*2 Dayton associated he come to become MILLER, PRET- K. Before WILBUR ca- with Aviation an executive Judges. Electric in PROCTOR, Circuit TYMAN and accepted pacity. The invitation was Judge. MILLER, Circuit WILBUR K. January, 1940, was made secreta- *3 appellant, ry-treasurer and the corporation Blériot Lamarre H. indicted Meyers, jointly E. trans- Bennett 224 Ballaou certificate shares for stat- Columbia violating for the District ferred valuable considera- without 1 suborna- and ute denounces A he became which tion. months thereafter few indict- president counts company. tion thereof. Three many sepa- with as charged ment Lamarre in beginning From 1939 modest its a sub- before perjuries in rate operations Corporation Electric Aviation of the United committee of a committee expanded substantially rapidly. It ob- and investigate the constituted to Senate States large parts furnish tained contracts to program, and three more defense national corporations producing aircraft engaged in suborning the Meyers accused counts Army. Meyers ad- for the United States perjuries of his codefendant. capi- working for vanced considerable sums charg- pleaded guilty company’spromis- all three tal and took therefor 19, arraigned sory pledge on December es when he notes which were secured certificates, in- 1947, days the return of endorsed delivery and him of a few Meyers plea capital blank, evidencing entered all its stock. dictment. jury guilty and was tried before appellant was to Wash- transferred of the United States District Court ington year became in 1941 and the next conclusion District of Columbia. At Deputy of Aircraft of Procurement Chief he moved for government’s evidence, Army Air Force. and Aircraft Parts de- acquittal, which the judgment court Meanwhile, operating Aviation Electric was in- Meyers did not take stand or nied. by the successfully profitably and so that Having been found troduce evidence. had been re- end 1942 loans three guilty each of counts under profits long paid. Large were earned him, against appeals. continued, but the termination of the war demand for an officer in the United reduced the actual hostilities so 1939, corporation Army. products In was dis- while stationed at its States Dayton, Ohio, organ- Wright Field, September, near 1946. solved corporation ized under the laws Ohio there had Desiring ascertain whether Corporation, and Electric called Aviation fraud, waste, corruption, been instances of treasury the sum into its of $500 profits ineffi- mismanagement, excessive or capital consisting cover its authorized effort, entailing ciency in nation’s war having par 250 common stock shares of expenditure of billions as it did the hurried direction, a certifi- value each. At $2of defense, the United national of dollars for was issued to Miss cate for shares investigating June Senate created States Wright Field, employee an Ballaou, reference has committee to which remaining shares were divided between gov- inquiry into course of an made. David and one Robert L. Pine. large airplane sup- Johnson with a ernment contracts newly organized engaged com- plier, appellant testified before that manufacturing parts and accessories hearing developed during the mittee. airplanes, on hand and soon had orders Corporation had been Electric that Aviation Corps Signal from the of the United States government work a sub-contractor on Army $20,000. aggregating about president its had been that Lamarre In order acquainted 1946. its dissolution had become 1940until any, early connection, if Lamarre and his wife as 1936 to ascertain what Electric, Aviation apparently appellant had had with 1937 and was fond of them. subpoenaed Lamarre, who 1939, he went to see Lamarre in the subcommittee Late 4, Saturday, and Mon- October California, employed testified where the latter was 6, day, in 1947. airplane company, suggested October 2501, 22, Title D.C.Code § financially nett E. interested brought about in or Electric genesis us. with the'Aviation before connected of the case now Ohio, Corporation Vandalia, Dayton charged Three of indictment’s counts 1943, 1941, 1942, during years 1940, willfully- (1) knowingly and that Lamarre: 1947; being ques- 1945, 1946, not finan- falsely testified “was tioned regard, Blériot H. cially interested in or connected October October Dayton Corporation Aviation Electric wilfully con- the District of Columbia Ohio,” Vandalia, during trary to his said oath 1947, inclusive; (2) knowingly and will- financially Bennett E. was not in- *4 fully falsely testified that a Cadillac auto- with the Aviation terested or connected Mey- purchased Washington mobile Corporation Dayton Electric and Van- ers, Aviation Electric Cor- bg dalia, Ohio, any during those or poration, corporation purchased for the them, truth, whereas in as Blériot H. La- use; (3) knowingly and for its and will- knew, marre Bennet E. was imam $10,- fully the sum daily interested in and connected with the 000, paid by means Electric’s Aviation Corporation said Aviation during Electric checks, Mey- decorating furnishing years 1940,1941, 1942, 1943, each and all the gift Washington apartment ers’ “was a 1945, 1944, 1946 and 1947.” himself, Lamarre.” Blériot H. Appellant’s earnestly counsel assert and appellant Although the con ably argue testify that Lamarre did not counts, victed three each of which before the subcommittee that charged suborning one La financially interested in or connected perjuries, only marre’s he received one Electric; sent that, quite with Aviation but to being true, ence.2 judgment must contrary, Lamarre told the subcommit- be affirmed if properly con Meyers actually tee owned the business. any victed one the three counts founded, If contention be well it is against consider, him.3 We shall neverthe complete defense the charge to less, appellant’s assignments with Meyers of error perjury alleged suborned the respect all to the counts. first elementary count. that one cannot be convicted of perjury suborning As Meyers’ interest in or financial committed; say, in fact tois connection with Aviation Corpora- Electric there can perjury be subornation if tion. perjury. equally there was no It is true subject, On this the first count that one be of suborning cannot convicted the indictment includes following: perjurious if alleged statement “ * * * jhe In course of his [Lamarre’s] per- was not made alleged testimony it became material whether Ben- juror. 2 imposing sentence, judge In containing the trial counts, several “ ** said: The indictment consists upon each, guilty with a verdict of will per of three counts subornation good, sustained if count jury. The defendant was on all support convicted judg sufficient itself counts, however, three counts. All three Ohio, 431, ment.” 438, v. 297 Whitfield U.S. transaction, they 532, involve same 534, 56 S.Ct. 80 L.Ed. 778. parcel part all States, same 140, transac v. Claassen United 142 U.S. fact, pos 146, tion. 169, 966; have 12 S.Ct. 35 L.Ed. v. Evans allegations States, sible to have embodied all 584, 595, United 153 U.S. 14 S. quite single count, properly, 934, 830; in a Ct. 38 L.Ed. Abrams v. United lucidity clarity, States, 616, 619, 17, the interest of 250 40 U.S. S.Ct. 63 allegations 1173; States, Government framed those L.Ed. Brooks v. United separate 432, fact, 345, three counts. In view of the 267 U.S. 699, 45 S.Ct. 69 L.Ed. however, substantially just there is A.L.R. 1407. 37 See also v. Gibson offense, going impose States, U.S.App.D.C. 81, 84, Court United single going impose sentence and is not 149 F.2d and cf. Kinnison v. separate States, U.S.App.D.C. 312, sentence on the three United counts.” frequently A rule F.2d 403. stated the Su- preme judgment upon Court is “that a unorthodox, unpa question, you understood all how asked “So No matter purposes, practical evi of the time

