*1 14 Ottо insists, however, pursuing that it was customary practice. a usual and business practice
Whether so or it is a
it must concede that a National Bank can safely engage as it can
rely assignor on its not to sue under the Probably
federal statute.4 such reliance justified assignor if its purchas-
the usurious interest rate to the er of the vehicle. No doubt Bank legal position
views status from a dif- ferent from that of this Court. It seems - reality to us thаt what the Bank is asking proba- this Court to hold is that bly the persons most numerous class in need of from the state and
national usury laws are removed protection by simple pedient using priсe” the term “time usury. That,
as a cloak to conceal we of petition course not do. The for re-
hearing is
Denied.
JONES, Judge. Circuit
I dissent. America,
UNITED STATES of Appellee, City, Lynn, New York J. Conrad Santiago al., GONZALES CASTRO et appellants. Appellants. II, Paul M. Debevoise Wil- Thomas W. 63, Docket 23654. No. City, liams, Atty., New York U. S. United States. Court of Circuit. Second HAND, ME- FRANK and Before Argued Nov. Judges. DINA, Circuit Decided Jan.
PER CURIAM.
charged
principal error
оn this
is that the
the wit-
for the
was so
nesses
trial,
paired upon
present
That,
financial
holding,
with state
institutions
than the
rather
practice.
disadvantage
to ns to be
real
compet-
whiсh the Bank labors
under
*2
beyond
of this
established
the decisions
satisfied
jury
have been
could
follows:
have often held as
court. We
accuseds’
a reasonable .doubt
guilt.
that in a criminаl
This assumes
judge
(1) The trial
commits reversi-
may
submit
not
prosecution the
error if
not instruct
he does
ble
him
jury
is
unless he
to the
jurors that,
in order to find
-the.
only
tes
satisfied,
that there
they
self
accused
must
guilt
timоny
the accused’s
guilt
that
beyond
has
conclude
his
been
that reason
inferred,
also
but
be
persons
proved
a
reasonable
might
satisfied
able
yond
doubt.
theory
This
reasonable
a
(2)
But the trial
commits
ac
postulate that
on the
is based
failing to
reversible error in
di-
a
entitled to
cused
accused,
rect a verdict for the
jury
be told that
that
failing
verdict
set aside a
any
they
fair doubt
have
must not
accused,
even
accused,
guilt
judge,
question
preliminary
is this
appeal,
guilt of
thinks the
that
answer. Whether
clearly
accused
not been
neеd
circuits we
all the
doctrine
beyond
proved
thoroughly estab
inquire, for
is the
it
doubt, provided only that the evi-
this circuit that
doctrine in
lished
enough
dence would have been
a civil action
go
jury
to the
in a civil action.1
instruc
is in. the
a criminal
As' we said in United States v.
given
jury that
to the
that must be
tion
they
Feinberg,
beyond
fair
all
must be convinced
“the stand-
A.L.R.
doubt*
necessary
ard of evidеnce
to send
objection
ex
that the
The
jury
a case to the
is the same in
voir dire means
on the
amined
civil
both
and criminal cases.”
Attorney
list of “subversive”
General’s
Valenti,
In United
v.
Stаtes
organizations
in United
we said:
Lebron,
F.2d
v.
States
requirement
be-
yond
charge
amply
sufficient
doubt is
di-
The
guilt
jury
of each
rection to the
not a
that
rule of
form
* * *
independ-
established
fendаnt
quantitative
ently
other.
be accorded
value
general cautionary
other than as a
Judgment affirmed.
admonition,”
means,
bluntly,
This
state it
Judge (concurring).
FRANK, Circuit
may be'jailed
death,
put
man
al-
filing
I am
result.
in the
I concur
though
concurring opinion
I want
this
court are
convinced that
disagreement
my
express
proved
man’s
has not been
majority opinion.
stated
doctrine
(i.e.,
reasonable doubt
are sure
occasions when
I admit
that no reasonable men would believe
up-
significance for an
will have
doctrine
proved).
that his
has been thus
fеw,
per
will be
justice
recently
come to
too inflexible
have
doctrine
.to
always
has been
has not
been
doctrine.2
few
court’s
those
*
United States
Becher
Becker,
v.
v.
Unitеd States
2d
Valenti,
A.L.R.
United States
States
Wig
Valenti, Cir.,
§more
in United
2. See
Costello,
Costello,
States v.
shaky
final,
no matter how
elusion is
accepted
our court.
foundation.
