*2 EDGERTON, K. WILBUR Before PRETTYMAN, Associate MILLER and Justices.
PRETTYMAN, Associate Justice. Appellants for violation of indicted were for fraud statute1 and the mail Trial was had statute.2 violate that the conclusion At before prosecution, the defendants for the acquittal. verdicts moved for directed Defend motions. The denied the mo on the and Fuller stood ants Defendant no evidence. tions and offered presented character witnesses eight Smith documentary evi proffered certain were con These defendants dence. three They were conspiracy count. victed on the acquitted counts some of the on substantive appeals were and convicted others. argument. consolidated can be skeletonized for The evidence MILLER, Associate K. WILBUR organized present purposes. part. Justice, dissenting Engineers’ Group, in- group, later called Group' corporated. membership in the identified, consisting, far here so material, Certain of its officers. activities Group, on in carried name in furtherance the mails were used activities included the ne- Those thereof. gotiation of contracts with and execution manufacturing construction concerns receipt money from those con- and the pro- related The contracts to the cerns. work government war curement Leahyj Washington, E. Mr. William construction, furnishing housing and the Chase, C., Mr. Nicholas with whom D. J. similar engineering service con- brief, C., was on the Washington, D. negotiation work. with that nection No. 9208. appellant contracts, representations were made Group as to Gallagher, of name of business Washing- A. Mr. William assets, staff, its by it, its and the C., appellant ton, No. 9209. controlled D. § 88. 2 18 U.S.C.A. § 18 U.S.C.A. pro- government representations various name existing status of made *3 by the money jects. Group usually was received by appellant The made were held as Group agreements Fuller, that it be president. its vice under The contracts busi- contemplated Fuller, deposits negotiated were in large part by returned and and projects materialize. did were by ness The was executed him. office managed him, dis- by and he controlled the false, representations and were The position of the He with- funds on hand. kept, except agreements were not $18,000“in drew about to himself or checks paid funds from three refunds made were otherwise.” repre- Group was by people. The control the as within having sented Appellant Curley president of the was gov- designation certain of contractors on Group cor- from and of the June housing war work. It projects ernment and poration his incorporation until from its represented as had none. was staff Its December, resignation about the middle of experienced. large and was It was It not. customers, 1941. He several or introduced represented large as amounts having clients, Fuller, such as with statements security cash in extensive hold- bank and Fuller, Washington”, “our man ings. holdings. or no such amounts project materialize, ready that was all projects represented were housing Certain all ready and is our man go; “Mr. Fuller having approved by Federal been matters”; who handles these the details of Housing They had not Administration. “this group jobs and sev- had several financing rep- were been. Commitmentson they eral contractors contracts needed by having resented been made financial sought Curley do them.” time one projects. No such institutions on certain Group, secure a “loan” a bank to the from These vari- commitments had been made. understanding amount representations inducements for ous were would remain as an account in the bank Group by the the contracts made with its Group, subject the name to with- They customers or clients. made were drawal; and that advise the bank would letters, verbally, agreements, contract any inquirer Group widely and in brochure distributed. The deposit amount Curley on bank. at the money deposits was not held received as money being by knew was received spent but was as received. returned, Group condition that depositor representations as at least described, one aid in above invoked his them, deposit. securing Curley some of return of made concern were frequently Group Group with which at the officeof the concluded a con- tract, Washington and to whom no occasion others with was in contracts room while money discussing possible concluded. Fuller received money- deposits Group was the contracts customers. ever money received. paid No in to Curley did not execute contracts. He capital, although corporation’s
it as not, shows, so did far as the know record financial outstanding statements indicated signed brochure. He letters. Ex- $20,000; stock in amount of and none cept for the introduction of clients to Fuller by its owners loaned or otherwise. and statements of the nature of those which Engineers’ Group began quoted, activities in we have participate did not July, was incorporated negotiation of contracts with June customers. year. October dispute of that The venture disin- the source pay- of a tegrated in February, $3,500 with overdrafts ment to him of in currency, which he bank, unpaid wages employees, August used up to take the second of unpaid $67,0003 signed bills. About had two Newcomb, checks pay- been received customers about able to and Fuller, endorsed which had $9,600 refunded to them. cleared. The first money shown (Ex. 108) Company Tile account book explanation shows November 19. No $5,000 appears November received 0 and of the items elsewhere. We in- Plumbing Heating $2,500, from Fells Com- clude receipt, the indicated net $2,500