triotic, reprehensible criminal the or business?”; [Meyers] conduct owned the may tend to show dence first been, by saying, “That under the that Lamarre answered to have his conviction right,” if Lamarre did not and then continued with other count cannot stand testify charged that statements count to that effect. fact as the So, threshold of our consider did. at the testimony, This from its con- bit of taken count, must decide we ation of the first text and read without reference to con- subcom Lamarre in told the whether fact sideration remainder financially interested mittee was not evidence, supports appellant’s contention Electric. connected with Aviation falsity, that, regardless of truth or testify, did so then If be found that he the statement which the count attrib- whether the state pertinent to see it will be Lamarre, simply did not uted false; false, and, ment was true or if alleged said, but definite- what he is have Meyers suborned it. whether So, ly exactly contrary. if La- stated quoted question were marre’s answer represented *5 Whether subject, have said we should not was the subcommittee that difficulty appellant’s argu- accepting no in financially connected with interested in or ment, not by finding holding and in that Lamarre did company is to determined be perjury charged against fairly commit the meaning significance which is that, therefore, Meyers wrong- him was be to all Lamarre’s attributable ly suborning convicted of it. stenographically A fore the subcommittee. put reported record of that was coun- We first to the subcommittee turn is before us. in evidence and Lamarre, in examination of the course sel’s upon which he made the statement of which Appellant's insistence -that Lamarre did appellant a defense the first now relies as charged him 'not what the first count count, order see whether the con- exactly opposite, in saying, limits the absolute text4 of the statement fact was is based on the Lamarre blank, him them them. endorsed? you borrow security. Senator. course of money on them? endorsed “Senator “Mr. Lamarre: “Mr. Lamarre: “Senator “Senator “Senator “Mr. Lamarre: “Senator $ ^[*] “Senator “Mr. Lamarre: borrow agreement say? borrow not there where they Now, Lamarre: any certificates? statement ^[*] $ so that You endorsed the money, Ferguson: Well, what would Ferguson: It Ferguson: endorsed Ferguson: from him? Ferguson: Ferguson: When did doubt money why colloquy: was about $ ^[*] did they In about Yes. Meyers had access to General The certificates Meyers’ stock, from him and was theirs, the stock you ^[*] $ could be time Did Now, From whom? How much that, not Meyers. certificate they you that? was ^[*] say that, that was used you put wanted borrow there? there were give was you did ^[*] ^[*] in ity? $10,000. keep them? 1940? paid gave mean the total or tively paid off. stock that? endorsed these certificates and to General “Mr. Lamarre: “Mr. “Mr. Lamarre: “Senator “Mr. “Senator “Mr. “Mr. Lamarre: “Mr. “Mr. “ Senator n “Mr. Lamarre: “Mr. Lamarre: “Senator “Mr. 1941, loaned the off, him all certificates at Lamarre: Lamarre: Rogers: Lamarre: Rogers: Rogers: Meyers. Ferguson: Ferguson: 1942? Ferguson: Ferguson: then went back company $10,000, the certificates time; then, And how It was He Yes, In 1940. I do not know. just during There was Until see; do actually When it All did at one What 1940, reduced not know when the loan was right. Now, right. long was that? gave when 1940? over —You time. month in as secur- he, again had the probably entirely did he after them posi- you you truth; have when appears proceeding meaning say, which it states the that is to setting in which recantation perjury alone. does not de- standing following making appears stroy it criminality. shows its statement United States Nor- v. ris, 1937, 564, occasion referring to the Lamarre U.S. S.Ct. large part stock why 1940 when a L.Ed. 808. We see no reason just principle endorsed apply greater transferred should even to serve as collateral. force when back follows testi- truthful is, however, perfectly mony evi- clear from the and so is the last unrecanted in- dence as whole that Lamarre did not present case, choice of its author. meaning tend to understood that from even be (that Meyers if true statement practical 1940 until 1947 for all was for all purposes intents and the owner purposes For the owner of the business. of the business) given implica- be the full example, asked, “It appellant it, Lamarre was tion and effect which finds belonged Meyers all the and regarded so be applying [the stock] all the (cid:127)time?”, “No, answered, sir, not.” involved, it was followed falsehood asked, “Well, then, then when did when emphatically repeatedly yours, yours it become ?” re- and he swore sort of interest plied, “When off.” He the notes 1942. His last choice added, always “It had as a perjury. been mine matter was of fact.” quotations margin From the shown in the that, just

Even if if as note will so, this were 'be observed be- arguendo making conceded fore un the statement which *6 qualifiedly says stated, respect him, stated with “I to entire absolves period say” Meyers’ Meyers involved had not And no finan would it was stock. cial shortly interest or having connection with the cor made the statement poration, it upon relies, also remain true that he which Lamarre in- later to subcommittee that sisted that endorsed were certificates Meyers any only Meyers long compa- no interest at time after held for so as the Lamarre’s company ny association money, with the owed him that he considered the except began creditor, as himself, stock as income to that it did ceased Meyers have even to interest after belong to all the time 1942.5 The criminal perjury nature of is became his when the notes [Lamarre’s] not removed, Supreme said, paid.6 Although Court has were given he had no con- by the perjurer Meyers person fact that any later in the to to sideration or

1942 and borrowed some additional mon- was transferred keeping transaction, ey he owned the the time is that correct? name, you capital. stock and connection did “Mr. “Mr. v “Mr. Lamarre: “Mr. Lamarre: “Mr. “Mr. Lamarre: Tes. ‘Mr. “Mr. Lamarre: No. “Mr. and he Meyers from him when we needed you? Rogers: Rogers: Rogers: Rogers: Rogers: # did not then owned all and he for business, you H* So In other That At all pay That all That took you put endorsed them over the time the stock the books arrangements practical purposes anything ^[*] understood all did all of the words, you right. just right. you stock? certificates, s|s held for not? working a book- , money as to that, your (cid:127) Hi were Meyers, note 6. for way, never tical were Meyers, September, 1939, showing: attention to the question, ness, the stock and the transfers and bow capital scription told “Mr. “Mr. ‘Mr. Lamarre: “Mr. Lamarre: “Mr. This was demonstrated See the subcommittee Ballaou what yes.” purposes now, endorsed, worked for the Lamarre: Rogers: Therefore, Rogers: excerpt was the three of to 250 he not? $500 between it not? shares journal entry And Tes. B. E. Tou Tes, you was you? do. owner of that busi- company actually. evidence shown could called because she had get Meyers all common He arrangement» for all arranged by back to Ballaou and must Lamarre’» “Paid dated for sub- counsel it stock. prac- have- they my- a» in¡ merely company, and that he bore to to him at for the shares transferred creditor, senators, had al- the relation of a relation “It he told the instance, despite the ended in This true ways mine a matter fact” been fact that he he understood pay obligation (cid:127)that no he felt under practical pur- company all owned for Meyers for it. poses. not be isolated statement reading A testi wholly all thereby differ- given a meaning mony convincingly subject on the shows significance the testi- ent from the clear beyond any trying Appellant mony doubt that he whole. considered charge law be that get himself states the the subcommittee to believe ownership “may not be sustained actual beneficial stock your name? shares he corporator stock. ey not, fact? organized dorsed whether put up owner was General much of further him him You transfer mediately thereafter: stock them for in salary, about that par tion tion. “Senator “Mr. Lamarre: * “Senator “Mr. “Mr. “Mr. “Mr. ^[******] “Mr. “Mr. Lamarre: “Senator “Mr. Lamarre: “Mr. “Mr. “Mr. “Mr. “Mr.,Rogers: was to your own told value shares money. did not only following testimony that for Lamarre: Yes. Rogers: Rogers: When them? Lamarre: Lamarre: Lamarre: Lamarre: Rogers: itwas Rogers: Lamarre: So when it came income. me charter, payment * a be so §2, General stock General you common money journal entry? discussion. When I returned Ferguson: pay and that Ferguson: Ferguson: that paid mind, long the books of like in accordance with you your were him * So gift? June Ballaou never made filed that was * * back What No Ballaou so far Yes. No, Well, I as the Meyers, No. No. came That was that Only, you know that Meyers, stock to Well, name and merely holding them, 9-13-39. to they and took all of word * yours Is it did But in, him. because They in, I there was considered company owed ever Did ? is not were held for right. and the mon- you part Ballaou transferred? begin ? ‘dummy’ not a to * given you a * made the paid him you were corpora- know? consider you applica- get dummy that a ** actual with? know your fact, held it a had put im- en- * ” Were to, It was when I came him. And the it become had known had income, about to portunity of gard General under put owned mine paid off. sudden David company. that stock] became to be thought you were the boss? stock “Senator “Mr. Lamarre: “Mr. “Senator ^[******] “Senator “Mr. Lamarre: “Mr “Mr. “Mr. Lamarre: “Mr. “Mr. “Mr. * “Mr. “Mr. Lamarre: No. ^[*] “Mr. Lamarre: “Mr. “Mr. Lamarre: That my own; I was not your know it in as an income? always you as a yours to General is 224 shares of E. any obligation supposed you Rogers: Lamarre: Lamarre: When the notes Lamarre: Rogers: *7 you Rogers: Rogers: Rogers: Rogers: Meyers was it? income it was me, * ^[*] were the head of Johnson was to matter time? yours, him, stock? got Ferguson: Well, supposed Ferguson: then? wanted Ferguson: become set in, and I and he supposed valuable, it for to be set to mine. for * tax? stock, :jc yours, When did you thought All Meyers? actually yours? And And It What we are No, be Yes, pretty had it? fact. me did always belonged ever to right, nothing. other to sir, no I considered that you thought to you ^[*] * a and, it was up to, why Was up * stock; all of When it longer high regard much of an pay eventually It right.” right. you report in a business now. always As I did had you report * words, you did return boss, him for business. * ^[*] when did company? long about We want supposed supposed not. not feel high you thought said, not an talking it. as that that You [the pay op- * !i¡ re- he it. it. keep only accused allowed modest lifting device of a statement of own giving part compensation. larger By out its and thus far the immediate context meaning salary books wholly than credited Lamarre on the different clearly corporation by him to which its cites was remitted context shows.” States, Cir., Meyers, usually Fotie F.2d v. United in the form of cashiers’ arrangement and other effect. The A similar was fol- cases to the same checks. principle sound, application respect salary no lowed T. but has brother-in-law, appellant Readnower, here. It is the seeks to sustain E. who “by apparent $18,600, lifting salary whose defense the device state- $15,000 By Meyers. ment immediate of the accused out of its which some went to meaning wholly context subterfuges, and thus this device and such as giving it a other clearly purchase different than context of an automobile and the fur- that which its charge perjury may nishing apartment, Meyers shows.” Since a of an received manner, $150,000 sustained it follows more than dur- charge corollarially ing involved, a defense in addition to the perjury repayment not be established in fash- of the sums which he ion. working advanced from time to time for capital. Aviation The checks which From the evidence as whole we salaries, purported Electric difficulty concluding have no that La money the cashiers’ checks which the told, tell, marre intended sub Meyers, was transmitted evi- committee held no stock dence and in our view constitute sufficient company, beneficially, either corroboration of Lamarre’s after the shares were issued to Lamarre in he testified before the subcommittee. 1940; any had no interest of subornation of except kind after that a creditor proved by the evidence Lamarre that on capital collateral; held stock as day appearance before his first before and that after 1942 sort the subcommittee the instructed of interest in or connection with the com “Meyers him to swear no financial pany. Having determined, so it is next interest or other interest than necessary to ascertain whether that state money corpo- that he had loaned to the ment was and known to false be false to repaid ration himto testified, Lamarre when so stamp as to appears middle of 1942.” It thus perjury. it as that, contrary appellant’s contention, only plead Not guilty to the *8 evidence showed Lamarre made the charge against of him be- representations statements and to the sub- representation cause his to the subcom- of committee which the first count charged; Meyers mittee that was not interested in or testimony given that his was and false was corporation; connected with the he also knowingly willfully; Meyers and and that fully freely testified Meyers’ and at trial n perjury. suborned the he knowingly willfully that Had falsified As to count which charged La- respect subcommittee, before the that with perjury concerning marre pur- Meyers fact was at all times chase the Cadillac automobile. company. real owner that, Lamarre testified further at this the trial As count7 indictment to “ * * involved, following: during salary charged his own . treasurer, secretary testimony as later his as course of on [Lamarre’s] president, varying was fixed at sums dates it became material whether from these $20,000 $30,000 per annum automobile which he and that it Cadillac testified Ben purchased corpora- Meyers so shown on the books of was E. nett funds had Company Corporation checks Electric regularly tion. were Aviation Vandalia, Ohio, payment Dayton drawn to order on or about salary 1, 1942, purchased January his ostensible but in he had been fact was for 7 Which, charge,” convenience, count,” for will be to as the “second “second or referred perjury.” “second Elec- employee. Meyers Aviation or Aviation Electric E. personal Bennett use of carried tric for Corporation. The the*automobile for use-of the or knew, on its books an asset until as was, fact as H. then Blériot company bought for when from purchased Curnutt 'been automobile $1,400. sale The Meyers. personal at its then book value E. use Bennett no company had wilfully was made because Blériot H. "Lamarre nevertheless therefore, is, car. false further use for the contrary said oath testified his plain told the subcommittee ly the dates that Lamarre before the subcommittee on second count place substantially Cadillac at the aforesaid that that charged. purchased for automobile had been Corporation and for the Aviation Electric his testified the trial Lamarre At Corporation.” use of the Electric Aviation false statements to the subcommittee respect appellant charge With this telephoned him Meyers and that in truth categorical following makes in his brief him Washington and instructed “The disclosed that comment: approximately company check for send whatso given Lamarre had testimony Cadillac; purchase a $3,000as he wanted had, not, 'been ever that the or car and the automobile that the check was sent purchased Bennett personal company use never purchased was for _E. possession Cor had Meyers the use the said of it. or for poration.’ Thereds not a word in tran La- ample There corroboration of was script testimony Lamarre, false marre’s that the automobile true, or car to had been referred Meyers. man- bought for and used purchased personal appellant for the use 2400, where ager garage at Hotel Corporation.” use of the A apartment Meyers’ located, testified factual issue is thus which is raised to be early stored in 1942 by resorting resolved to the record. Cadillac garage a new blue the hotel August kept there until he left which he Lamarre swore to the subcommittee that kept “live stor- car was as 1944. The the end 1941he asked General nightly age,” cleaned meaning buy an automobile him and that by Meyers his daily and used almost buy Washington the Cadillac storage charged wife. sedan; Washington that it remained anyone manager garage never saw several weeks because when he came for Meyers and other than drive car bad it the weather was and he was forced wife. Dayton to return to a train. also Mettee, corporal in the who was a substantially as Calvin follows: left ap- army, assigned to the testified was until later was car able of 1942. transport Dayton, pellant spring a chauffeur where it was it to used being blue 1942 'by Curnutt, of the new Cadillac He told car duty father-in-law, and that it garage the hotel was an in who also Flanagan: concerning Who it before he *9 bought it?

