221 F. 205 | 8th Cir. | 1915
The writ of error in this case questions the legality of the trial of the defendant below, Harry D1. Todd, for participation in a conspiracy to use the mails to defraud certain creditors of the Auto Specialty Company, a corporation, by purchasing of them on credit, by means of the corporation and false representations of its financial standing, goods and merchandise with the intention never to pay for them. Todd was the president, Fenn the treasurer, and Ulmann the attorney of the corporation. They were jointly indicted. Fenn turned state’s evidence,. and Todd was convicted, on five counts of the indictment, and sentenced to imprisonment in the penitentiary three years and to pay fines to the amount of $1,250.
“The shipper accepts this order and fills same at his own risk, billing goods direct to purchaser, and does not hold the Auto Specialty Company responsible should the buyer refuse goods, or fail to pay for same. This order approved by Auto Specialty Company, Inc.”
At the trial the defendant claimed that the acceptance of such an order and the shipment of the goods thereon to the Specialty Company constitute a consignment of the goods and leave the corporation exempt from liability to pay for them, and the plaintiff insisted that it effected a sale of the goods and charged the Specialty Company with liability to pay for them. To establish the latter claim the plaintiff introduced the testimony of John E. Dykes, who, on behalf of John G. E. Dykes Company, Incorporated, had received and filled such an order by shipping the goods to the Auto Specialty Company. He testified in chief,, in answer to the plaintiff’s question whether or not the goods were sent on consignment, against the objection of the defendant that this ques
‘•Q. But you received the dividends through the trustee? A. We replevined. Q. Some of the goods? A. And they were sot aside.”
On cross-examination he testified that through the attorneys for his corporation, Ellis & Yale, a replevin suit for the goods was commenced, that he was not present when the suit was brought, and that he did not remetnher whether or not the ground of the replevin suit was that his corporation had never sold the goods to the Auto Specialty Company, but that it had sent them to that company on consignment. In this state of the case the plaintiff produced from the files of the proceedings in bankruptcy against the Specialty Company, which were instituted some months after the order of the Dykes Company was filled, a reclamation petition of the Dykes Company, signed by that corporation and by Ellis & Yale, its attorneys, and verified by Ellis. In this document the petitioner had alleged the facts which the plaintiff pleaded in the indictment against Todd for the purpose of establishing its contention that the defendant had participated in the scheme to use the Specialty Company to buy the goods of the Dykes Company and others with the intention never to pay .for them, and prayed that its goods might be returned to it. To the introduction of this petition in evidence the defendant Todd objected, on the grounds that it was hearsay, that it was not filed in any proceeding to which Todd was a party, and that it was not binding upon him. But the court admitted it “as explanatory of the matter brought out by the plaintiff relative to the character of the claim and upon which it was based; the theory of the defendants,” said the court, “as stated in the objections made to the court, being that these orders do not show purchases, as a matter of fact, but simply consignments, in which the title is retained by the purchaser. This is admitted to show upon what the claim in this particular instance was based, tending to rebut that presumption.”
■ But how was the petition of the Dykes Company, prepared and verified by one of its attorneys and filed in the bankruptcy proceeding against the Specialty Company, evidence against the defendant Todd to overcome “that presumption,” the presumption arising from, the orders that the goods were consigned and were not purchased ? And this was the ground on which the court below declared that it admitted the petition. Dykes had testified that the accepted order evidenced a sale and not a consignment. . Even he could not have introduced his own written statement in another proceeding to that effect. It would have been a self-serving statement and incompetent. But this was a case and a trial to which Dykes was not a party. It was a criminal proceeding brought by the United States against Todd, and so far as the record discloses Todd was not present when the reclamation petition was filed. He never made it, or admitted its truth, nor was in any way bound by it. Not only this, but this petition was not even a statement or admission of the witness Dykes. He had testified that he was not present
Other alleged errors are specified in the assignment of errors, but as the questions they present are not likely to arise in a second trial it is useless to consider them.
The judgment below must be reversed, and the case remanded to the District Court, with instructions to grant a new trial.
And it is so ordered.