pany, and Company. “check returned” to that as received from quot- Group repetition, er rule by the become trite received record to become ed and has misleading statement is August 12. was not received until City application. confused in Municipal Court testified in the amount received he had Boston that include functions of the Engineers’ of the officials “from one credibility of wit the determination of the Fuller, and Group”, have been shown to nesses, weighing develop- *4 them in that he “worked with the fact of drawing inferences justifiable of the the He said that ment of business.” the proven of function from It is the facts. messenger a “as transaction he acted deny jury any opportunity judge to the purporting agent.” or evidence is' may operate beyond jury province. any other received to show conjecture merely, or permitted not be money Group. from the upon pure speculation or from to conclude passion, sympathy. The crit prejudice or ap principal made point T-he existence point boundary the ical this is erred pellant that the Curley is trial doubt non-existence a reasonable or of acquittal verdict of refusing to direct a that rea such guilt.5 If evidence is the upon a disputed that as to It is not him. necessarily have jurymen sonable must such verdict, judge a the directed motion for acquittal, doubt, require judge a must the truth of the Government’s the assume must within permissible is because no other result the the Government bene give evidence But jury the of consideration. fixed bounds drawn legitimate inferences to be fit of all fairly have a might a mind if reasonable upon state Appellant relies therefrom. have might fairly or doubt reasonable concerning ments of courts one, case is for the deci judge deter a trial must tests rec jurors is for make. law sion upon the proper action motion. mine the scope mind of reasonable ognizes a example, in For Hammond always conclusion broad. Its is 1942, U.S.App.D.C. 127 F.2d evidence, certain, may point upon given but, quoted from Isbell v. United Both be of conclusions. a number one “Unless there sub as follows: States4 beyond reasonable guilt innocence evidence of facts which exclude stantial fairly the limits of rea may lie doubt within guilt it every hypothesis but that given facts. The conclusion from sonable judge instruct the duty trial of the judge’s function exhausted when he de accused, Verdict for jury to return a evidence does not termines or does all the substantial evidence and where guilt beyond permit rea the conclusion guilt 'with innocence as as consistent with operation the fair of a sonable doubt within appellate court to re-' duty is the mind. reasonable against him.” judgment verse , rule, therefore, quoted true statement seems is that It is The true judge, passing say evidence excludes the trial a motion for unless innocence, acquittal,6 judge must di- verdict of must directed deter say evidence, giving And it also full rect a verdict. seems to mine whether jury right is such that a reason- play to the determine that if the evidence evidence, weigh credibility, in- draw might fairly mind conclude either able fact, guilt justifiable guilt, a verdict of must be inferences a reasonable nocence or guilt beyond appeal. obviously might fairly’ But conclude on neither mind reversed Logically, up he is the If concludes that of those translations law. doubt. reasonable there must be of that thesis is that the evidence such doubt premise ultimate mind, grant he must might reason- mo mind have a reasonable a reasonable if or, tion; way, is, therefore, state another doubt, a reasonable there able there upon which a many evidence not true. Like anoth- is no reasonable That is doubt. judgment acquittal Cir., 1915, un- Motion for F. 29(a) new Federal Rule of the Rules der United States discussion See Procedure, Co., D.C.D.C.1943, Gypsum fol- 18 U.S.C.A. of Criminal States . lowing F.Supp. 613, section 687. 628-633 acquittal to direct judge If beyond guilt fairly conclude might mind failed whenever in his grant- doubt, must motion that of hypothesis but exclude two either he concludes If ed. the functions preempt guilt, no reasonable he would results, doubt a reasonable jury rule, judge would let. the Under such doubt, possible, fairly per- partic- beyond guilt given convinced matter. decide of doubt before adventure circumstantial ularly That is upon the differ- the case. depend consider may permitted to determination legiti- proce- in criminal speculation place pure between ence proven facts. judges of the They inference dure. mate easy, is not innocence, in such case merely a device task of frequently difficult reason is rule of checking conclusions way to avoid of no apply, know judge. but we difficulty. *5 pre said that It is the accused part of the above- valid, first To the innocent. That to be statement sumed case, the Hammond from quoted statement true, absolutely and is also true the the to mean that supra, be understood must the accused until a ver presumption follows jury go the unless a case let judge cannot persuasion But dict been reached. has to a of some fact is evidence there guilt beyond a reasonable doubt overcomes hypoth- fairly excludes the reasonable mind presumption. Our the discussion whole statement The of innocence. refers esis determining about the centers function of not requisite presence of and the vel We reasonable doubt non. hold evidence. of other to the absence effect function, provided jury’s quoted part of the statement second The as permit such fair reasonable mind if, upon the whole of the evi- means that ly to reach of the two either conclusions. dence, a mind be in must balance reasonable any way impinge We do in upon not innocence, a verdict of between presumption of innocence. We find the rule guilt cannot be sustained. procedure by presumption which that Although has this court made the state- overcome. quoted, actually ap- rule we have ment state it is supported rule we The not plied Thus, been now state in has as we it. only by reasoning indicated, we have case, supra, in the Hammond ample authority.8 by but sentence, quoted after the the court went on The confusion which seems to have aris- say, light “In the circumstances we traceable, subject think, upon en we related, impossible have think it we that a failure to a- observe some cases jury reasonable men could have fairly applicable between t-he clear difference tests appellant, reached conclusion that motion a directed to a verdict and the did, what necessarily intended to commit jury tests must rape.” case,7 determine Cady And the court quoted judge upon trial said that the rule The must act applicable “is verdict. here, motion, because must also jury. the facts and he instruct established are such jury fully difference between his warranted in deduc- functions from them inferences which functions makes differ- excluded every hypothesis but between the guilt.” guide that of tests which must ence Cady 7 States, 1941, 19, 429, States, 1923, App. v. United 312 U.S. 61 S.Ct. 54 10, 829, 488; Manton, D.C. 293 F. United L.Ed. States v. 85 Cir., 1938, 834; 107 F.2d 2 United 8 Morley, Cir., 1938, States, 1920, v. 7 Pierce United States v. F.2d 252 U.S.