follows: company bought Rogers: “Mr. Lamarre: had it. [Curnutt] “Mr. He Flanagan: company company gave It was “Mr. from and the com- ear pany a for the car? car? note car, “Mr. Yes. Lamarre: “Mr. For Lamarre: Flanagan: it “Mr. Who used it right. when company Flanagan: car? was What kind of car “Mr. “Mr. Lamarre: I used it. it? was Flanagan: buy “Mr. And when did he “Mr. Lamarre: Cadillac. ear? Flanagan: How did much it cost? “Mr. original I “Mr. Lamarre: know exact- “Mr. Lamarre: cost was ly was; it approximately $3,000. have been ’44. when Ferguson: Flanagan: much he use How [Curnutt] Did “Senator he “Mr. pay for it? that car himself? paid bought ’45. book “Mr. Or Lamarre: He did after he Lamarre: it, $1,400 and some.” for value it.

809 clean, “Was a Cadillac out there about to see was brushed discussion car “I During automobile?”, ready go answered: and at times. to which he to say was year to automobile was garage that the Cadillac it was never out of purchased by Meyers on District longer than a 'bore week. If my gone had to tags during 1942, 1943 instructions and I Columbia license Washington the car was Meyers again in a few weeks after and 1944. When married Day- I explain delivered back to witness was had driven it instructed to ton, Meyers Cadil- and that on several occasions to Mrs. how to drive the blue Meyers personally Washington, driven to but because lac. used the car the car Mrs. gone bad weather I the train at back on times witness would drive shopping Washington remained her tours or social here in functions. to some later when came garage thoughout was stored hotel time then pick up again year car drive and until the summer Meyers asked, it home.” He was then Wright “Was that was transferred to “No, truth?”, replied, Field. Mettee to which he was transferred there also. Meyers’ was not.” army At direction he flew in an airplane Dayton Washington from to Our is that the count conclusion second Dayton order drive the blue Cadillac to to Lamarre testified to the sustained. Meyers’ quarters. where he it to delivered charged; manner his subcommittee appellant’s order,

At arranged for the him, admitted and other- automobile, transfer title from false; proved, to wise evidence Meyers Curnutt to or his wife. car Meyers per- introduced that suborned constantly appellant’s possession jury. Wright while Field. at When re- decorating the 3. As furnishing tired from active service he di- apartment. rected Mettee drive the 1942 Cadillac Dayton from his Bayville, residence at por subject pertinent On this Island,

