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(274 F.) ment took nearly three weeks in which to introduce its evidence. The defendants made no opening statement of their case. at the beginning of the trial, and neither the court nor the prosecution knew what position the defense would take until the government rested. Certain government witnesses testified that the defendants Heitler, Greenberg, and Perlman agreed to and did return a part of the money received from purchasers whose whisky was taken from their trucks in Chicago by certain “highwaymen" on the night the car was unloaded. That three truck loads were held up in the streets in Chicago; that the highwaymen, who the witnesses said were policemen, took two trucks and their loads of whisky-is not disputed. Witnesses, who stated they paid Heitler, Perlman, and Greenberg some $31,000 for this whisky, testified for the government, and said they demanded the return of this money, as they had been guaranteed police and federal government protection, which was explained to mean protection against holdups "other than regular holdups.” They further stated that money had been returned to them, or to others who gave them money, for this whisky. The defendants denied returning any money to any one. One witness, on rebuttal, testified that certain sums of money were sent to him in an envelope after a conversation with Heitler and Perlman.

Defendants likewise denied all knowledge of the shipment and of participation in the conspiracy, specifically denying that one Moore was employed by them to sell any part of the carload of whisky. Moore was called on rebuttal to dispute this testimony. Other testimony need not be detailed. Certainly, under the circumstances, a fair exercise of the court's discretion demanded that the ultimate facts, which the parties for weeks had sought to prove or disprove, be illuminated by this persuasive testimony.

[5] As to the request for a continuance for a day, I cannot, in view of the situation disclosed at the trial, doubt the propriety of the ruling. Three witnesses only are claimed as surprise. The first was Moore. The evidence showed defendant Perlman met and talked with Moore, who was avoiding the government. Perlman said he talked with Moore about his testimony before the government saw him. Moore testified to certain conversations with Perlman, and they were denied by Perlman. The defense knew Moore would be called, if he could be located by the government. This was known several days before Moore testified.

Another witness, a garage keeper, was brought into the court, and several defendants asked if they had seen him on the night the whisky was unloaded. This occurred several days before the defendants closed their case. On cross-examination, the defense showed they knew more of this man's history than he knew himself. With many closely typewritten pages before him, counsel for the defense cross-examined him searchingly and particularly in reference to this night's occurrences, showing not only no surprise, but skill and industry on the part of defendants' investigators in preparing for his cross-examination.

The other witness testified as to a conversation with Heitler and Perlman respecting the payment of money and his refusal to accept

checks. The conversation was on a street corner outside a poolroom. No one was present but this witness and the two defendants, Heitler and Perlman. The latter two denied the conversation in toto. The defense here, too, was apprised of the witness' coming appearance several days before he was put. on the stand. Notwithstanding this situation, the court did take a short recess, and the defense produced a witness, who left the impression that further delay was unjustifiable.

Did the court err in refusing to give the proposed instruction? The court was favored with some 20 proposed instructions, submitted by various defendants, covering the subject of testimony of accomplices. In fact, the proposed instructions submitted by all of the counsel must have covered 100 pages. Under these circumstances, as well as for other reasons, it became necessary for the court to make its own analysis of the case and submit its views of the law in its own language. Of course, the proposed instructions were helpful; but it was not consistent with my idea of a proper analysis and a concise presentation of the issues to incorporate all of the proposed instructions, even though many of them, standing alone, were unobjectionable.

Complaint is now made, however, because the court refused to give a proposed instruction advising the jury that it should not convict the defendants upon the uncorroborated testimony of accomplices. The instruction as given reads as follows:

“Certain of the government's witnesses have been called accomplices. They are witnesses who admit that they are parties to the crime charged in the indictment. Their testimony should be scrutinized closely, to ascertain whether they are influenced by any hope of immunity or by any other unworthy motive. Admitting their own guilt, their testimony is not entitled to the same weight as the testimony of an innocent party,

But the fact that certain witnesses who have testified may be accomplices

will not justify you in rejecting their testimony on that ground alone. The government in criminal cases must sometimes offer the testimony of those who were parties to the crime. Innocent individuals may know nothing of the details of the crime, and only the guilty parties can enlighten you about the criminal transaction.