239, 205, 542; 683; States, 1932, 40 S.Ct. 04 L.Ed. Stil- v. United Smith 1919, States, App.D.C. son v. United F.2d U.S. See the 1154; 40 S.Ct. United States v. L.Ed. United Glasser discussion v. Gypsum Co., D.C.D.C., 1943, 51 F. States S. 680; Supp. 613, Ct. 86 L.Ed. Gorin 628-633. him tests as acting said, falsity the motion the truth jury. combination, which he instruct must charge of unlawful knowledge, inculpating defendant’s could The matter has an historical interesting only determined inference background. lie Of roots course shown; and the inference which long respective func controversy over thé plaintiff in been error should have insists juries judges tions criminal cases. arbitrarily surely a neces- assumed history We But need here.9 recite one, sary found to be not has specific a more of events historical chain even clearly one. We are appears reports. Originally the lan opinion that it them error allow guage quoted in the Hammond by this court to decide whether it rule was or not. above-quoted, supra, and used that, crime, to justify evi- conviction of reports charges several to the be such rea- dence exclude Babcock,10 States v. seem to have of United hypothesis guilt, sonable but been the some of later confu source of not, observed, will overlooked. report11 sion. court’s con is the applied? But whom is rule to be sideration of a motion direct a verdict. cases, doubt, court; In some discussing After relative functions of certainly this, not in such a one as where relying Hickman reasonableness Jones,12 City v. and Sioux & Pacific R. R. propounded presents innocence at least Stout,13 the mo held *6 question upon which in- ordinary men tion, facts in evidence must be telligence might honestly differ.” admitted, as “but every also con considered might Then, later, a jury fairly clusion which or still Ap- rea the Circuit Court of ; peals sonably Eighth Circuit,17 infer therefrom” and that relying where for the sensible equally equally authority upon People different men Bennett,18 v. United Babcock, impartial inferences, 14,487,19 make different States v. No. United report Hart,20 the jury. case Another in States v. and United Mc- States v. 14 Kenzie,21 case contains court’s charge judgment same reversed a for failure to the Here court as used a cor of court to the trial direct verdict and re- exposition applicable rect law following to the cited controlling as jury, portion People in acting court v. in motion: the- “Circum- Bennett15 as : follows “The evidence must stantial evidence warrants conviction in be such every' (reasonable) case, as to exclude provided a criminal it is such as to hypothesis but that of guilt his exclude, hypothesis the of but o,f imputed him; or, words, fense in guilt imputed that of offense to the proved defendant; must all or, facts be consistent words, in the facts only, point guilt his they but proved must must all be consistent with and be inconsistent with his point innocence.” guilt only Years his inconsistent with later, States,16 v. United ap Hart an innocence. The guilt pellate court considered naturally whether the trial should flow proved court in letting erred go to the and be consistent with them all. If the evi- and, affirming, part: “But, said in dence can be reconciled either with the the-
Juries as
52
velle, The Jurors and the
65 Conn.
Evidence
How.St.Tr.
Battiste, C.C.D.Mass.,1835, 24 Fed.Cas.
1042,
23 Harv.L.Rev.
10
9
Harv.L.Rev.
See
No.
C.C.E.D.Mo.,1876,
No.