Long which was done.. tion of “ follows: the indictment * * part course of October, 1947, In the latter [La it became Mettee on these dates had been marre’s] released from army, redecorating material whether the cost of went from his Rochester, home in Penn- apartment sylvania, of Bennett at Huntington, E. York, New to see Street, Meyers, W., Washington, D. request. Sixteenth N. at the latter’s At approximate suggestion C., year in the registered at hotel under $10,000 had been for out assumed amount name. told him that funds of the Aviation Electric Cor investigated he was being and that Lamarre poration Dayton Vandalia, Ohio. trying him. He blackmail asked had, Knowing facts be that it Blériot Mettee to testify, if questioned, he were wilfully contrary H. that he obtained from Lamarre author- ity before subcommit oath to drive the blue Cadillac on the oc- place dates and aforesaid casions tee on the it, when he did drive and to aforesaid redecoration and cost during the winter of 1942 and 1943 apartment redecoration of the said Dayton drove the from car himself, gift Washington Bennett E. heavy but due to weather he Lamarre.” could Blériot H. not return and was forced to leave in Washington, car and that the witness appearance During his before the sub- did not know how the car was taken to *10 morning Saturday, committee Dayton. Meyers told him that if his testi- Lamarre said had never October mony the automobile turned out concerning Meyers present a a value of more made to be of give value $2,000. he would him gifts and that from than $100 Christmas, Proof wife, of subornation as those at was such made his furnished when, respect with to a than to no more After $400. conversation amounted be- tween a with the lat- lobby lunching hotel 3, 1947, on October asked, attorneys, at be- ter’s volunteered was belatedly charg- personal by gift state- from him this session ginning of afternoon account, orig- ing salary I like to it to his own thing would is one ment: “There indeed inally expense. It was is, you charging laid it to proceed. That before we true, therefore, senators, as 'he told the great morning on what this a deal stress checks, company, although by the drawn Meyers. you I gifts General called salary. charged against personal were his amplify my would like to statements that, I did not consider because at the time Meyers, Lamarre admitted At the trial of gift, it a but it was after General company expenditure was apart- Washington, he had had come not was corrobor- him. His confession decorated, paid I for the decora- ment falsity ated because the essential apartment, tion and the furnish- of that is shown before the subcommittee ings.” bookkeeping entries although in this: salary $10,000 ac- charge made to said to the subcommittee false, count, itself was that account paid furnishing apartment cost of fraudulently up. set checks, Aviation Electric which was true; comparatively meagre sal- His actual and sought transform the trans- expenditure ary decorating cost. from into could not action a cover All ings lowed his tion ment. moral— him, consider himto considered this cross-examination ture 'Mr. 'Mr. “Mr. “Mr. ^[******] “Mr. “Senator “Senator “Senator “Senator “Senator “Mr. Lamarre: “Mr. Lamarre: ^[*] “Mr. Lamarre: “Mr. Lamarre: “Mr. “Senator “Mr. Lamarre: “Mr. “Mr. “Mr. Lamarre: “Mr. Lamarre: “Senator “Mr. “Senator gift right. forgot noon? and the of an of an then? Lamarre: of the decoration Rogers: Lamarre: Lamarre: Rogers: You Lamarre: As Rogers: Rogers: Lamarre: Rogers: following it as ^[*] the decoration I it. voluntary Ferguson: apartment? Ferguson: You Ferguson: Ferguson: gave him, paid Ferguson: Ferguson: apartment Ferguson: Not what Ferguson: personal furnishings a ^[*] *11 gift. What did No, I did not. Who did Approximately $10,000. Go Yes. Yes. That is That is of Lamarre which In 1941. —paid for And General morning? A I considered I statement: discussed thing ahead, excerpts You moral In 1941? When ^[*] And You you I and some furni- You said, Washington? of that considered right. right. it amount to? Meyers. for— you eat say you personally? you personally? the decora- claim was that? Senator. obligation: ^[*] personally I did from furnish- you? gave it apart- it you fol- it— ^[*] wards it. made it? knew you ing. charged my salary turn for all of the to take the furniture it? change charged, details of it in terms of done of some item that tion, “Senator “Mr. Lamarre: “Mr. “Senator “Senator “Mr. Lamarre: “Senator “Senator “Senator “Mr. Lamarre: ^[*] “Mr. “Mr. “Mr. “Senator “Mr. Lamarre: As “Mr. Lamarre: “Mr. “Mr. “Mr. “Mr. Lamarre: “Mr. proper allow charged year. and he mentioned that he nothing ? Lamarre: That is Lamarre: Lamarre: Rogers: Lamarre: Rogers: Lamarre: Rogers: care' it? because me business Ferguson: Well, now, Ferguson: Ferguson: Ferguson: Ferguson: gifts, Ferguson: Why again. Ferguson: Why about expense up Yes. And what did Let < It was 'in I No, expense In I felt you And we were past. that. No, said that would like You had a conversa- account. government things decorating expense, when a us more give business When? At the time How What go through right, right. immediately. $10,000 the man. him. December of that he had I gift, government long less a re- expense? you say? changed refused I think talking did.” after- it? mov- you you subcommittee gave to marre before result There real difference falsity its perjury; setting testimony charged as company device of between the by by and corroborative proved of was remitting most up salary a fictitious and evidence; proof that checks, there it to in cashiers’ salary ac- suborned it. charging device of a fictitious Meyers’ company count drawn for checks re his reasons In addition to simply an- personal latter was benefit. The dis discussed which have been versal Avia- secretly channeling method of portion this of posed foregoing inof Meyers. The com- money Electric’s tion opinion, appellant argues his conviction pany’s furnish books and cancelled checks the subcommit aside because set should testimony that corroboration of perjured gave his tee before which fur- respect to he had sworn with lawfully constituted was not Miss nishing apartment. Moreover, competent such, not “a and therefore was Davis, decorator, jury dealt told the she spoken perjury statute. tribunal” of told only, although with a indict He discerns variance between the he informed subcommittee her of allegation ment’s Senate commit present appellant with the desire April 19, 1947, a subcom tee “on created cost Davis said of decoration. Miss proof from the mittee” committee give told her “that he me that a subcommittee chairman counsel company checks on little that he owned a chairman, mid-April created or had an interest in —I don’t remember full announced committee who words, just they enough but satisfied me ap whom he names of senators willing so that was to take the check.” says Appellant pointed members it. added her gave She the name invalid it was the subcommitte was because Aviation as “the Electric Cor- resolution the full created a poration Dayton or Vandalia.” argument substance committee. The lacks unvary Appellant shows it because evidence is the asserts Lamarre’s characteriza- payment gift ing practice of the tion of the as a was made Senate to follow subcommittee; appointing sub prodding under the of the method of creating partially wholly employed in this" true committees which was immaterial as- ap originally voluntarily sertion.10 instance. After consideration of all respect pellant’s points described the so the subcom transaction in law 4, sitting meaning the fair mittee on October we conclude language to a gift legally amounted constituted. though even he disliked that the word. Lamarre was reluctant to use quorum argument that a “gift” only thought the word because 4, present October because man,” gift give “as some item present only then the three senators position before subcommittee was appoint originally five among had been $10,000 payment a moral April, obviously creation confuses the ed obligation, a return due because appointment subcommittee with the Moreover, favors to has been him. 6, 1947, personnel. how On October its out, pointed plea Lamarre entered a of ever, only present at the two senators respect guilty charge. As he minority they hearing. Since were a respect had done with to the first two subcommittee, they legally could not counts, Lamarre testified that he committed except adjourn. For that rea function perjury Meyers’ suggestion and soli- son, given of Lamarre citation. be considered as day cannot said, appellant suborning what has been be convicted of

From find the nor can we to have been count established. La- third it. prodding Lamarre, say you Ferguson occurred on October “You asked quorum gift decoration and some claims present. apartment?”, of an to which subcommittee was furniture Prior however, that, replied, and on “Yes.” October Senator

812 testimony practically body, permitted But all Lamarre’s testify as to given quorum 4, on October Lamarre had to the sworn subcom- present. day proceedings of that mittee. government Later in the trial the perjurious contain described statements stenographic tran- introduced evidence a counts, script in all examination three and his testimony sena- of Lamarre’s at the repetitious. largely on October 6 was torial hearing. In his brief here character- ground

A further reversal izes this as does appel procedure” a “bizarre but alleged denying the court’s error in assign reception Rogers’ as error the lant’s motion before dismiss the trial testimony. dissenting opinion, how- indictment. that the section asserted ever, asserts allow it was reversible error to Code, of the District of under Columbia testify Rogers to laid, as to what nothing which the indictment was “has subcommittee, theory had said perjury whatever to the any to do with or subor transcript evi- itself was best nation of committed connection testimony dence of Lamarre’s 'before the inquiry by with an a committee Representatives House or Senate subcommittee. words, appellant In United States.” is, view, theory our says only perjury statute, the federal 18 upon misconception based of the best 231, Code, 232 U.S.C.A. Criminal §§ [1948 applied generally evidence As rule. 1621, 18 1622], applicable. U.S.C.A. §§ federal courts, the rule is limited to cases accept argument To would be over writing where the to be contents rule our decisions in O’Brien United v. proved.11 attempt Here there States, 1938, App.D.C. 368, 135, 69 99 F.2d prove writing; issue contents States, 1938, App. and Behrle v. United 69 said, was what Lamarre had not what the 304, 714, F.2d D.C. 100 we are not transcript made contained. The prepared to do. was, testimony *13 “ * * * per corpo- there capital Here cent the page 2d 446: of the stock of at attempt of ration prove the contents but that no stock certificates was no to earnings of ever been either of writing; the issued to them. the issue was appellant objected testimony on the partnership, were this convenience to which for ground 'bankrupt cor- rele- the in the the books of recorded books account after poration mat- Generally, evidence the this differ- were the best facts occurred. vant parol evi- adopted inquiry courts. ter under has been the entiation the precise question admitting oral dence because On was inadmissible the offered nonproduction con- testimony prove matters that are not to books account, satisfactorily explained. appar- have quite books the courts is tained in It testimony divided, oral the holding some ent that misconceives scope admissible, excluding The fed- others it. of the ‘best evidence’ rule. adopted applicable purpose prof- ra- generally

