Zimberg v. United States, 3909.

• Decision Date: 24 April 1944
• Docket Number: No. 3909.,3909.
• Citation: 142 F.2d 132
• Parties: ZIMBERG et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

142 F.2d 132 (1944)

ZIMBERG et al. v. UNITED STATES.

No. 3909.

Circuit Court of Appeals, First Circuit.

April 24, 1944.

John I. Robinson, of Springfield, Mass., and Thomas H. Mahony, of Boston, Mass., for appellants.

Joseph J. Gottlieb, Asst. U. S. Atty., Edmund J. Brandon, U. S. Atty., Robert L. Wright, Sp. Asst. to the Atty. Gen., and F. J. Hansberry, State Enforcement Atty., Office of Price Administration, all of Boston, Mass., for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

This is a consolidated appeal from judgments sentencing the defendants to fines and imprisonment after they had been found guilty by a jury of violating § 4(a) of the Emergency Price Control Act of 1942, 56 Stat. 28, 50 U.S.C.A.Appendix, § 904(a), by making sales of beef at prices in excess of those prescribed by Revised Maximum Price Regulation No. 169.

It appears that on the dates of the violations alleged in the indictment the defendants as co-partners were engaged in the wholesale meat business in Springfield, Massachusetts, under the name of Hampden Beef Company, and that they were also officers, directors and holders of a majority of the stock of Big Four, Inc., a corporation which had concessions for the retail sale of meats in two stores, one located in Pittsfield and the other in North Adams, Massachusetts. On March 15, 1943, the grand jury returned an indictment in ten counts against the defendants charging that, as co-partners during January, 1943, they had made ten separate sales of beef at above ceiling prices, four to one Jules Biron, one to a certain Hilaire Roy, one to a certain Richard A. Omar and four to Big Four, Inc. Upon arraignment the defendants pleaded not guilty. During the trial that followed the court directed the jury to return verdicts of not guilty as to the defendant Goldberg on all counts except 2 and 4, and verdicts of not guilty as to the defendant Zimberg on all counts except 2, 4, 5, 8, 9, and 10. The jury found Goldberg guilty as charged in counts 2 and 4, and Zimberg not guilty as charged in those counts but guilty as charged in counts 5, 8, 9, and 10. The defendants thereupon took this appeal to us.

Both defendants here advance the same constitutional arguments advanced by the defendants in Rottenberg v. United States and Yakus v. United States, 1 Cir., 137 F.2d 850, decided by this court on August 23, 1943. Since we considered and rejected these arguments in the above cited cases and our decision therein was affirmed by the Supreme Court on March 27, there is no need for us to consider them again.

Both defendants also contend that there are variances between the allegations made in the counts before us and the proofs offered in support thereof. The variances pointed out, however, are minor. They are not of a character which could have operated either to mislead the defendants to their prejudice at the trial or to deprive them of their respective rights to be protected against subsequent prosecutions for the same offenses. Since we cannot see that the variances pointed out could in any way have affected substantial rights of the defendants, it follows from § 269 of the Judicial Code¹, 28 U.S.C.A. § 391, that these contentions are without merit. Berger v. United States, 295 U.S. 78, 81-84, 55 S.Ct. 629, 79 L.Ed. 1314.

We turn now to the counts upon which the defendant Goldberg was found guilty, but the defendant Zimberg was not, numbers two and four.

In count two the defendants are charged with having made a sale on or about January 5, 1943, at Springfield, to Jules Biron of one hindquarter of beef of good grade, weighing 156 pounds for $46.46, and in count 4 with having made a sale on or about January 13, 1943, at the same place and to the same purchaser of hindquarters of beef of the same grade weighing 637 pounds for $191. That is to say, by computation the counts allege sales at approximately 30 cents a pound.

The defendant Goldberg admits that the ceiling price fixed for beef of the above description during January, 1943, by Revised Maximum Price Reg. No. 169 was 25¼ cents per pound, and he also admits that sales of beef of good grade were made by the Hampden Beef Company to Biron on the dates and for the total prices alleged. But he contends that the evidence is not sufficient to warrant the conclusion that the sales were made at above ceiling prices. He says that the only competent evidence is that the beef sold to Biron on the dates in question weighed 184 pounds and 764 pounds respectively, weights which if divided into the alleged and admitted total price paid would make the price per pound within the established ceiling.

Biron was the only witness offered by the government to prove the allegations made in these counts. Through him customers' copies of invoices were put in evidence showing two sales by the Hampden Beef Company to him; one on January 5, 1943, of "Hind" weighing 184 pounds at 25¼ cents per pound, total $46.46, and another on January 13, 1943, of "Hind" weighing 764 pounds at 25 cents per pound, total $191. These invoices on their faces support the defendants' contention as to weights and in consequence shows sales at or just below the ceiling price, but the government contends that in each invoice the weight was overstated so that, the total price paid in each instance being admitted, there were in fact overpayments of price per pound. In support of its contention it relies upon the testimony of Biron who said that between Christmas 1942, and New Year's Day following, he was told by the defendants that thereafter he would be charged 30 cents per pound for hinds of the quality described in the invoices and that, regardless of what the invoices showed, that was in fact the price which he had paid for the hinds sold to him on January 5 and 13. The defendant Goldberg contends that since Biron admitted that he had not himself weighed the beef purchased on the above dates, or seen it weighed, his testimony as to price per pound, which was objected to, should have been excluded on the ground that it was merely the statement of a conclusion drawn by the witness, not the statement of a fact. We do not agree.

Ordinarily in the interest of accuracy a lay witness' testimony should be confined to statements of concrete facts within his own observation, knowledge and recollection, that is, to facts perceived by the use of his own senses as distinguished from his opinions, inferences, impressions or conclusions drawn from such facts. However, as Judge Learned Hand pointed out in Central R. Co. of New Jersey v. Monahan, 2 Cir., 11 F.2d 212, 214, "The line between opinion in the sense of an inference or conclusion from basic data and fact is at best only one of degree, and ought to depend solely upon practical considerations, as, for example, the saving of time and the mentality of the witness. It is hardly ever reversible error to admit such evidence; its foundation may generally be as conveniently left to cross-examination. Every judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the `facts' in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose." The best solution suggested seems to be that the question of how far, short of guess or surmise, a witness may go in stating his conclusions is for the practical discretion of the trial court. See United States v. Cotter, 2 Cir., 60 F.2d 689, 693, 694; 20 Am. Jur., Evidence §§ 763-774, Am.Law Inst., Model Code of Evidence, § 401. Often the best solution is to do what the court below did here, that is, permit the witness to state the fact as he believes it to be, leaving the validity of the grounds upon which he rests his belief to the test of cross-examination. Here it appears that the witness had never weighed the beef which he had bought or seen it weighed. This weakens his conclusion as to the price per pound that he paid for it, but it does not destroy his conclusion altogether because it appeared that he was a market man of seventeen years' experience who, presumably, would be able to tell within a very few pounds how much the beef weighed without actually putting it on the scales. We are of the opinion that the court below acted within the bounds of discretion in admitting Biron's testimony and that it is sufficient to support the verdict of guilty returned by the jury against Goldberg on the counts under consideration.

The defendant Goldberg next contends that he should have a new trial on these counts for the reason that the jury by finding him guilty as charged therein, but his partner Zimberg not, returned inconsistent verdicts. The answer to this contention is that the evidence with respect to the participation of the partners in the transactions with Biron on January 5 and 13 is not the same. Biron, as already appears, testified that he talked...