Bushell’s
14,486,
Judges
14, 545
(3d
Nos.
287,
999
ed.
123,128, 130, 131;
cure custom- would be sufficient to violate the contracts ers, concerned, that statute. profit but to the of all plan thus, awry; its that the plans went Supreme The Court said:32 “Partic accom- merely failed of was bona fide and ipation not be a criminal need ignores plishment. mis- contention proved evidence; pur a common direct very be- representations, made pose plan may inferred from ‘de be controlled, Group the des.- ginning, that the velopment and a collocation of circum actually had ignation contractors, Manton, [Citing stances’. United States v. large allocate, staff was that its contracts to Cir., It seems us F.2d 834.]” substantial. experienced its assets reasonably jury might in the case at bar existing representations as to Those false beyond doubt, that, conclude thought disprove the fairly may Group organized members of con Moreover, plan. good claim faith in sciously planned to secure from out- funds from the failure contention suffers parties by gross misrepresentations, side . with which to provide funds Group spend money, anticipating expected should carry business until its if the venture abun main were successful plan original materialize. If the profits result, dant to all would that'i'f fide, why appellants hard to see bona failed would customers loss supply secure did not funds Group. Group and not If the necessary operating ex- obviously to meet wholly knew specu the venture was deposits protect- penses and thus risk, persuaded lative bht the customers (cid:127) Certain- they return. to hold intended certainty false that reasonable statements Group who were ly members certainty of success full no loss being done their what was conscious of insured, the scheme was a scheme to least, were, indifferent to names money obtain false represen means most customers. The eventual result promises. tations and possible view charitable inquiry The next the facts in the by false statements were induced customers participation case at bar concerns Group with which supply funds Curley. question point crucial genuine hopes. gambled on success seems to us to whether he knew money by be obtaining Even wrongful being acts committed name enti- representations. false Group. Because, knew,- if he rea- *8 put a favorable construction tled to less fairly might sonable minds conclude he upon circumstances. the necessarily must a participant have been in Furthermore, plan if the were even main scheme, e., conspirator; i. a that no agreements legitimate, plans which consistent with -that plan secondary might the main be were to knowledge and such his acts. Was knowl- group Suppose a intended to fraudulent. edge part legitimate on his a inference grocery business and to make enter the proven ? It facts seems to it us that nevertheless, if huge profits; stock in the president was. corporation. He was upon representa- false enterprise were sold He frequently was in offices. He intro- receipts from such of fact' tions duced personally customers. He attempted squandered wilfully -promo- in sales were arrange awith bank for a “loan” which expenses operating be- tion instead of deposit, to be left was on a sham depiction uses, applied declared scheme ing to the financial misrepresenta- substance. The That would the scheme was fraudulent. Group made by total, tions not in- -secondary legitimate actual and de- cidental or They occasional. were made objective would be clared immaterial. So to occasional customers or clients but here, prime purpose misrepresentations even if were ulti- to all of them. The everybody, an profit agreement mate group, were not as to whether. a in control preparatory steps contracts, in the defraud of the of certain also was in control of States, 60, 80, Glasser v. United S.Ct. L.Ed. 680. complete figurehead, faith no con- that he had others; Group control questions, Fuller, any he never misrepresentations asked whatever. tracts the con- and that informed as never staff he was incidents were not toas with customers tents Group; no staff of the contracts it organization of Group statements or the use did the financial worthy the name. money; short, possible that use was legitimately might funds have cus- put upon were he much expenses and, was as inadvertence operating for individual, dip concluded into tomers. If misconduct of an might possibility, such obligated to reasonable funds which it guilt. whatever, have doubt had a reasonable deposit; it had no funds hold stated, But, possibility is Occasional, have deposits. inci- as we other than the ac- or mis- not criterion which determines partial misrepresentation dental or corpora- tion of the trial the motion officer appropriation im- verdict and may unimpressive directed the basis as basis tion officer; validity of test knowledge must puting to another judgment. corporate the verdict If the evi- af- misrepresentation of the total reasonably permits verdict of ac- sub- dence funds is fairs total diversion of quittal guilt, or a verdict of of knowl- decision ground inference for an stantial case, experi- ap- In such part for the active and make. edge on of an pellate judgment disturb fairly and court cannot president. jury might enced If proven we ourselves Curl- doubted from the legitimately a fact infer as ey’s guilt, legally im- Curley wrongs doubt be- knew said, material, if in view of the and the ing As we have committed. applicable. However, law knew, on be- think proven rule activities add, lead, proper to Group might fairly under circumstances half of the us, there that he of the as to the compel, reasonable men conclude necessarily participant doubt. must have been a plans Group. cannot be We find no substantial error upon all said that this evidence respects appellant the other Curley necessarily doubt that
minds
the trial
erred.
asserts
participant
the activities
may
That
substantive
counts
relate
Group.
charged
acts
the overt
which we
All of
evidence to
re- count,
participant
each
con
of al-
ferred
aliunde the declarations
spiracy
liable
substantive
counts
preced-
leged co-conspirators, and thus the
conspirator
all acts committed
another
dispute
discussion is clear of
as to pursuant
conspiracy,
are settled
admissibility
declarations.