eral courts have rule is when the limiting rule’ to fered evidence terms of tionale the ‘best evidence is to establish the Evidence, writing writing. Wigmore cases where the contents of the See 4 hold, therefore, proved. Ed., to 1178. In no We 3rd this case there was § attempt prove judge by parol oral en- district erred to book excluding either testimony partner- earnings tries * written terms of instruments. *» ship.” To the same Boitano United effect is v. A made contention identical with that 1925, 325, States, in which the F.2d dissenting rejected opinion here was “ * * * was Ninth Circuit said: Appeals for the United States Court of competent testimony equally prove that the Second Circuit in 1912 in Brzezinski plaintiff a witness who [of error] States, v. United In that 198 F. present was and heard the at the trial opinion the court said: “The fact for testimony given, regardless of whether the government prove giving was testimony reported or whether it the testimony charged in the indictment. not. 344.” C.J. stenographer called the who took the out, pointed As we have there was proceedings grand *14 ground proceedings that the executive criticism, in the There substance is no The a Senate confidential. Committee are dissent, in the by

voiced and the Meyers’ denied court motion. early in Rogers testified the fact that principal tran- wit- unduly protracted began, When the the the trial trial Ap- by close. ness was Mr. script its called the Government introduced near was by Rogers. tran- United pellant’s copy the asked the had a was counsel day trial, “Now, you the script Attorney, States tell will from the second study jury and to in what the Court and the substance opportunity had full light testimony of that Rogers was that the defendant cross-examine concerning study. that, gave had the mistaken notion before the Committee The evidence, Rogers’ put Cadillac counts of the transcript automobile?” Two been first is, incompetent testimony been related to this automobile. would have idea course, erroneous based on the called counsel to The court at once application. evidence rule the best prosecutor: “Of bench said to the in no course, right quite technically, you It is clear that have * * * in which the way prejudiced by order proceed way you doing. are introduced, nor against hearsay him was evidence under the I do not think that * * * appear position before the rule, that his hearsay does it me but it seems to more favorable jury all, prosecution would have been that, you have a day earlier transcript on an perjury, been offered tran- based have script particular testimony of the trial. on which 'you ought lay based, indictment is second divi- matters The discussed put ought a foundation the tran- opinion been dissenting have sion of the script evidence, proving instead think, adequately, in the earlier we covered happens someone who opinion. portion of this depend present, on his to be who has to prejudicial perceive error Since we memory as to what said.” pur- trial, judgment appellant’s entered defense, objecting, in- Counsel-for the will not be dis- jury’s verdict suant to the procedure “preposter- sisted that the turbed. judge ously The said unfair”. trial Affirmed. transcript ought seemed to to be made available to defense counsel. PRETTYMAN, Judge (dissent- Circuit done, prosecutor in- That was then but the ing). upon planned as he had proceeding sisted judgment opinion strong I am of with the witness. I think should be reversed. case try will Rogers then testified: “I Mr. reasons. so two testimony. give the substance testimony given Lamarre be- * * The I. your appreciates I am Honor sure presented Committee fore the Senate exactly I do not remember the sub- upon in so unfair jury the trial testimony. The substance of stance of as to constitute re- * * prejudicial a fashion this, testimony was And then error. versible testimony in gave “in substance” the re- spect process Cadillac car. same before the Committee respect only Senators, was followed the matters session, Mr. executive counts of the covered indict- Rogers, who was counsel to P. William e., redecoration of Committee, clerk, reporter, ment, i. Meyers’ interest in apartment the Avia- being present. An official sten- witness Corporation. Defense counsel proceed- Electric was made of the tion record ographic his cross-examination part of un- reserved continued for two ings. transcript. read the typewritten til he could days, de- for the meaning was. Counsel testi- what its The notable characteristics of proposition agreed fense mony In each with that Rogers important. testi- Rogers’ direct sum- moved to a short strike instance, the “substance” testimony had mony length. mation, page in as to what Lamarre’s printed about half a saying motion, absolute been. The denied purport to be court witness did not direct, not, “inter- merely Rogers his that reproduction in his recited “the sub- recollection, preting” his recollec- Lamarre but had stated unrefreshed entirely “is stance”, bears a tion on matters court each the three thing”. Rogers answered as sum- then resemblance to succinct different striking “I stated “recollection”, commenting, It is obvious to mations of the indictment. *15 gave just my at the it recollection.” that the as “substance” what witness outset repeated several an in effect essence his own distillation of comment specific attempt reproduce not an the whole asked a Finally of times. counsel to word testimony. question are differenc- use the There as to Lamarre’s of key word “gift” es and the the Rogers’ (which between recollection note was we transcript objected Five), prosecutor which are vital the case. the Count ground e., the tran- the “the record [i. Wednesday, The Feb- foregoing was on speaks The script] court sus- for itself”. ruary 25th, day trial. the second question A objection. the similar tained Tuesday, 9th, On March which two objec- to, asked, objected was then day weeks of later and the eleventh dropped Thereupon tion sustained. counsel trial, Government, as was about to that line of examination. case, transcript close its the whole offered procedure my mind, foregoing To testimony of Lamarre’s in evidence as an it, was, as defense counsel characterized exhibit, and it was without ob- received “preposterously the min- jection. unfair”. lacked prosecutor The and one of his play essential our por- imum of fair to jury assistants then elements read such my I reach conclu- transcript concept of a trial. they tions fair deemed ma- upon practical and theoretical sion por- terial. Defense counsel both then read the problem The has both as- tions which considerations. they deemed material. pects. Upon the reserved cross-examination of practical these: The The elements following Rogers, the occurred: transcript exactly showed what Lamarre “Q. Is not a fact that nowhere in his Committee, told the word word. But testimony the defendant Lamarre on expressions charged to him the words and testify 6th, 1947, or October 4th that Ben- appear by tran- do not financially E. was not nett interest- script. alleged, he testified as Whether ed or connected the Aviation Elec- alleged what be whether he said Corporation I tric ? A. don’t think he ever alleged truth, whether he said what is or used those words. inference, false, were matters of con- or “Q. fact Is it not of his testi- a summation, “substance”, clusion, or to be

mony, whole, negatives taken a such an many ques- gathered his answers to interpretation ? Rogers tions. who in- Mr. the counsel Fay: purely ques- I think that terrogated Lamarre before the Committee. tion of law. complainant was the actual Committee Objection sustained, I Court: “The charge. Rogers rep- was its proper that is cross-examination.” think resentative. inquired Thus, practical aspect Rogers Defense counsel the sum of the if it prosecutor put fact that “the substance of the matter is that were not La- testimony opening case, jury reference to the out of the marre’s complainant, under oath car” so-and-so. The court in- mouth Cadillac stand, complainant’s interpreta- terrupted and said that asking counsel was on the alleged perjured testimony, construe” Lamarre’s testi- witness “to tion jury approximately translating that since what mony and heard into per- testimony alleged read it would attributed to the have determine indictment jurer. long, the tremendous ed or offset reading need not elaborate the later Government, advantage my cold gained thus record. It is view that for this ex- advantage magnified ceedingly practical what oc- reception later reason Rogers’ attempted curred on cross-examination. summation in evidence permissible. presentation difference between of them piecing elemental facts and From viewpoint, theoretical realize together is ba- so as reach a conclusion authority (ab there is line of argu- sic.1 One evidence and the other incompetent witness) sent original principle much through runs ment. bystander who hears or other the law of evidence. conversation testify as to said, though even stenographic there abe anyone doubt that report.2 And there is a cases line prosecutor put could first have into evidence stenographic transcript holds is not of Lamarre’s the best evidence what was said.3 There produced Rogers give thereafter have tó legal is also a cliche that the best' evidence jury from the witness box his own sum- applies only rule documentary evidence.4 mation of it. He would have been met with *16 The trial judge case was confronted a ruling transcript speaks that “the for it- authority, with that and trial court is Indeed, exactly a developed. self”. The probably place not to inaugurate the a ne prosecutor .v produced the summa- oral authority. why line of But I know do not tion, pro- and it was Then he admitted. appellate perpetuate an court a rule should transcript. Then, duced when defense clearly by development. outmoded scientific attempted counsel cross-examine as to know that courts are reluctant to do so.5 substance”, “the he was because of blocked recognize view presence such matters transcript. prose- of a Can Congress. should be left to But rules of by simple cutor do so obvious a maneu- originally evidence judge-made ver that which the otherwise law forbids as part judicial are essential func ? unfair Can into he thus transform sworn why judicial tion. I know of no reason evidence the box that is other- branch of Government should abdicate to only argument wise from the rail? I do legislative important branch so part a presence not think so. In the the unim- responsibility. its peached transcript, though even tem- porarily on yet counsel table and not opinion, quite ready hold, am hands, clerk’s summation interpretation that the rules by of evidence reflected argument not evidence. just cases which I have referred are out- prejudice by fact,

