*1 capacity in her substitute herself though she representative, personal even a representative took out letters as Rule action was commenced.8
after the Pro Civil
25(c) of Federal Rules of a substitution
cedure also authorizes action, takes assignee cause pending.9 assignment while the action emphasize the illustrations
spirit Surety Com New Rules. complete pany right had the to have parties adjudication
final of all claims all might the end that not be lmrrassed different claimants. numerous actions adjudication com
An under the amended complete adjudi
plaint final would be a part A failure on Kilbourn’s to es
cation. against action the Sure
tablish a cause of spurious
ty on the Company on its bond payment of the balance of given
checks wholly and com
the Burtrum claim Company from
pletely Surety absolve anyone liability to Burtrum or else
all attempting
claiming or to claim under action set out in count two.
the cause of that Kilbourn was the
It is our conclusion interest; the amended party
real filed;
complaint properly and that judgment summary should have
motion
been overruled. of the trial court is ac- judgment
cordingly reversed and the cause of action proceed directions to
is remanded with expressed
conformity the views here-
in. al v. SCHILLER et STATES
UNITED 133, Docket 21861.
No. Appeals Court of States Circuit. Second
Argued Dec. 1950. 6, 1951.
Decided Ry. Sternberger Missouri, & Texas v. Continental v. Kansas Co. 9. See also 8. Mines, Co., D.C., Wulf, L. & Reduction 33 S.Ct. Power U.S. F. 293. Ed. *2 Moskovitz, defendant- & Graubard Kostelanetz, of
appellant Schiller; Boris counsel. Webb, York
Patterson, Belknap New & City, Hoff- defendants-appellants Julius Inc.; Gardens, man and First Terrace Cram, L. Robert Patterson and Ambrose P. Jr., City, New of counsel. York New York
Irving
Saypol,
Atty.,
H.
U. S.
City,
plaintiff-appellee; Harold
J.
Raby,
City,
York
of counsel.
New
HAND,
Before
N.
AUGUSTUS
FRANK,
Judges.
CLARK and
Circuit
Judge.
HAND,
AUGUSTUS
Circuit
N.
The
was in one count and
indictment
Schiller, Hoffman and First
charged that
Gardens, Inc.,
York cor-
a New
Terrace
poration
the Presi-
which
was
Hoffman
dent, conspired to
defraud the
States,
governmental
in
exercise
its
Emergency
administering
function of
Program ustly
j
Rent
and free from
Control
influence,
corruption
improper
(1)
and
submitting
Housing Expediter
false
to
petitions
management
as to the amounts of
expenses
fees
First
and
incurred
Ter-
Gardens;
race
(2)
having Hoffman
pay
Terrace Gardens
to Schiller
First
$2,000with intent to influence his action in
petitions
connection with
and to in-
approval
requested
duce him secure
increases,
rent
ac-
(3)
having Schiller
cept
$2,000
approval
and obtain
of the
requested
increases, though
rent
Schiller
Ter-
know
Hoffman and First
race
would not be entitled
them.
Gardens
payments
to the
con
cededly
Hoffman
made
was
Schiller
payments (were they
whether those
loans
made to
or
were
influence
official
gifts)
Schiller,
conduct
who
Area
was
Rent
Attorney.
plainly
Control
There
was
support
enough
of the
evidence
indict
jury,
go
ment
who
all
found
three
guilty.
rely
defendants
defendants all
following
(1)
judge’s
on the
errors:
in the
charge;
cross-examination of
error,
Schiller.
addition claims
Schiller
of a refusal of
trial
(3) because
court
return
suppression
order the
of his
diary entries
received
evi-
object to the cross-
dence,
appellants
him of
next
a denial to
(4) because of
on the
diary.
examination of
pre-trial inspection
an ob-
after
in his
behalf and
stand
own
Coxe, to which
charge by Judge
After a
jection
overruled,
admitted
made,
jury returned
*3
was
the
no
paid
in or
March 1948 he had been
about
for
to
asked the court
the courtroom and
tenant,
for
by a
in return
prospective
$500
judge
“conspiracy.”
a definition of
procure,
procure,
which he
and did
was to
portion
charge
original
reread the
of his
apartment
admitted
an
her.
also
He
conspiracy
embodying a definition of
which
pros-
payment
by another
another
of $500
Then, following
had
given.
he
there
an
tenant,
service, in
pective
similar
a
by
requested
instruction
the defendants
questions had been
1949.
acquit if
concerning
duty
the
not
jury’s
preceded by
whether the
question
a
as to
doubt,
beyond a
he
satisfied
reasonable
in
acts
violation
enumerated above were
gave
following additional instructions:
the
Law, Section
of
York Penal
the New
* * *
conspiracy,
“The
a
Court:
judge.