If
such
(1946),
Pinkerton
U.
foregoing
our conclusions on
matter
Curley’s
S.
record indicates purely was an inadvertence technical treas- he was organization with the before The court participant actual nature. ruled that would urer, an he permit the case reopening contracts negotiation of several of the stage. have was shown to with He customers. finances. We knowledge of state of circumstances, all includ- view of In to case evidence sufficient send think the exhibits, ing the nature absence sustain the verdict. to counsel, surprise Government re- urges as error Appellant Smith identification, manner of their and the evidence 20 to admit court fusal argued fact that the counsel re- His him. exhibits offered jury, we think if the exclusion of good his showing these fers these exhibits had affeeted the substantial on any knowledge absence of and the faith Smith, rights of the action misrepresenta- any fraud or part might have constituted error! reversible during the From time to time tion.33 rights his substantial Whether were affect- Government’s presentation of the depends upon ed the nature of the docu- examination, Smith, in cross counsel for ments. witnesses documents presented the carefully We point At Gov- examined all identified. one they these exhibits. proce- Some them objected to consist counsel ernment correspondence thereby between customers and Smith ground dure on Fuller, witness, relating to his own the business of the cor making the witness poration, refer Smith in introduce his own evi- and do he could not merely way; inquiry of cross examination. one from one course dence said, however, company another concerning that in inter- Smith Group; Engineers’ permit would a wit- two concern expedition he est of business activities after he identify while he was Smith’s left ness document Group, running April, stand, although Engineers’ on the witness he 1943; pursue August, the mat- statement counsel for Smith let deposits made and checks beyond point during the course of of issued ter treasurer; while and the this manner the examination. Smith cross evi- statement showing were identified. When Fuller last exhibits in, authorized Smith issue apparently both sides he the checks dence was they hap- We see rested. This which were issued. do not how announced faith; Friday, good relate pened to and the exhibits to Smith’s be on these light thereupon Tuesday. way until it one they excused throw or the approach re- nearest Monday was discussion of sub devoted to a other. The instructions, is one letter quests ject the conclu- statement in a from a discussion, Smith, in which counsel for Smith customer the customer *10 sion of that thought forgotten believed to that he then Ful that he had indicated said he that formally but ler was rascal Smith not offer evidence documents a that did de involved; to be but the had been identified. Government serve author of which letter was protested ground that to that on the witness counsel stand dur- identification, marked for was not actual- not to 4 Our discussion does relate ly identified. Smith No. 20 Exhibit an affi- of li Smith became was No. clearly davit of Smith himself 163 and was admitted. was Government self-serving inadmissible a declara- 7 became Government 98 Smith No. although No. tion. admitted. Smith was Curley inferred from what oppor- be did. full ing the trial counsel Nevertheless, presumption of inno- full measure from him tunity to draw equivocation insists there be no It does not cence his exoneration Smith. of of always, As must convince proof. evi- in that of this that the seem to exclusion us therefore, beyond a it be not doubt. If dence, the substantial affected equivo- quality, if clear but of not rights of Smith.34 cal, permitted to jury then the must not be Affirmed. guilty. speculate is that the defendant MILLER, WILBUR K. Associate Curley see what Let did. We us then Jus- 9208). opin- in No. (dissenting go the court’s tice further than need no ion, is thus proof of his acts where my view that the should have It president summarized: “He appellant, find the instructed James frequently in its offices. Group. He Curley, guilty. wrongs were M. personally He customers. He introduced represen- -Curley no done made Fuller. arrange attempted with bank a anybody. participate tations to He did not deposit. which was to be left on loan * * negotiations signed with customers. He *” letters, no contracts. no executed He did against not know of the brochure or the financial is all record shows That money or attempted, He received no Curley, except statement. that he once admitted, request value. All this is thing Group, even a customer of recited, opinion. court’s customer’s Fuller to return that de- get posit. guilty depended, Whether