Nor cured the avail- moded and at variance with known ability of the ought defense counsel and courts establish a new for cross-examination. If that were so in and correct rule. The rationale the so- case, the same doctrine requires would admit in called “best evidence rule” that a any opinion, description, party evidence having available evidence which is relatively summation of may elemental facts otherwise certain not submit evidence provable precise impres- accuracy. The which is far less certain. The law is con- given sion a succinct fact, cerned with summation the true and with that alone; procedures live witness on stand cannot be its correct- are directed to that 272; Pressley State, 1921, 1 I use Ala.App. some of words of Section v. 18 Chapter Wigmore 40, Evidence, I of 1 88 So. 291. See cases collected 15 authority (1921); refer to that for a A.L.R. discus 544 122 A.L.R. 436 subject. (1939); (1945). sion 159 A.L.R. 1250 Umsted, 1933, Cir., v. 8 2 Johnson 64 Frohlich, 1930, 4 Wuerth v. 251 Mich. 316; F.2d Weinhandler v. Eastern Brew 701, 373; 232 N.W. Carroll v. Gimbel Co., ing 1905, 584, 46 Misc. 92 N.Y.S. Bros., Dept. 1921, App.Div. 444, 1st 195 Ortego, 1945, 792; State v. 22 Wash.2d 737; Pecoraro, 186 N.Y.S. 1932, Pecoraro v. 552, 320, 157 P.2d 159 A.L.R. 1232. Pa.Super. 543, 105 161 A. 3 Cooper Hoeglund, 1946, v. 221 Minn. 446, 450; McColgan Noble, 22 N.W.2d v. Read United States v. Provident Mo.App., Louis., 1930, 205; Co., 1934, St. Trust S.W.2d U.S. 54 S.Ct. Miller, 1892, v. Brice S.C. 15 S.E. 78 L.Ed. 793. per- offering in is It should evidence “written contract” that alone. objective, and to prove writing. to not is use of which the contents of the procedure the sole mit no contract; writing mere- which is other- is not the and confuse that obscure ly evidence of the The contract plain contract. wise and certain. agreement parties. itself between the full discussion venture into need not We such Statutes as statute of frauds As between involved.6 principles of all the provide not writing; that a contract be in event, will of an law two observers they provide that contract be evidenced and exclude that of one accept the evidence by writing, or that written memorandum other, because law cannot writing it be made. is offered But as between which is more accurate. agreement, pur- evidence of an not for the description it, the and a document itself pose proving its own contents. A deed accepts the former and excludes law different, being real estate is certain the former latter, because conveyance, although instrument of there is subject many latter So frailties. authority merely too is evidence parties to a 'between recollection of the agreement parties. between the writing contract evidenced rejects itself, stenographic the former writing law doctrine that *17 human recollection is any are no more infallible than subject is firmities and human recitation beings, human other while a rule as prejudice they may accurate, of and interest. Pre be intelligent, vices and hon choice, accepts est, they so; sented law always with that are not and therefore rejects the certain and The re it will lay uncertain. not do to down as a rule that the peated stenographer’s statement in cases and elsewhere when *18 upon Meyers was stenographer’s Conversely, called the notes would made. evidence, allegation made, against-the and to defend and the best that oral evidence none

would not admissible such tran- other. when script be obtained.” is au- could And there First, note made we that never thority to the that even where a wit- effect language the in the in- direct assertion the permitted give the ness substance dictment recites. No one claims that he did. another, prior testimony repro- he must noted, already As Mr. Rogers we have tes- accurately as he can the whole of duce tified, “I think he ever don’t used those merely and give cannot that asked, in words.” And when reference to own summation.10 finances, say, Lamarre did not in “So that it, summary, you Meyers proof understood that did not establish that La- II. no connection with the ?” Senate Mr. marre the Committee what the told indictment, count, says did, Rogers “I replied, never said he said that.” first that he and established told the Commit- Second, repeatedly that Lamarre we note fifth counts tee what the third the precise contrary testified to the what the Lamarre told the Committee What truth. charged he said. in- Financial indictment course, question first in was, the factual corporation terest in with a or connection in defense, prosecution, thus sorts, owner and creditor. principal two Meyers. Meyers testified that had both. Meyers charged up that put told Committee that Lamarre He upon money for the stock specific false all statements to the incor- made three original poration. He identified book Committee. Senate 10 Island, at See discussion cases A.L.R. Ruch v. Rock 97 U.S. seq. (1921) at et 79 A.L.R. 1410 L.Ed. seq. (1932). et said, “Q. we sole Yes? when as the A.—but entry Meyers which showed pressed questions, view of him said that original He stockholder. money Meyers up put He fact all the that incorporators “dummies”. named company, given on and had stock in the transferred the stock was when that n practical Meyers purposes all endorsed (Lamarre), he to him records company office owner. it in blank and left it tes- He also Meyers had access to it.