The jury should therefore approach his (the accomplice's] testimony with some caution. They are required to scrutinize it closely, not rejecting it, but scrutinize it carefully, and only cautiously accept it.

[6] The vice of the charge lies in the fact, so it is claimed, that the court did not advise the jury that conviction should not rest upon the unsupported testimony of accomplices. To have given this charge would, I think, have been error. Since the decision in Caminetti v. United States, 242 U. S. 470, 37 Sup. Ct. 192, 61 L. Ed. 442, Ann. Cas. 1917B, 1168, courts have generally recognized the rule therein announced that conviction may rest upon the uncorroborated testimony of an accomplice. A few of such cases are herewith collected. Graboyes v. United States, 250 Fed. 793, 163 C. C. A. 125; Kelly v. United States, 258 Fed. 392, 406, 169 C. C. A. 408; Reeder v. United States (C. C. A.) 262 Fed. 36, 42; Ray v. United States (C. C. A.) 265 Fed. 257; Freed v. United States, 266 Fed. 1012, 49 App. D. C. 392; Harrington v. United States (C. C. A.) 267 Fed. 97;, Block v. United States (C. C. A.) 267 Fed. 524.

[7] Counsel for defendants contend, however, that the proposed

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(274 F.) instruction only goes to the extent of advice from the court. In other words, the proposed instruction did not require the jury to acquit unless the testimony of accomplices was corroborated, but did express the court's views on such testimony. If such proposed instruction was merely intended as an expression of the court's opinion of the weight to be given to testimony of accomplices, it was clearly a matter of judgment on the part of the trial judge whether such expression of opinion should be given or not. Certainly I have no hesitancy in declining to accept any hard and fast rule governing the weight of testimony of certain witnesses. If the trial judge is to express his opinion upon the evidence (and I certainly think he should exercise that privilege whenever he thinks it necessary), he should be guided by the testimony in the instant case rather than by any rule that may be generally applicable. In other words, the testimony of accomplices may be weak. Courts may hesitate about accepting it. But in certain cases the court may be thoroughly convinced that it is the truth. Should he, therefore, notwithstanding his general opinion of this class of testimony, ignore the conclusions reached in the individual case, and advise the jury in a manner contrary to what his judgment tells him is the fact? I have no hesitancy in answering this query in the negative.

Criticism is also made because the court refused to charge the jury as requested by defendants concerning the character and nature of the conspiracy charged in the indictment. In this charge the court was guided by the fact that each and every one of the attorneys, both in argument to the court, and in argument before the jury, stated that there was no question of the existence of the conspiracy, and that the only issue between the government and the defendants was over the identity of the parties to the conspiracy. In other words, while each denied that his client was in the conspiracy, the existence of the conspiracy as charged was conceded. It was with this concession as a background that the court charged the jury as it did in respect to the conspiracy.

Remarks of Counsel. Numerous statements in the prosecutor's opening argument to the jury, which was decidedly brief, were challenged. At the time the court was under the impression that an experienced counsel was endeavoring to embarrass the speaker, who was inexperienced in presenting a case to the jury. Scarcely a thought was presented without interruptions and challenges. The court unfortunately was occupied in preparing its charge, and perhaps did not hear all of the argument. Only a few of the criticisms will be considered.

[8] It is claimed that government counsel referred to the defendants' alibi as a “faked alibi"; criticism being directed to the word "faked.” Webster's International Dictionary defines the word "fake" as “to make; to construct." As used by counsel, it was, I think, understood to mean a made, a manufactured, or false alibi. To characterize it as a false or “faked” alibi was certainly justifiable from the government's point of view, for it was the contention of the govern

ment that the witnesses, who testified to the facts that established the alibi, were either mistaken or they testified falsely.

[9] Counsel is also charged with having said, speaking of Heitler : “How much like Shylock he looked. He demanded his pound of Aesh and he bled his victims.'

Also:

"Mike was playing a part when he sat in this witness chair. He is a great actor. He wanted to impress you how meek and humble he is."

