262 F. 664 | 6th Cir. | 1920
(after stating the facts as above). 1. One of the grounds of a motion for new trial, overruled by the trial judge, was that the verdict was not supported by the evidence. As to this, the trial judge said:
“The verdict is sustained by material evidence, and is not manifestly against the weight of the evidence, so as to require or warrant its being get aside/’
While it is not claimed that we could or should review the discretion of the trial judge in passing upon the motion for new trial, it is urged that he misconceived his legal duty, and thus committed reversible error. This ground of error is not assigned; but, if there was error in this respect, which was plain and clear, we should be inclined to notice it under rule 11 (202 Fed. viii, 118 C. C. A. viii), and accordingly we have'considered this complaint.
The general principle may be illustrated by the familiar case where the trial judge sets aside a verdict in a civil case because it is against the weight of the evdence, and, upon another trial before the same judge and upon the same evidence, another jury renders the same verdict. Undoubtedly, he may, as he often does, consider this history as .a sufficient reason for disregarding his still persisting individual opinion about the evidence, and for refusing another trial;, and this practice demonstrates that the opinion of the judge upon that subject does not, as matter of law, constrain him to grant a new trial accordingly. There is nothing in this record to show that the trial judge had found the evidence so insufficient as to deprive him of his ordinary discretionary power.
“Under tie constitutional right of defendant, that notice [to produce original checks and drafts] should not have been given, and the court was in error*667 in making the suggestion and permitting the notice to be given in your presence, and that action is withdrawn. That notice goes for nothing. You are not to draw any inference as to whether the defendant has or lias not these vouchers in his possession. There is no inference to be drawn against him, if it appears that he does not produce them later in the trial. The government proceeds to prove its case and [the defendant was not required to make the production] and no inference whatever is to be drawn from his failure to do so. You understand that. Expunge that matter from your minds as though you had not heard it.”
We do not find that any exception was saved to the earlier action of the court in permitting the demand, nor to any supposed insufficiency of the effort thus made by the court to cure the error; and yet we do not depend solely upon that ground for concluding, as we do, that there was no reversible error. Plainly, the trial court-did everything possible to neutralize the false step which had been made. The argument of counsel is that the injury was past remedy, since it was impossible for the jury to expunge from their minds the things which they had seen and heard. See comment to that effect in Gillespie v. State, 5 Okl. Cr. 546, 115 Pac. 620, Ann. Cas. 1912D, 259, 35 L. R. A. (N. S.) 1171. Every such case must depend upon its own circumstances as to whether the net result is reversible error; and we therefore look further into the record. The case is one where ample secondary evidence was at hand to prove many of these checks and drafts, and some evidence as to all of them, and there are no suggestions that this secondary evidence was attacked or questioned. The inference that many of these originals had come into Bain’s possession, and that he could or would produce them or account for their absence, if he questioned anything shown by the bank books, would be so natural in the minds of all men that we doubt whether it could be regai'ded as either created or strengthened in the minds of this jury by the demand which was made.
Later in the trial, and as a part of his defense, Bain produced all that he had of these same checks and drafts, and offered them in evidence; and while, under many circumstances, such a production and offering could not be called voluntary, after what had occurred, yet we have no substantial doubt that he would have produced and offered them just the same, if the objectionable demand had never been made. Further, it cannot be said that the evidence covered by the demand was “highly incriminatory.” Plaving this view of the practical situation, we cannot think that Bain was, in the end, substantially prejudiced by the erroneous view which the court temporarily and briefly held and expressed. For instances where it was thought that such an error might be sufficiently cured, see Wilson v. U. S., 149 U. S. 60, 67, 68, 13 Sup. Ct 765, 13 L. Ed. 650, and Dunlop v. U. S., 165 U. S. 486, 489, 17 Sup. Ct. 375, 41 L. Ed. 799, and People v. Gibson, 218 N. Y. 70, 112 N. E. 730, Ann. Cas. 1918B, 509.
3. At some time prior to the trial, Bain had gone into bankruptcy and had submitted to an examination, pursuant to section 7 (9) of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 548 [Comp. St. § 9591]). His deposition had been written out and signed by him and
“But no testimony given by bim shall be offered in evidence against him in any criminal proceeding.”
Obviously, the use permitted of this deposition was erroneous, and we have only to decide whether objection was properly saved for our consideration, and whether there was substantial prejudice.
Such a record, showing that the objection was rightly overruled so far as concerns the only reason then urged in its support, does not call upon us to reverse a judgment because counsel have later discovered another and a better reason. It may well be said, as it has been (Johnson v. U. S., 163 Fed. 30, 31, 89 C. C. A. 508, 18 L. R. A. [N. S.] 1194), that where an objection in general words must have been understood by counsel and by court to be for a particular reason, because that reason was well known and no other was suggested, the objection will be considered sufficiently definite to base error upon; but that is not this case: vHere the objection that the testimony was incompetent had been based upon a special reason strenuously urged, and all the circumstances contradict any infer
A reasonable probability (to say the least) that this error need not be thought prejudicial under the practice formerly prevailing in the federal appellate courts becomes a certainty in view of section 269 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1163 [Comp. St. § 1246]), as amended February 26, 1919, c. 48, 40 Stat. 1181.
The judgment of the court below must be affirmed.
Comp. St. Ann. Sups. 1919, § 1246.