where “Q. actually, as the So that money which Meyers put up any tified that was, left, Meyers deny that he didn’t corporation needed and least, in the com- that sense at interested corporation. was the sole creditor of pany? A. No. flatly, He even as follows: financially “Q. sense at least And to La- Q. stock transfer “That [the company? A. interested transaction, just bookkeeping marre] right. you en- you stock and then held the “Q. deny state And he did he took dorsed them over to Meyers was connected that sense that -? certificates, is that correct company? No.” with the A. Yes. Lamarre: “Mr. quote opinion impractical in this It is the time “[Q.] you So understood all point. testimony upon the the whole practical purposes all he owned that for La- my record of what But to mind business, ? conclu- marre told the Committee Senate right. That is “Mr. Lamarre: sively perfectly he made clear shows that unequivocal by repeated Committee, “[Q.] put money in and he all of originator statements, Meyers was the stock? owned corpora- sole stockholder right.” Lamarre: That is “Mr. tion; stock was transferred again record shows: And (Lamarre), he was on the record to words, any pay- without Q. “In other holder, having paid nothing merely a record [Meyers] your part, and he ment having endorsed the cer- for the stock and you were to endorse arrangement that physically left it avail- tificate blank and possession and he would take them in blank Meyers; was the sole able to them, is correct? company, and financial backer of the during 1940-42 was a Lamarre: Yes.” corporation large creditor of course, again Lamarre testified: “Of And amounts, his loans evidenced *19 Through- by pledge of all the secured stock. General money; was borrowed from testimony was no intimation there out Meyers.” any sup- corporation had financial 1941 the at the end of that He testified any except Meyers. port that of sort $30,000, Meyers and corporation owed repre- many made statements Lamarre and Meyers that which showed a list identified which the record indicate sentations corporation, $58,310 to the advanced repudiated. which he later were false $20,000 was advanced in amount which not, I can read the rec- But he did as best 1942. Meyers ord, suggest had no finan- that even cor- in or connection the questions defense coun- cial interest very The any years 1940-47. And poration of the wit- in upon cross-examination sel says developed indictment he told the the nub is what the trial that Rogers at the ness Committee, that is the Govern- what matter: of prove to sustain in order con- ment had to I Rogers, did understand “Q. Mr. viction. that he or Gener- Lamarre testified say that agree appel- court that purposes, I practical owned Meyers, for all al this connection based company: Aviation lant’s contention owned the stock, question and answer. ways. upon un- Well, he said both As A. Electric? upon it, is based the contention owner of the stock— derstand was the He said through in the Gov- every the tion runs claim before whole Lamarre’s opinion of an- ernment’s brief us. The upon questions before Committee, many “Meyers advanced the court recites Certáinly my is. that conclusion swers. capital working considerable sums for view agree court’s with the Neither do company’s promissory took therefor corporation Meyers’ that if interest pledge notes which were secured estab- be named during any years delivery himto certificates evidenc- sustained. lished, must be conviction “by ing capital that all its stock” alleged by indictment Lamarre is end 1942all loans been re- Meyers had the Committee that have told paid.” La- The court finds recites that during the corporation interest marre insisted “did not be- that the stock 1943, 1944, 1940, 1941, 1942, years long to all the time but be- any The Govern- 1946, 1947, or of them. came his when the notes were [Lamarre’s] made that prove Lamarre that ment paid.” The notes were end the Committee If Lamarre told statement. Lamarre’s So the court’s view of tes- 1942. during three an interest that timony that'Meyers the stock in owned what eight years named, he did says 1940, 1941 and court that says Upon such indictment he said. persuade tried Committee indictment as proof, conviction under the corporation “merely bore to the cannot rewrite drawn could not stand. We creditor”; the relation court allege that Lamarre so as the indictment concludes evidence as a whole from the perfectly something It is true else. “except that he had no interest the statement as- Lamarre made if capital creditor and stock col- held indictment, and if him the cribed to lateral". an interest in proved Meyers had unspoken major to the years, premise Gov- any one those posi- court’s lies the con- ernment’s Therein contention and established. promissory upon that the court is tion is that creditor seems to me It fusion. corporation necessary pledgee of proof to estab- note of a all its thinking about the capital stock has interest in or falsity statement recited no financial lish corporation. indictment, connection with question under cannot whereas the course, agree proposition. proof with that Of point at this is the nec- consideration many “interest meanings, term in” has essary to establish that question particular some of them statement. This narrow and technical. But alleged and, statute, construing false?” we are not more- alleged statement “Was over, expression maleethe al- the whole before us “in- question is “Did Lamarre plain terested in We are seems to me or connected with”. ex- leged statement?” amining finds, allegation an court Lamarre asserted if, purports Meyers’ interest to recite a witness said never denied some 1940-47, congressional hearing. state on the stand in he did not The indictment recites that his Meyers had no interest those simply person had no has failed certain financial years. The Government corporation. *20 interest with a prove of essentials its or connection to of case person The witness drawn. said that the indictment as under was a substantial and secured creditor of place, respect count, to in In the third corporation. may The witness have agrees Lamarre made everybody that it clearly guilty perjury, been of but he Meyers was a Committee that clear to guilty perjury charged by of the the in- corporation large in amounts creditor of dictment. 1942; that, 1941and during the supplied money charge against Meyers all the the cor- The fact, he second in Upon indictment) of (Count when it was in need. Three related to poration needed below, charge The the insistence of witness a Cadillac automobile. the trial upon premised allegations told in the that Lamarre the Commit- indictment Rogers was financially was, “The fact as Blériot was not that H. interest- Lamarre that tee knew, “except excep- a The same that automobile had as creditor”. then that been ed a clear drawing difficulty I have in Bennett some purchased personal use for the use purchases for the line of cars neverthe- between Meyers. Lamarre E. Blériot H. corporation purchases of cars contrary his said oath wilfully to less * * an of- corporation personal use Cadil- that that falsely testified stockholder, creditor. ficer, or sole purchased for sole lac automobile had been Frequently, me, the use of Corporation for the it seems to Electric Aviation many officer, is, in Corporation.” stockholder or creditor use Aviation Electric senses, any corporation. At use first, recites, what Thus, indictment rate, in busi- frequently is so considered second, and, what the truth was may, cannot ness Be as it circles. that note Again we must told the Committee. testimony be- find in distinction exactly with care company Meyers’ personal tween use posed its question charged. The critical sharp use constitute one so clear as allegations was: For whose use La- perjury fact. when the other indict- purchased? According to the car that certainly Committee marre told the pur- that the ment, it was its car, arranged for selected the corporation “for use” chase was purchase, kept it bought Washington, init personal “for the because in truth it was company Washington (the garage Meyers. .use” keys, and being Ohio), located in relating testimony Lamarre mind, my arranged for the To insurance. comparatively It came automobile is short. logical fairly ais obvious conclusion day of his testi- second the end near pur- testimony that the car was that mony. direct statement to He made no Meyers’ me chased for use. It seems to pur- use the Committee as to whose car as that what the indictment recites respect meaning in His that chased for. truth is fair an inference as a matter of inference. What testimony. from Lamarre’s actual Cadillac, car, a company that the had one put much and the court Government Capitol purchased Cadillac Com- from the upon stress the car Lamarre’s reference to pany Washington, where lived “Company having as the car” and Dayton (the corporation was in and Vanda- Washington. driven it once from Ohio to car, lia, Meyers picked Ohio); that out not, my scraps testimony But those it; Mey- bought delivery that took pur- mind, affirmation that the car was it; Meyers had the had access .ers company and not for the use of the chased it; "keys in Wash- that the remained car Meyers. Meyers kept ington; garage; it in his bought no clear the car was and titled can in Lamarre’s find :that name; purchased .company (Lamarre) was inference car was that he that the corporation in con- .only the use critical officer had access who car; purchase for the use of arrangements tradistinction (cid:127)to the insurance; Meyers. Unless his was clear get the in- car was rto difference, upon $3,- this indict- Washington; conviction sured that the car cost ¡000 ment, drawn, be sustained. One cannot was sold to father-in-law truth, $1,400; perjury, the indictment it was sold because “We the other (cid:127)for it”; other, ; says. he said one and not the they no further use for “had Unless perjury fails. prosecution for this (cid:127)not too much use it.” None (cid:127) disputed; facts these elemental has posed by phase problem truthfully before to them presented a witness case the Committee. truthfully both swears testimony. That' witness of the Government and same The contention *21 part perjury that of his testi- guilty holding of the court is that this factual false, though even other mony on positive which is so to the effect that truthfully, testifies and even matters he “for the use of the Avia- purchased car was which is false. he recants that Corporation” though make tion Electric as bar, num- Lamarre testified to pur- at the case since the fact was that perjury, car, simple Meyers. facts about the all of personal ber of use” of “for chase was true; ques- respects His were admittedly statements in these true. facts are im- that was The real convey exactly a false was done. thereby tion is: Did what falsity fits what issue truth revolves about pression ? If what salary says says truth of account The Government the indictment was the itself. transaction, perjury. spurious, Meyers In that the that guilty of account he is not corporation, words, my was the La- view, either of two owner that if false, salary, that impressions, the other marre never such true siphon- merely gathered recitation of the account was a device for can be from a true profits Meyers. fails. But indictment facts, ing elemental conviction does raise that issue. We cannot re- charged The third count of the indictment charge write that whereas the indictment to Lamarre, “the cost of re- knowing that that corpo- Meyers the truth was owned the apartment Bennett E. decorating profits, including ration all its what was * * * paid for out been charged salary, Lamarre Corpora- Electric the funds Aviation falsely represented salary credited the Senate tion”, falsely testified before charges against own and that the redecoration Committee the cost of gifts by were him. himself, Blériot H. La- gift “was a from “gift”. The Much is the word made of marre.” quite sim- facts shown the record what the Again with care we must note ple. appeared When before Lamarre says. difference be- It makes the Committee, length interrogated he was at “paid of” the tween the funds for out of throughout morning concerning his corporation himself” gift “a from corporation’s relationship Meyers, perjury. I difference between truth during much discussion the course which validity of have some doubt as to the “gifts” Lamarre to was had of from vagueness; pay- because of count its and from deco- to Lamarre. The might correctly ment described both apartment rating of the was not mentioned. expressions my dissent But does used. recess, After said: the luncheon Lamarre from that not arise view. thing is one like be- “There would clearly, emphatically and in Lamarre proceed. you is, great fore we laid a complete the Commit- testified before detail you morning deal of stress what this Meyers’ redecorating the cost of tee that Meyers. gifts called General apartment the funds of for out of that, amplify my like statements on be- corporation. disputes that No one liter- cause at the it a time consider paid by He said the 'bills al fact. gift, but it was after General checks, corporation corporation drawn Washington, apartment come to he had accounts, charged as sales bank and first decorated, paid and I the decoration of corporate expenses on the books. iden- apartment, furnishings.” corporate In all tified the checks. these Throughout afternoon and next literal, respects he testified was the to what questioned great morning, Lamarre was at truth, alleged and no one has since actual length great concerning this detail is, be, So far and can otherwise. there He identified checks and transaction. dispute what but that the in- explained great length entries, the book says was the truth. dictment repeatedly reasserted claim that he Mey- difficulty payment this because of because caused alleged arises Until characterized ers had done for him. almost the interrogation, expression gift as a Mey- transaction from himself to close of this Then the “gift” following not used. ers. occurred: told the Committee that the cost you redecorating apartment ($10,- Rogers: consider What 000), charged $10,000 now, talking I am about having on the cor- afternoon; Saturday expense, Saturday as a porate books business morning lat- now; speaking account about removed I am now what do er and entered $10,000 against salary ? charge his own consider account. *22 m it- pretty Senator Cain: transaction said, it But As I “Mr. Lamarre: your absolutely do with on self obligation nothing has much, I a moral considered it Mey- corporation business? General my part something for to do for he had done things ers because of the Lamarre: That is correct. “Mr. me. have been happens to Cain: “Senator It college Look, you are a Rogers: corporation? “Mr. from corporation. president of the graduate and “Mr. Lamarre: That is correct. Was I mean. You understand what your never that was “Senator Cain: But repayment to General $10,000 for a loan a personal intention; your thought it was or Meyers ? personal personal a obligation by wish to No, was not. Lamarre: it “Mr. friend? any business part of Rogers: it “Mr. Was correct.” That is “Mr. Lamarre:. at all?

