*1 DUFFY, Judge, . Chief Before ' SWAIM, FINNEGAN and Judges. Judge. DUFFY, Chief up- Defendant was tried and convicted charg- Count of indictment which ed defendant and one Sims “know- ingly did and with
negotiate transfer and: Savings Bank Chi- Harris Trust and cago, value, Illinois, for containing false re- statement- as to the ’ ceipt of at *. and that negotiate time the defendants did afore- transfer the said said, they there well knew it to contain statement: a false of' Section Title United States [49 121].” Code On motion government dismissed as to defendant Sims. As to the trarisáctions described in the indictment, nego- deny defendant did not *2 Anderson, During period same that the tiating- bill of a and working out the Schultz and Keller were a Corporation which contained Carrier to in the indictment transaction set out herein, the the statement as to making arrange- strenuously Carrier was also insisted but he purchase hundred tons ments to fifteen His de- defraud. so without intent to through scrap copper the defendant. ficti- knew of the Carrier fense was that prepared advance defend- Carrier was to bill either the and tious character of buy copper, $750,000.00 but ant to this agreed suggested it. Defendant it to through govern- Savings argued the deal fell because a Harris Trust and that disbursing prohibited acting which merely ment order was issued as a was Bank agent Carrier, further conversion deals. that if trans- for and proven, was to Carrier and were it fer testimony the Most of as to the Harris. not to detailed was transactions hereinbefore University graduate, Defendant, a rejected The deals were the Court. previous record, had no criminal with conditions, risky ordinary and under Chicago inspector for the Ordi- been an completely same were unorthodox. The an in radio nance District and instructor with de Carrier officials who dealt the engineering Army Air Force the ques in the here in fendant tion, transaction Training In Technical Command. who carried out were the officials war, of the defend- after the conclusion these unusual business transactions. manufacturing ant a business. started They period occurred within a of about all organized Later, he and his wife “Manu- days seventy prior transfer of the to the Representatives, Incorporat- facturers’ question. Under cir in the ed,” bought and sold and oth- steel case, cumstances of this where the products supply. In er March, 1950, in short element, it of the defendant was a vital fully leased a defendant was error to have excluded these transac rolling equipped Indianapolis, In- mill in jury. tions from the employed expe- diana. Defendant an operate production rienced steel man to During trial, in the course of the plant. ruling upon objection to certain testi mony, presence Anderson, the trial in In court said defendant met one jury: “My viewpoint is that it the Director of Procurement of Carrier which, Corporation time, particularly not harmful because if a at that was des- charged perately man were with—now this is far in need such could be of steel thing, produced suppose plant. in distant but a man were the Indiana Anderson committing charged robbery, very with a and testified: “Those were critical times day getting standpoint, from a then the next money back, every he went and took the material and might actually rolling of it. into mill cent He that could instance, something produce in such an steel be found was still that de- lighted though every very me even he returned cent of much.” Then followed promptly series of it.” Defendant’s counsel ob business transactions between jected. Carrier and defendant which, ordinary times, in would have been The illustration used court was considered unorthodox if not fantastic. fact, prejudicial. in and In unfortunate charge jury $70,- termed Carrier first advanced the court defendant Later, “inept.” 000.00. instructed “Coun- Anderson took it The court Keller, correctly excepted Corp., the treasurer for the defendant of Carrier sel gave excep- $44,000.- I who remark and sustained the defendant a check for disregard I for 315 and instruct the tons sheet bar not at that purchased way I did in time it because not mean or even located case, type case, compare defendant. Other transactions followed this of a type actually which showed that Carrier was that case. It would be more financing suppose operations. say, proper probably in his Schultz, defendant, un- go convicted somewhere over to Peacock’s substance, which, got big my in, der that count slip diamond hand charges “knowingly ring after home and took it day thinking over, I took it tent to and transfer- next defraud” it *3 Trust and red to and the Harris Defendant’s counsel back. containing Savings Bank, again objected. receipt of a false statement as to the very little The second illustration goods. is, quoting of it di- The short likely improvement It on the first. rectly from “That the defendant’s brief: im- dramatic remarks made a court’s and transferred jury. They pression con- on the Corpora- value a bill of to Carrier fusing over-riding wheth- issue of statement as tion contained a false had an intent to defraud. er defendant receipt goods, by of We think the illustrations used freely trial; admitted at the prejudicially Sun- court were erroneous. any so with intent denied. he States, Cir., F.2d United 8 19 derland v. His defense was that Carrier exactly him asked to do what he did We have considered defendant’s claim * * *” (Def. brief, 50). In other variance, of but overrule same. words Schultz insists did not have the Judgment reversed and remanded for required state of mind under the statute. a new trial. proscribed by the actus reus Here § negotiating 41 is the or (concur- FINNEGAN, Judge lading containing a false state- ring). goods. receipt ment as to the This III of the here on re- Count by prosecu- element was established 41 view is bottomed on section of an Act guilt tion. But for criminal there must Congress, of Stat. (here be a union mens rea (1952 ed.) relating lading, to bills defraud) and the actus reus. The critical providing phases in its relevant here: part of this case lies in the state any who, knowingly person “That mind with which Schultz acted. Yet evi- * * * with intent or to defraud dence, parol documentary, proffered * * * nego- like intent or with concerning dealings the defense be- tiates or transfers for value a bill rejected tween Schultz and Carrier were which contains statement as level; at the trial this was For error. or as to reason, among others, some of the matter, who, other or confusing, instructions were es- defraud, violates, tent or fails pecially compounded when with certain comply with, or aids presiding illustrations offered of, comply any pro- or failure judge. Act, vision of this shall be Finding misdemeanor, and, upon reversible convic- errors committed below, punished I think shall be we for each of- have no other course judgment by imprisonment appealed than to reverse the fense not exceed- ing years, or the case five a fine and remand for a new trial. not ex- Ac- ceeding cordingly, $5,000, (Italics or would both.” refrain from comment- ing delineating on, added.) the facts.