It
excluded
the
was
by piecing
conspiracy,
such as this
is shown
appears
previously plead-
had
that Schiller
evidence,
together the facts and the
if it
the New
guilty
ed
to such a
of
violation
is
you
found
was—and
have all the
there
Law,
judgment
no
York Penal
but that
point
evidence
common under-
on that
—a
plea.
against
on
had been
him this
entered
standing,
of
as
the
a concert
action
pieced to-
things to be
That can
done.
be
ques
previous
It is claimed that the
gether by
from the facts as to
inferences
plea
jury
before the
brought
tion
Schiller’s
you
that. And
whether there was
here
proper subject
guilty,
of
which was not a
evidence, particularly as to
have heard the
judgment
of attack
had been en
when no
money
par-
passing
the
of this
these
argument
thereon. We think
tered
this
times,
together
and that
with all
ticular
proof
of crime to
confuses
of conviction
n ofthe other facts in
the case and all the
it
a witness who has denied
contradict
testimony
something
is
which should be
general
of a wit
with a
cross-examination
jury
purpose
the
of
considered
the
affecting
credibility.
on matters
his
ness
determining
there was such a con-
whether
government
Although the
would have been
spiracy.”
by response dealing only
cred
bound
a
with
argue
ibility
a
record of con
Appellant’s counsel
the
unless
had
that
court
offer,
viction to
the cross-examination
supplemental instruction was in
was
foregoing
disrep
permissible
it dealt
of his
because
judge
effect a statement
tending
impugn
or criminal acts
opinion
were utable
that Hoffman and Schiller
veracity.
we
conspiracy charged
Even if
should as
guilty of the
and that Schiller’s
necessary
jury
of sume
a defendant should be treated
had all the
evidence
that
leniency
ordinary
conspiracy.
supplemental
an
instruc with
than
wit
that
more
collaterally
veracity
attacking
quoted
ness in
his
which we
did not bear
tions
have
crimes,
prior
Wigmore
III
interpretation.
proof
no
such
[see
(3rd
opinion
alleged
891(2), 983(4)],
in
Evidence
Ed.)
that
on
where said
n conspiracy
here confessed
established. At most
the acts which Schiller
were
had been
properly proved to show that his motive
only
“alleged”
the word
omitted
he
accepting
regarded
any
in
loans
his co-defendants
have been
rational
supplemental
testimony
innocent. His
he
implied. His
state
not
that
jury
was
as
prospec
had received commissions from
read in connection with his
is to be
ment
in
jury
in
he
tive tenants for services which were
charge, which
told
original
penal
pro
judges of
a New York
law
“the sole
the facts
they
violation
that
were
hibiting
charges
excessive
connection
the inferences derived from
and of
credibility
agreements
with rental
tended to show
the witness
and of the
facts
Moreover,
an intention to
appellants’
that he had
use
office
counsel never
es.”
they
disregard
regulations
control
clear to the
were
of the rental
made it
As
objection
case at bar.
Professor
raising
linguistic
situations like the
such
necessary
says:
not here
they
Wigmore
“It is
attempt.
now
statements
objected
look
general
for a
scheme or to dis-
to the admission of these entries
system
acts,
cover a
on
ground
they
united
in all the
irrelevant
attempt merely
ac-
proof
to discover the intent
because there was no
that Horowitz
companying the
question;
person
act in
the was the same
This
Hoffman.
prior
acts,
doing
overruled,
other similar
whether
properly
was
so.
clearly part
not,
of a
In
opinion
scheme or
is useful
our
enough
go
was
there
as reducing
possibility
question
identity
act
persons,
done
intent.” two
was
with innocent
produced
for Schiller neither
Wigmore
II
(3rd Ed.)
Horowitz,
Evidence
nor
he was.
