors are specified. Specifications 1 and 2 are that the court erred in admitting evidence. Specification 5 is that the court erred in rejecting evidence. Specifications 1, 2 and 5 do not, as required by our Rule 20,⁵ "quote the grounds urged at the trial for the objection and the full substance of the evidence admitted or rejected, and refer to the page number in the printed or typewritten transcript where the same may be found." Hence we are not required to consider specifications 1, 2 and 5.⁶ However, we have considered them and find no merit in them.

Specification 3 is that the court erred in denying a motion made by appellant for a judgment of acquittal. The motion was on three grounds. Ground 1 was that the information did not state an offense. This ground is not urged here and hence need not be considered by us.⁷ However, we have considered it and find no merit in it.

Ground 2 was that there was "a complete variance of the proof with the allegations of each and every count of the information." Ground 3 was that the evidence was "wholly insufficient to support a verdict of guilty on any of the eight counts of the information." In substance, grounds 2 and 3 were one ground, namely, that the evidence did not warrant appellant's conviction on any of the counts. There was evidence to the following effect:

At all pertinent times, appellant and his father (John H. Ziegler) and brothers (Allen S. Ziegler and Raymond M. Ziegler) were partners doing business in Los Angeles, California, under the name West Coast Supply Company. Under that name, appellant and his father and brothers had three sugar ration bank accounts, all of which were carried by Union Bank & Trust Company of Los Angeles, hereafter called Union Bank. To distinguish the three accounts from each other, one was called the West Coast Supply Company wholesale account, one was called the West Coast Supply Company processing account, and one was called the West Coast Supply Company industrial account. On July 1, 1946, the balances in these accounts were as follows: In the wholesale account 43,196 pounds of sugar; in the processing account, 6,832 pounds of sugar; in the industrial account, 4,689 pounds of sugar.

On July 1, 1946, in Los Angeles, appellant issued four sugar ration checks, drawn by him on the West Coast Supply Company wholesale account, as follows: To Union Sugar Company, check 144 (exhibit 6) for 600,000 pounds of sugar; to Spreckels Sugar Company, check 145 (exhibit 5) for 30,000 pounds of sugar; to Holly Sugar Company, check 146 (exhibit 4) for 660,000 pounds of sugar; to C & H Sugar Company, check 148 (exhibit 3) for 80,000 pounds of sugar. Check 144 was issued first and was outstanding when checks 145, 146 and 148 were issued. Each of the four checks was issued for an amount larger than the balance in the account on which it was drawn less the amount of outstanding checks drawn on that account. Appellant knew this when he issued the four checks mentioned above. Therefore he knew or had reason to believe that each of them was invalidly issued.

Between July 1, 1946, and August 30, 1946, in Los Angeles, appellant and his father and brothers received a rationed commodity, namely, sugar, in exchange for ration documents, namely, the four checks mentioned above,⁸ as follows: From Union Sugar Company, 600,000 pounds of sugar in exchange for check 144; from Spreckels Sugar Company, 30,000 pounds of sugar in exchange for check 145; from Holly Sugar Corporation, sometimes called Holly Sugar Company, 660,000 pounds of sugar in exchange for check 146; from California & Hawaiian Sugar Refining Corporation, sometimes called C & H Sugar Company, 80,000 pounds of sugar in exchange for check 148.

Each of the four checks mentioned above was on a printed form the last two lines of which were as follows:

"................................ (Print or type name of your account) "................................" (Authorized signature)

Appellant signed his name on the last line of each check. At that time, however, nothing was written, printed or typed on the preceding line. Appellant therefore contends that the checks were not "completed" and hence were not "issued," within the meaning of subparagraph (15) of paragraph (c) of § 24.1 of Third Revised Ration Order No. 3.⁹ We reject this contention for the following reasons:

The evidence showed that, after appellant had signed his name on the last line of each check, his attention was called to the fact that nothing had been written, printed or typed on the preceding line; that thereupon, with appellant's knowledge, consent and approval, the words "West Coast Supply Company" or "West Coast Supply Co." were printed or typed on the preceding line of each check;¹⁰ and that the checks were thereafter delivered to the sugar companies to whose accounts they were made payable. Thus the checks were "completed" and "issued," within the meaning of subparagraph (15).

It is true that the words "West Coast Supply Company" or "West Coast Supply Co." were not followed by the word "wholesale" or "processing" or "industrial" to indicate the account on which the checks were drawn. The evidence, however, showed that it had been and was agreed and understood by appellant and Union Bank that, in the absence of any such indication, ration checks drawn by appellant would be treated as having been drawn on the West Coast Supply Company wholesale account. The four ration checks mentioned above were so treated, and properly so, and were "completed" checks despite the omission of the word "wholesale." In view of the agreement just referred to, they would have been "completed" checks even if the words "West Coast Supply Company" or "West Coast Supply Co." had been omitted.

Appellant contends that he did not have an "account," as defined in subparagraph (1)...