deal Upon use of the record part expression “gift” plays little “Mr. Lamarre: No. question perjury. urge Lamarre did not had no considera- Rogers: it “Mr. And expression upon the Committee. tion. factual elements testified to the constituent Lamarre: “Mr. No. merely an the transaction. “Gift” consideration, so legal Rogers: No “Mr. in- inference, characterization, which his right ? is that gift, must have a it success, attempted, terlocutors with limited put his mouth. into been con- It could have “Mr. Lamarre: n my upon examination of view that gift. a sidered transcript stenographic the official what it know what Rogers: I do not “Mr. Committee, Lamarre said t-he Senate be; ? what was it could should have directed a verdict trial court you I felt I told how “Mr. Lamarre: acquittal upon this indictment. The basic about it. presented defense was whether issue alleged what Lamarre said question. ask one Cain: Let me “Senator La- that he said. issue was what it if possibly it be could considered What n wasnot n wantedto generally respects. in other marre said you outright gift instances, In of the each three steno- Mey- General something do graphic that he showed told the . ers. alleged Committee the indictment right. legal That is In Lamarre: “Mr. fact; only by separate be the true sense, undoubtedly gift. would phrase purport the whole chance In what sense other Cain: “Senator testimony. perjured himself in n anything gift or a other than it be prosecu- respects in this is irrelevant gratuity friend ? to a present or tion. personal my feel- own court, Lamarre: I dissent the decision was, I it, was was sort departure ings about to me to be because it seems n him, or I obliged principle to do that wanted can from the basic that conviction n things that he proof him because only upon alleged it for of the acts be had for me. done indictment. '.had notes shorthand Appellant’s assignment error concern- said, sure, to be what he evidence of ing conduct, the court’s his criticism of only it was not the admissible evidence charge jury, the court’s to the com- concerning Rogers’ testimony it. 'plaint concerning government ar- counsel’s equally competent, was admissible gument jury, impress to the us as given before whether or after the tran discussion; requiring proper but we deem it script was received in evidence. Statements refer, briefly possible, prop- to the alleged perjurious proved by be osition advanced division person them, who heard as well as dissenting opinion which is filed herewith. reporter who recorded them in short opening said, theAt the dissent it hand. given by testimony "The Lamarre before pre- A similar somewhat situation was presented the Senate Committee was to the Herzig Co., v. & sented in Swift 146 F.2d jury upon preju- the trial so unfair and 444, decided the United States Couit dicial a fashion as to constitute reversible Appeals for the Second Circuit in 1945. error.” In trial case the court had excluded concerning reference to the fact the oral the earnings William Rogers, partnership ground chief P. counsel senatorial a on the the books committee, who had examined be- account best evidence. After consequently pointing scope for the subcommittee and out real nature and rule,12 given by all the heard evidence saidj before best court 146 F.- 11 Meade, 1830, Evidence, 1, Kelvey, 604, Ed., Keene v. 3 Pet. 28 5th 1944: Co., 1; Herzig Cir., application, v. Swift & 2 U.S. “In its modern the best evi 1945, Tavern, 444; In 148 F.2d Ko-Ed rule re dence amounts little more than 1942, 806, requirement Cir., 129 F.2d A.L.R. the contents of a Com’r, Cir., writing 357; proved by R. & v. Hoe Co. must be the introduc 630; writing itself, 30 F.2d Boitano v. United tion of the unless its ab States, Cir., satisfactorily 324. 7 F.2d sence be accounted for.”' doing quoted ap Wigmore, Evidence, tile so court also 4 witii See §§ following proval 1177-1182, Ed., om statement fr 3d

notes before transcript, as to the issue contents of the jury. He testified that he took down the government attempting not questions put and answers that were prove contained; what it issue day; Brzezinski on that that he made a Rogers said. transcription notes, typewriting from the transcript asked what the contained himself, transcription but what Lamarre’s had been. * * * dictate it. An United assistant “ * * * attorney present States who was in the' remarking, After there grand jury room testified sub- also is line of holds that a steno cases which stance what Brzezinski said on that oc- transcript graphic not the- evidence is best casion. It contended court erred legal was said. There is also a of what admitting ground on the applies evidence rule cliche that best ‘not that it was best This evidence.’ evidence”, documentary the dissent only to objection. Any a frivolous has one who opinion that the rule outmoded ing asserts heard an oral statement made and re- 'to ought “the courts establish and that may testify members it to what was regard said. We correct rule.” new and » $ * principle which we set cases forth cliche, legal being, cited as have Appeals Court of Third and sound doctrine which established held, Tavern, Circuit Re Ko-Ed prepared to renounce. are not we 806, 810, 129 F.2d the best evidence rule application have does not which the rule best evidence shown to be With the clearly seen Light’s inapplicable, here seeks it: “As to that was give dissent unfair”, ap- ownership bankrupt corporation, “preposterously as the neither half asserts, all, permit at president pellant unfair Kochansky, nor William com- hearing evidence to be pany, before the the Rogers had Light fifty testified. he and each owned introduced referee that 81á indicted, perjury pages. When proving Since both methods of transcript. The pre- copy moved prosecution could for a permissible, opposed, on the Attorney United it chose. States proof sent its order

notes sure, accepts To be the writ the best latter. evidence es forgery, stenography be attacked for ing tablished an ac alteration circumstance. But absent curate or some such science. The basis for the decisions impeachment, writing succinctly such is immutable is quoted stated in the 1892 case event, leading by evidence from date where as Wigmore: Professor “Ste subject nographers in many

notes translated applies only evidence rule best to him are the best evidence of what a witness description practice said, documents is a of and has in such a sense toas exclude the pronouncement principle. not a testimony intelligent bystander The an of of who principle is as between human paid particular that recollec has heard and attention to 7 choice; tions the law no conclusive makes witness.” only it makes conclusive choice be a as But have before us no we such situation. tween evidence which certain is and that Stenographic highly has reporting become which is uncertain. developed, stenographic reports and official point It be remarked at upon this many that of impor- relied the most transcript document, in the case at bar is a early 1909, tant of affairs life. Even as as inaccuracy challenged not for or “Experience alteration. a court referred to having possesses every It characteristic which impartiality the demonstrated the almost most devotee literal of established accuracy rules absolute of the notes of court ste- evidence could ascribe to written evidence nographers” as. the legislation reason for justification preference of a contract as making admissible evidence a court ste- writing over the nographer’s report.8 such recollection present In the in- parties. least, stance, disputed no has one cor- transcript. rectness of the view, my the court iterates an error says point it that the best evidence is view, rule From the theoretical question: limited cases where the poses contents (1) case Given both an proved. writing be purpose stenographic are to The transcription of accurate of a 6 Wigmore, Evidence, 1892, 537, Miller, 549, 4 See § 1173 et 35 S.C. 15 S.E. seq. 1940), (3d many ed. cases Wheaton, there 29, cited. Wilmoth v. 81 Kan. 7 Wigmore, Evidence, (3d § 1330 Ed. P. 39. quoting J., 1940), McIver, O. in Brice v. elementary I an two-day hear- take it as that indictment during witness’ allege the must an ing one of the commission of act (2) the recollection of not act complainants rascality; that mere that the offensive the substance precision, clarity must testimony, alleged as evi- be is the latter admissible perjury? certainty; upon the trial the Govern- dence of the witness trial apply is, prove ment commission of the act think To that it must not. misdeed, crystal- alleged, however meaningless ignore formula no conviction; proved, is, support as a and that clear actualities. The will against proof simple, indisputable fact, the best matter of accused need defend except alleged. issue principle rote of the act evidence. not applied. correctly, ought now be resolved the law to be before us cannot understood, or unless we first indeed even suggest re- stenographer’s not exactly note care what attentive port unimpeachable; question says the Senate indictment Lamarre told here. Committee. support my find some view the charged first count Supreme early as 1878 authorities. As “Meyers that Lamarre testified Court, upon problem, ruling seemed financially interested connect- or to qualify the traditional view. It said that Corporation ed with Aviation Electric stenographer has been em- “Where Dayton Vandalia, Ohio, during those happen ployed, rarely anyone can 1944, years 1941, 1942, e., 1940, [i. testify can to more than the substance * * any of them”. or 1947] (Italics sup- very specific, precise charge. plied.)9 693, of And Volume Section is a Evidence, quite easily Criminal dis- Also it is clear and understood. Wharton’s cases, say: It interest or connection cussing the has this “How- relates to financial any part Meyers ever, primary in with since is a rule of evidence of sort corporation. relates to produced, must that the best evidence required practically Conviction would seem that since all testi- 1940-47. allegation prove the mony stenographers, now taken a Government to

notes company actually said, had no as I