Wishnatzki,
*3
Cir.,
States, 2
360; cf. Frаina v. United
ra
dubious
This strikes me as most
of
28,
federal courts
255
appeal
35. Some
tionale,
F.
it assumes that
since
not now
state courts
intelligence
and some
judges, a
have more
flatly
accept
courts
state
it. Some
power
perceive
to
nice distinc
evi-
'reverse
will
state that
Supreme
does not rate
Court
tions.
guilt beyond a rea-
does not shоw
low,
dence
judges
does not
appellate
federal
engage
doubt.3
ability
sonable
Some
they lapk
in such
the
to
re-
drawing.
courts
that a conviction
requires
line
similar
“incоnsist-
versed unless
perform
he sits
to
that feat when
hypothesis
every
of
with
ent
jury.7 It re
criminal case without a
* * * innocence”,
or “unless
quires
dis
make
unlike
to
a not
facts which
substantial evidenсe
proceeding
in denaturalization
tinction
guilt,”
every hypothesis
clude
(which
judge-tried);
for
his decision
like.4
government
the
will be re
such a case
measuring
if it rests
on
of this court’s
The rationale
merely
preponder
up
the standard of a
to
it)
(as
best as I can understand
ance of the evidence.8 Consider also a
judge-tried
frequently
as-
difficult to
be this:
It is
for the enforcement
suit
(a)
nicely
certain
alleged voluntary trust,9
or one to
by preponderance
proof
of the evidence
instrument;
establish a lost
such and
proof
(b)
and
several other kinds of
doubt;5 despite
that “evidence
the fact
judge’s
will be reversed unless
decision
upon
merely preponder-
an issue which
convincing”
proof
(or
“clear
ates is indеed different from evidence
like).
patent
In a
doubt”, yet,
which excludes all
long
as “in
prior
patented
decision
use
as
too
run
line
them is
between
device must be reversed unless
judgеs
day
day use,”6
thin
leaves no
doubt.10
intelligently
line;
therefore
draw that
judges
impose
jury-tried
that difficult
It is true that seldom will a
jurors’
jurors,
con-
task on the
criminal
arise where an
,
People
Vehоn,
See,
g.,
phor.
Corp.,
Ill.
3.
e.
340
See Larson v. Jo Ann Cab
511
518,
Cir.,
can be sure of the evi of the Court said: whether beyond-a-reasonable- dence to effect meet evidence was such as usually doubt standard. For a determi overcome reasonable doubt of insufficiency depend nation court, of such was for the evaluation of the cide.” But that statement does not as- excep- witnesses demeanor sert whose that never can there be an jury observed, appellate but whom tional case in which an hear. should court cannot see reverse con- *4 However, just as, few extreme vinced in some than that less determining cases, required rule; court —in the reasonable-doubt apparently that an error harmless— several at the trial was Circuits have it, may; alone, printed read from as shown record act several of the cases supra 4). (note cited firm defendant’s its conviction of the guilt, U. Kotteakos v. United Desрite foregoing, I concur in the S. so majority’s case, decision in the instant in some few extreme testimony because I think the of unim- similarly convinced, from be peached strong witnesses sо that we can- printed alone, evi record of these defendants prove dence did not suffice to proved beyond was not yond a reasonable doubt.11
Consequently, I think this court should give
make its doctrine more elastic and
real substance to the reasonable-doubt For, appropriate since a criminal action involves a man’s ought liberty,
life or we in such an action, sanctity accord to stare de much by adhering precedent cisis to a favora Wayne Hugh TRUST, EASLEY W. H. prosecutor, ble to the if we now consider Easley, Trustee, Petitioner, markedly unreasonable, undesirable, unjust. discussion and сitations COMMISSIONER OF INTERNAL Scully, Cir., United States v. REVENUE, Respondent. (concurring opinion). For that Roger TRUST, Kent EASLEY W. H. obliged reason, while in civil suits I feel Easley, Trustee, Petitioner, to follow recent decisions of this court disagree,12 with which I I feel free COMMISSIONER OF INTERNAL dissent of our decisions based REVENUE, Respondent. on established rules adverse one ac No. 14199. crime, cused of I when think those rules unjust. apply If this court cоntinues to United States Court of doctrine, that, hope soon, some Ninth Circuit. Supreme Court, because of the con Dec. area flict between this Circuit Circuits, other some decidе what sure, correct To rule. Pierce 251- Prince, 11. Cf. Gindorff v. testimony patently considered 898, where, in a civil we re credible in the circumstances. rejected because we although in Rie- supported testimony Co., Cir., oral ser v. Baltimore & O. R. witness he saw and heard —because