therefore, knew proof? on whether he of the of such Is quality What wrongful being committed unequivocal fairly permit in the name acts so as to That, Group. correctly infer, beyond doubt, a reasonable question says, respect with wrongful the crucial Curley knew Fuller’s acts? him. criminal respect, no intent again go need fur- no knew, If he then it opinion, not know. did the court’s ther than where we conspirator he had read, reason, become 'a follow “The within the realm of Fuller. But the of knowl- might possible with evidence have concluded it was * * * clear, equivocal.1 edge must put upon he was as much the customers.” course, true, Cur- whether ley knowledge wrongdo- statement, of Fuller’s That quite with which I proved directly, agree, not be Curley’s could could means that conduct was amended, Code, Judicial § Falcone decision “comes down merely this, § U.S.C.A. one does not become party conspiracy by aiding Justice Stone States said it, Falcone, abetting through supplies 61 S. v. sales otherwise, 204, 207, gist 128: unless Ct. L.Ed. “The he knows of the con ” * * * spiracy; conspiracy adds, defined of the offense He then “With Code, knowledge, out 18 U.S. § 37 the Criminal intent cannot ex agreement Falcone, supra.* ist. United States § C. 18 U.S.C.A. § Furthermore, conspirators among intent, an to commit establish knowledge clear, one or attended act more offense equivocal.” object conspirators to effect cited.) conspiracy. (Cases Those * point, Rutledge At Mr. Justice knowledge conspiracy having of the * * * no appended following footnote, conspirators ; are not particular signifi- seems to me to be of supplies more furnishes who without present “Although cance in the case: guilty of con distiller
an illicit principle applied aiding was there though spiracy may sale even abetting among conspiracy others, object furthered equal party has at least force in a situation the distiller was but of charge supplier conspiring knowledge.” where the an- *11 Rutledge, wilting Conduct, to further his unlawful Justice Direct Mr. 703, 319 without reference Co. be- Sales persons.” 1265, 1268, 1674, third Mm 87 LEd. said tween S.Ct. 03 240 spoke this approvingly his innocence. court it as a of consistent with
reasonably oft-repeated prin- So, government’s “Well-established conclusion of at ciple.” rule, I submitted think it is sound because when the case every inno- presumption it based believe body could it must cence. But this case against Curley and still the court’s word said definitely and, effect, inno- overturns it an- inferring guilt choose between longer necessary no rea- nounces that it is no for cence, evidence afforded when the government’s proof the the instead of foreclose the former choosing son for circumstances, hypothesis is im- of innocence. latter. In such it can guilt; possible infer for the prove beyond guilt’ a reasonable To says that only Webster surmise it. prove doubt does mean cer- merely implies frequently more word “infer” little facts which as with tain consistent supposed “surmise,” I than but have never expression guilt. as innocence To me proper concern- such connotation produces means submit evidence which criminal jury in a action of a jurors minds abiding case. conviction, conscientious cer- moral to a tainty, accused is I am guilty. this should be remembered para- his classic aware the fact weighing room evi- there was no beyond proof doubt phrase of a reasonable dence, credibility of wit- determining by Chief Shaw of Massachusetts4 nesses, justifiable inferences drawing Justice late, criticized but I do not func- proved traditional from facts —all agree with critics. Reasonable doubt For, motion for tions is not evidence from which eliminated verdict, evi- government’s directed jury may of two irrecon- draw either weight, given dence the fullest could inferences. credible, cilable regarded its witnesses could be jus- yet guilt inference civil cases a rule should not have been tifiable and here, apropos if it be the civil rule in The reason is permitted it. to draw necessary it is much cases more from guilt inference circumstantial also in situations the rule similar justifiable when the evidence never Pennsylvania cases. Railroad criminal equally permit facts at .proved least well Chamberlain, 339, 333, 288 U.S. 53 Co. v. be inferred. Guilt can innocence to be in- 393, 819, 77 391, Supreme L.Ed. S.Ct. ferred when it is from such evidence “We, therefore, have a case Court said: compelled strongly the inference so that class cases where belonging is excluded. of innocence support equal give facts each proven inferences; inconsistent in which two meagre against With the Cur- established, event, being them neither of innocence, quite ley consistent law, matter go judgment, says, seems me upon whom party rests nec against squarely case falls within the an- rule essity sustaining one of infer these in Hammond nounced v. Unit- other, against is en ences as before “Unless there is substantial ed States:2 recover.” titled to exclude evidence of U.S., page page 340 288 Again, guilt, it is the S.Ct., Supreme of 53 L.Ed. duty ju- trial to instruct accused, quoted the sentence with following for the ry to a verdict and Court return being “There several approval: inferences where the substantial evidence all appear, facts which with innocence as with is deducible consistent facts, appellate equally consistent with those reverse duty proposition him.” has not maintained the judgment against plaintiff This is not a jurisdiction, be entitled to new as far which alone he would rule States,3 in Cady v. back as recover.” U.S.App.D.C. Webster, Commonwealth 5 Cush. F.2d 752. App.D.C. 295, 320, .Dec. 52 Am 293 F. *12 adopted. may the court was We safely also guilt, when assume inferred jury the was that that it court exhausted the authorities “might have concluded said We, subject, the certainly innocent. and it read and con- possible” that opinion proved dissenting facts sidered the therefore, Isbell a case where quarrel case. That incon- dissent of two had the same equal support each give quoted by with as a matter the statement us in Judgment, the inferences. sistent law, majority Hammond against government case which the the raise in go must presump- this case. by deciding The basis the the dis- thrown which justify- sent necessity identical with basis the the of innocence the
tion
'opinion
court’s
here.
