ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS.

BROWNE v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. December 7, 1905.)

No. 42.

1. GRAND JURY-INDICTMENT-SUFFICIENCY-UNITED STATES ATTORNEY-REGULARITY OF APPOINTMENT.

It is no objection to an indictment that the assistant United States attorney, who appeared before the grand jury finding the indictment, took his oath of office the day before such appearance, and, indictment being found, resigned after holding office only six days; and it is immaterial whether the salary of such assistant was illegal, and whether he was also counsel for persons having claims against the government. 2. CUSTOMS DUTIES-CUSTOMS EXAMINER-INDICTMENT.

An indictment charging a customs examiner with knowingly passing invoices containing false statements as to the weight of imported merchandise will not be held insufficient on the theory that the law provides that weighing is to be done by officers known as weighers, and that therefore the examiner could not legally pass the invoices.

3. CONSPIRACY-INDICTMENT CHARGING PART-VIDELICET.

The first part of a count in an indictment set forth that certain persons "unlawfully did conspire" to defraud the United States, the conspiracy "to be effected in the manner following; that is to say"-and the following part stated the details of the alleged conspiracy. Held, that the latter part is not to be construed as a videlicet separate from the charge of the indictment, but that the whole sentence may be considered as the charging part.

The allegation, in an indictment for conspiracy to defraud the customs revenue, that certain acts were done "to the end that" less than the legal amount of duties should be collected by the collector of customs, held sufficient as an allegation of corrupt and fraudulent intent. 5. CONSPIRACY-INDICTMENT-REFERENCE IN ONE COUNT TO MATTER IN AN

OTHER.

The first count of an indictment alleged conspiracy, and each of the other counts presented a different overt act, but did not repeat the presentment as to the conspiracy in furtherance of which the act was committed, but did state that such act was "in further pursuance of the said unlawful conspiracy in the first count in this indictment mentioned 145 F.-1

and described." etc. Held, that repetition may properly be avoided by so referring from one count to another, and that this was a sufficient reference to the first count to incorporate the matter therein with that in the count containing the reference, without expressly stating that such matter is made a part of the latter count.

6. JURY-EXAMINATION OF TALESMEN.

Held without merit, the objection that on a criminal prosecution the defendant should have had opportunity, before being compelled to make his peremptory challenges, to examine on voir dire not only the jurors whose names have been drawn from the wheel and who have gone into the box, but also the entire panel from which vacancies caused by challenges may be filled.

7. CONSPIRACY-EVIDENCE-PROOF OF EX POST FACTO ACTS.

An indictment charged the defendants with having conspired together "before and on" a certain date. Held that, while evidence of acts done after that date was inadmissible as direct proof of an act then done in furtherance of the conspiracy, it was competent as proof of acts done before or on said date.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Conspiracy, § 100.]

8. CRIMINAL LAW-TRIAL-CHARGE TO JURY-REQUESTS TO CHARGE.

In charging the jury, the judge is under no obligation to adopt the verbiage of any particular court. If he has already set forth a rule of law correctly, he may properly refuse to repeat it in a different form of words which may have been used in the opinion of some court.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 2011-2014.]

9. SAME REASONABLE DOUBT-REPUTATION OF DEFENDANT.

Regarding the rule that a jury must be convinced beyond a reasonable doubt of the guilt of the defendant, held not reversible error to refuse to charge, in a case depending upon circumstantial evidence, that evidence of good character is of itself sufficient to create a reasonable doubt to which the defendant is entitled.

10. SAME-NEW TRIAL-CO-CONSPIRATORS.

Held that, where two persons on trial for conspiracy had been found guilty, it was no error to refuse a new trial to one of the defendants and grant it to the other.

In Error to the District Court of the United States for the Southern District of New York.

For proceedings below, see 126 Fed. 766 and 128 Fed. 615.

This cause comes here upon writ of error to review a conviction of the plaintiff in error under section 5440, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3676], which reads as follows: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than $1,000 and not more than $10,000, and to imprisonment not more than two years."

Three persons were included in the indictment, A. S. Rosenthal and Martin L. Cohn, composing the firm of A. S. Rosenthal & Co., importers of silk goods, and plaintiff in error, an examiner in the appraisers' division of the New York custom house. The contention of the government was that the members of the firm were to enter goods knowingly and fraudulently upon false invoices made abroad -false as to weight and otherwise--and that Browne, the examiner, when these invoices should get to him in the due course of business, should disregard his duty as an examiner, should neglect and omit to examine the goods covered by them as the law demanded. and should pass them along reporting the invoices to be correct so that, on the basis of his report, the entries might

be liquidated and the government deprived of its lawful duties. Five separate overt acts (three by the firm, two by Browne) were charged, and each was made the subject of a separate count.