It is claimed this statement and the argument made in support of it was an appeal to prejudice based upon the nationality of Heitler, who counsel stated was a Jew. The court observed that, so far as the comment was directed to the appearance or manner or conduct of Heitler, as shown by the testimony, it was proper; adding, however:

"I wish to say, however, that if any one of you thinks it has any reference to religion in this case, you cannot decide on race or religion. Race or religion has no bearing in this case any more than sympathy or prejudice. As to whether the defendant Heitler impressed you as playing a part or not, that is for you to say, and is a proper statement for counsel to argue.”

The attorney also promptly added : "I wish also to state that there was no idea on my part to bring in any. body's race or religion.”

It may be true that the Shylock that Shakespeare immortalized was a Jew, but the character pictured by the master's pen in the Merchant of Venice has been found in all ages, among all races, and in all businesses. Unfortunately, no race has a monopoly of him-no age that does not produce too many of him. Thus it is, when one is selfish, covetous, grasping, when he drives a hard and onesided bargain, he is not infrequently referred to as a Shylock. It was not for the court to determine the wisdom of the reference, or the appropriateness of the characterization. The court was merely to determine whether there was any evidence to justify the argument.

In the present case, witnesses testified that Heitler, Perlman, and Greenberg bought a carload of whisky for $32,000, and sold it to bootleggers for $135,000, requiring the purchasers to pay cash in advance; that they gave no receipts for moneys advanced, and did not bind themselves to deliver any particular grade of whisky, and this all in violation of the law of the land. Nevertheless, when defendant's counsel subsequently insisted that this statement was a reflection upon the defendant Heitler's race and religion, the court specifically charged the jury to disregard the entire statement.

[10] Further objection was made to the statement purporting to be as follows:

"Mike walks to the chair, and you would think that Mike was going to the electric chair; he was so solemn. In answer to the questions of his counsel, he is meek and humble. Why, it is not the same man that threatened Morris Frank with death in the Englewood station. It is not the same king of the underworld who, with a snap of his fingers holds the lives of men in his grasp. No; but he cried."

(274 F.) Objection was made because of its appeal of prejudice, and because the statement was unsupported by the record. There was testimony that Heitler threatened Frank with death, and that it occurred in the Englewood station. There was testimony in the record that Heitler had been convicted and sent to the penitentiary for violation of the so-called Mann Act, or White Slave Law (Comp. St. $$ 88128819). There was testimony that he had run various places, and that some at least had been closed up because of their bad repute. The court, nevertheless, ruled in reference to the allegation that Heitler was "king of the underworld": "I recall no testimony that supports such argument." And he further stated: "The statement that he was king of the underworld and that he holds the lives of people in the snap of his fingers is improper.”

[11] Counsel is also charged with having said, when referring to Heitler weeping upon the witness stand:

"If all the tears that Mike caused were gathered in one reservoir, Mike Heitler could swim in it, asking for mercy.

Whether such statement was made or not, the court cannot say. At any rate, the court did not so understand it at the time. Later, defendant's counsel having referred to it, the court specifically and in its last charge to the jury instructed them as follows:

"During the argument of the attorneys, some reference was made to tears having been shed. I do not believe I understood counsel making the statement at the time. I am not sure, but I want to now, at this time, admonish you that anything outside of this record, outside what was received on this trial, is not proper."

Of course, the foregoing excerpts from the argument of assistant prosecutor do not fairly represent the entire argument. Viewed as an entirety, no impression could possibly have been given the jury that would have influenced it to decide the case other than on the facts. So satisfied were the defendants with the impression which the government prosecutor left that, I am advised, they seriously considered the advisability of waiving any and all argument.

It follows that the motion for a new trial must be and is hereby denied. The court will impose the sentences on Wednesday, May 11th, at 9:30 a. m. The clerk will notify all counsel.

MECHANICAL CONST. CO. v. LOCOMOTIVE STOKER CO.
(District Court, W. D. Pennsylvania. July 5, 1921.)

No. 323. 1. Patents 328979,849, claims 9 to 12, for distributing plate for auto matic stoker, held valid.

The Hanna patent, No. 979,849, claims 9 to 12, for an automatic stoker, the subject-matter of which was a distributing plate containing channels for spreading the fuel over the grate area with uniformity, held to disclose a construction which accomplished the purpose desired and by which a new and useful result was obtained so as to be valid.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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