guilt.
inference of
the
ing
follows,
therefore,
It
that
there was
which
of the evidence
the view
Under
nothing
adoption
inadvertent about the
in which in
taken and
the
has
the
rule.
Hammond
It was deliberately
unques-
concur,
Hammond case
I
main
by an
court,
done
and
able
unanimous
aft-
Curley.
as to
required a reversal
tionably
having
sharply
attention
called
er
majority say
of the
my brothers
So
opinion
theory which
in
says
this case
case
the Hammond
stated in
rule
is the “true rule.”
confused in
and
become
misleading
application.
The case of Estep v. United States,5
decided
of Appeals
Court
The,
they
they
discern
confusion
Circuit,
for
Tenth
is instructive in con-
“to
failure
observe in some
attribute
a
nection with
pres-
consideration
difference between
tests
the clear
cases
ent case.
motion
a directed ver-
applicable to a
jury
tests
dict and
Estep,
Henry
Deluke and
were convicted
Originally, they
its
say,
determine
verdict.”
having
devised a fraudulent scheme for
quoted
the Hammond case
language
mining
sale of
having
stock and
used
charges
and
used
connection
mail
sale
with the
vogue
guide
as a
later came
in violation of
statute,
stock
the mail fraud
considering
motion for
direct-
and of a
devise
fraudu-
opinion
adds
ed
then
verdict.
proved
lent scheme.
It was amply
pur-
statement
is erroneous
“the
Henry
guilty,
and Deluke
although
were
or,
misleading.
pose,
the least
is they
they
maintained that
honest be-
guide
correct
for the
in reach-
representations
promises
lief
verdict.”-
Upon
they
made.
they
the trial
potentialities
reasserted their faith
is,
implication
suppose,
I
grad-
mining property.
undisputed
It was
ually
through
evolution,
sort of
money
that the
the sale
obtained
were,
inadvertently,
perhaps
numer-
stock,
exception
of certain
com-
courts,
ous
including this one in the Ham-
missions,
development
was used in the
mond
have fallen into error.
It will
operation
the mines.
however,
observed,
the Hammond
quotes
rule
Isbell
Estep
contended that
there was a
United
F.
decided
conspiracy,
scheme
fraudulent
he was
Eighth Circuit
in 1915. Because
party
never
it and
never a conscious’
learning, ability
industry
of the mem- participator
therein. The Circuit Court of
bers of this court who
decided
Ham- Appeals held that the evidence was entire-
(Chief
mond case
Groner and
justify
ly sufficient to
the conclusion of
Justice
Jus-
Edgerton
tices
Rutledge,
Henry
conspired
latter
Deluke
justice
now an associate
Supreme
defraud,
scheme to
devise the
Court of the
States)
may
or more overt
prop-
acts
committed in the
inferred,
erly be
or surmised,
the conspiracy.
furtherance of
But
Isbell
examined and
that there
considered court also held
was no evidence
carefully before its
reasonably tending
to show
statement
Estep
rule
or-
F.2d
*13
defraud,
evidence,
is as reason-
or
said: “From
to
scheme
iginally
devised
Estep
able
victimized
to
that
conspiracy.
contended
joined a
It was
conclude
by Henry
was a
Deluke,
that he
knowingly aided
and
he
that
government
participator
the fraudulent
the fraudu-
conscious
execution of
in the
and assisted
adopt-
joined and
scheme,
conspiracy.
he
conclude
that
scheme
We
lent
Estep
con-
is
conspiracy,
jury as
and thereafter
to
ed
verdict
sciously
proof
therein
affirmative
participated
supported by
degree
jury
justified
finding
from which the
acts
which we deem essential
to
criminally responsible.
intent, and
holding
criminal
guilty knowledge
him
accordingly
reversed as
judgment
said,
guilty
true,
It
him.”
usually
knowledge
intent
or criminal
jury, and is sel-
question for the
-manner,
factual
rea-
like
in this case it is
evidence, but must
provable
direct
dom
Curley was victim-
sonable to conclude that
and circumstances
be
from facts
inferred
by Fuller, as
he was a conscious
ized
mental
reasonably
to manifest a
tend
participator
scheme.
the fraudulent
Co.,
Quoting from Direct Sales
attitude.
my opinion, therefore,
verdict of
703, 63 S.