§
remembered who
Schiller makes
further
ob-
We do
enti
*4
jection that there was an unlawful search tled
suppressed
tO'have the diaries
as the
kept.
and seizure of two diaries which he
fruit of an unlawful
never
seizure. He
diaries,
published
by
while
the Real
renewed
suppression
the motion for
of the
of
Estate Board
New York and contain- diaries
Judge
only
Coxe had
denied
ing
matters,
purely personal
were also
some
premature,
though he could and should
concerned with
relating
matters
to his have done
Judge
ruling
this after
Coxe’s
on
attorney
work
for the Area Rent Office
original
his
Irrespective
motion.1
of this
of
Housing Expediter.
the
On their face
procedural defect,
kept
the entries were
they appear to have been used
record
diaries
used
record
govern
Schiller’s
engagements
persons meeting
Schiller
engagements.
mental
We
the diaries
at his office for official business and to
as a whole
government property
and
record
appoint-
Schiller’s other business
any
event there was a
showing
sufficient
ments
meetings. They
and
were left
the entries introduced in evidence
Schiller in a desk in the Area Rent Office
dealt with official duties.
matters as-
Such
he, being
when
then
investigation,
under
adjustments
rent
and recommendations re
took a leave of absence which ended with
garding the same were within his general
resignation.
his
Schiller
he
claimed that
duties,
performed
whether he
rightly
them
did not remove the diaries because at the
wrongly,
or
at lunch or elsewhere. Under
time
left
he
his arms were loaded with
circumstances,
those
we think
govern
the
personal property,
other
government
acting
ment was not
unreasonably in re
investigators had
him
told
he could return
taining the diaries for the trial and intro
property.
the
rest
ducing
Compare
selected entries.
Prior to the
trial motion was made
Cir.,
Davis,
140,
States v.
2
151 F.2d
af
Judge
before
Coxe
Schiller under Fed
grounds,
582,
firmed
other
328
S.
U.S.
66
eral Rule of Criminal
41(e),
Procedure
18
Ct.
amine them. only, and credibility access given places he any being in issue his detriment ed way impeachment, prosecution, earlier. to them only. veracity attack his character judgments foregoing For reasons the Cross- 3 Wigmore, 891(1), 925. See §§ are affirmed. miscon- past acts of examination as qua ac- may prejudice duct the defendant (concurring). FRANK, Judge Circuit eyes extent to an cused in the of the because, al- am somewhat troubled I may have outweighs value far an- though sustained credibility as evidence the issue “Now, Schiller, isn’t Mr. question, reason, Wigmore as a For that witness. 3, 1948 or it a fact that on about suggests impeachment should such Ander- Estelle G. you from Mrs. received strictly of the more in favor be limited currency in return son the sum of $500 ordinary case of the accused than procure and did you agreed for which 983(4), 987. Wigmore, 3 witness. See for her (cid:127)procure apartment in Manhattan Unit- Wigmore, (4); Gideon v. Cf. § Penal (cid:127)in violation Section 429-430; Cir., States, 52 F.2d ed *5 making it of New York Law State App.D.C. Columbia, 45 Ellis v. District of ques- that?,” subsequent a crime do 384, 388. permitted to be tions etc., money, in the accepting .answered as to Since, Criminal under Federal Rules plainly question, sug- former light of the 26, are Rule U.S.C.A. we Procedure 18 had the defendant gested to the that obliged decisions not to follow state he had not (cid:127)committed other crimes when that we matters of evidence unless believe convicted. Nevertheless fact been I correctly principles of they reflect “the may properly reversing since we avoid * * * light law in the the common that defendant’s the answer showed experience,” think we reason and I motive or intention was innocent adopt suggestion. Wigmore’s While should accepted money from codefendants. 'he permissible scope questioning of such 302, Wigmore 343. The (1940 ed.) §§ largely the trial is within the discretion of intention was issue of defendant’s prosecu do judge, I not believe that part (cid:127)plainly his defense relevant since tion, pretext attacking on the sole cred money on his contention rested ibility, may fairly objectionable use an and taken him him had been offered to suggest past the ac question acts of aas loan. cused were criminal when he has not been however, My based their colleagues, past have Instructions for those acts. convicted offending ground that by disregard additional .affirmance on the by way proper past of im- question misconduct consider defendant, a witness. To solely credibil peachment of the accused’s the issue extent, likely prepared ity am not to concur. enhance as I as a witness are as 'True, commonly impression that an accused jury’s general said diminish the it is impeached, should poor who the stand be the defendant sort takes witness, by for the eliciting testi- if not other be other acts like convicted Gray charged. v. mony on cross-examination crime United States him Cf. 870-871, misconduct, son, Cir., 863, concur Wig- 166 F.2d prior acts of Wigmore, however, page opinion, and cited therein ring cases more, 889-890. 4; United v. States Antonelli statement note broad two re- this (cid:127)qualifies Cir., Co., 155 F.2d 655— (as here) Where the accused Fireworks spects: opinion. dissenting good general issue not raised the has