Inc.,
319 U.S.
Curley
supported
is not
court said:
Ct.
87 L.Ed.
degree
proof
I
essen-
deem
knowledge,
intent cannot
“Without the
finding
guilty knowledge
tial to
*
* *
Furthermore,
establish
exist.
intent,
accordingly
criminal
I think the
intent,
knowledge must
the evidence of
judgment
him-ought
as to
reversed.
clear,
equivocal.”
Curley
My
against
view
the evidence
line
court then
“Often the
added:
salutary principle of
the sound
and of
purposeful mis-
belief and
between honest
requires
law which I think
he
should
indistinct,
representation
be-
is fine and
go acquit
dissenting
well stated
guilt or
however lies
inno-
tween the two
opinion in
:6
Warner
v. United States
evenly
cence,
evidence is
where the
“Coming
tending
now
the evidence
guilt
innocence,
balanced between
prove
guilt
1 of
defendant’s
under Count
cannot stand.”
conviction
indictment,
and what
we find?
do
against
was much
The evidence
absolutely
positive
no direct or
-Estep,
against
weaker
than that
govern-
sole
evidence. The
reliance of
was,
re-
proof in the
cases
in some
two
is,
upon,
rest
mere circum-
ment
and must
* *
example,
spects, strikingly
For
similar.
does
*.
how
stantial
And
evidence.
Deluke
the members of
Estep
introduced
opinion)
prevailing
(the
writer of the
buy
urged
them to
stock
his church
attempt
justify
fact that the circum-
corporations.
intense
various
His
found
the record is
stantial evidence
greatly
in the venture
influenced
interest
support
On
the conviction?
sufficient to
-purchase the
of his church to
the members
mind,
that, to his
the circum-
thought
there
court said that
could
stock.
compared,
when
tend
stances
Estep
instrumental
no doubt
strongly
sustain the
than the
more
aof
scheme which the
the effectuation
-position
As this
innocence of defendant.
criminally fraudulent. But
to be
found
depend
more
cast
mind
proof tending to show
there was no direct
themselves,
circumstances
I
than
hoped
profited,
profit,
Estep
view
thought such a
except
might
stock
sale of
thought
I
rule to
could be taken.
which he
church of
was the
benefit the
proved
circumstantial evidence
be, before
subjected
He
leader.
founder and
must arise to such
anything,
this evidence
psychology
sales’
the same
proof
as to
dignity
exclude
and ev-
church, and
of his
his resistance
members
ery
than
greater.
nowas
I
thought
accused.
guilt of the
evidence was sim-
of circumstantial
theory
more
detail
recited
what
Having
law,
needing any
author-
summarized,
significantly ple
hornbook
702.
Cir..
60 F.2d
*14
does,
ity
support.
the books
in its
If it
Even the majority opinion in the Warner
rule, that cir-
says
this
laying
full of
cases
down
that “Substantial evidence was
requisite
fails
arise
cumstantial
that was more consistent with his
high degree
proof
guilt
no evidence
this
than with his innocence.”8 This is
proves nothing.
at
(and)7
all
with
accord
the court’s
this case
squarely holds
“Such, my mind,
law and the
is the
function of determining reasonable doubt
applied
pre-
rule to be
times
function,
vel non
jury’s
“is the
provided
sumption of
with
a de-
innocence
the evidence is such
permit
justice
as to
fendant stands before
bar of
reason-
fairly
able
to reach
by the
Who
mind
either
two
clothed
law not overcome.
say,
can
say,
who
this
conclusions.” Such
does
evi-
statement
far
so
dignity
from being
dence
case arises to such
either safe
or sound that I am
theory
to exclude
agree
unable
majority
must,
than the
defendant?”
deference,
with all
dissent.
supplied.
tion)
find,
Patent omission
least,
we should have to
States,
In Williams v. United
that
guilt
the evidence is more consistent with
App.D.C. 322,
351, 352,
F.2d
than with innocence. Warner v.
(the
“To
court s’aid:
sustain
Cir.,
convic-