Rosenthal forfeited his bail and did not appear, Cohn and Browne were tried together. The jury found each guilty as charged in the indictment with a recommendation to mercy as to Cohn. Subsequently, upon motion, the trial judge set aside the conviction of Cohn and granted him a new trial. In making this disposition of Cohn's conviction the judge filed an exhaustive discussion of the testimony (128 Fed. 615), which makes it unnecessary to rehearse the same here. It will be sufficient to refer to such of the 196 assignments of error as are of moment or have been pressed in argument upon the attention of the court.

The indictment sets forth that Rosenthal, Cohn, and Browne "before and on the thirtieth day of July, in the year of our Lord nineteen hundred and one, at the city of New York aforesaid, in the district aforesaid, unlawfully did conspire and agree together, and with divers other persons to the said grand jurors unknown, to defraud the said United States of large sums of money then legally due and to become due to the said United States, and which should have been paid by the said Abraham S. Rosenthal and Martin L. Cohn to the said United States, as duty upon divers importations of dutiable goods, wares, and merchandise into the said United States, from foreign countries, then made and thereafter to be made by the said Abraham S. Rosenthal and Martin L. Cohn at the port of New York, in the said district, which said unlawful conspiracy then and there was one which was to be effected in the manner following; that is to say: The said Abraham S. Rosenthal and Martin L. Cohn were to cause such goods, wares, and merchandise to be shipped from foreign countries consigned to them under the firm name of A. S. Rosenthal & Co., at the said port of New York, at which port they, the said Abraham S. Rosenthal and Martin L. Cohn, upon consular invoices containing, and known to them to contain, false statements as to the weight of the said goods, wares, and merchandise and false descriptions of the same goods, wares, and merchandise, were to make their written estimated entries of the said goods, wares, and merchandise at the custom house of the United States at the said city and port of New York, with the collector of customs at that port, upon their arrival, and when certain of the said goods, wares, and merchandise should according to law be designated and sent to the public stores at the said port for examination and appraisement, and when the same goods, wares, and merchandise, and the invoices accompanying the same, should be given to the said Charles C. Browne (who was then an examiner of imported merchandise at the said port) for examination and appraisement, he, the said Charles C. Browne, was thereupon to neglect and refuse to ascertain the true weight and nature of the said goods, wares, and merchandise, as it then and there was his duty under the law and under the practice at the said port to do as such examiner, and was, contrary to his duty as such examiner, to knowingly make false returns and reports upon the said invoices as to the weight and nature of the said goods, wares, and merchandise, to the end that in either case the said entries thereof and the duty upon the same should be, according to the practice at the said port, liquidated by the said collector upon the said returns and reports, and less than the amounts of duty legally due thereon collected by the said collector." The indictment then proceeds to set out the overt acts in separate counts. Judson G. Wells and Louis Marshall, for plaintiff in error. W. Wickham Smith, Special Asst. U. S. Atty. Gen. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

LACOMBE, Circuit Judge (after stating the facts). It was sought by plea in abatement to quash the indictment, upon the ground that W. Wickham Smith appeared before the grand jury on April 2, 1903, when the case was presented to that body and indictment

found. This point was first raised by a motion to quash. Attached to the motion papers was the following document:

"Department of Justice, Washington, D. C., March 26, 1903. "W. Wickham Smith, Esq., New York-Sir: You are hereby appointed an assistant to the United States attorney for the Southern district of New York with compensation at the rate of $3,600 per annum. Your official residence is fixed at New York City. Before entering upon duty please execute the inclosed oath of office, returning it to this department.

"Respectfully,

P. C. Knox, Attorney General.

"Through Henry L. Burnett, Esq., United States Attorney, New York."

It is stated in the brief submitted for plaintiff in error that Smith tock his oath of office as such assistant United States attorney on April 1, 1903, the day before the grand jury took up the cause, and that he resigned his position as assistant United States Attorney, having served six days as such, on April 6, 1903. The motion was denied, and the same objection subsequently renewed by plea in abatement, which plea was demurred to and demurrer sustained. The plea contains the averment that Smith, as an assistant to the United States attorney for the Southern district of New York continued his investigations and prosecution of defendant, and that "the written appointment of W. Wickham Smith as assistant to the district attorney is dated the 26th day of March, 1903, and that immediately after the finding of said indictment on April 2, 1903, the said W. Wickham Smith resigned from said office." Upon the face of the plea, therefore, it stands conceded that he was on the day in question an Assistant United States attorney for the district, and we know of no reason, and are referred to no authorities, which would sustain the proposition that there is any impropriety in such an assistant appearing before the grand jury to present a criminal cause to their consideration. No impropriety in his conduct or methods before that body is charged. Whether the government should have selected him as such assistant, in view of the fact that he had already familiarized himself with the case upon retainer by the Merchants' Association, which was making an investigation of customs frauds, whether the amount of the salary named, $3,600, was in excess of the statutory designation or of the appropriation, whether at the time of his appointment he was or was not counsel for individuals who had claims against the government, are questions wholly immaterial here. It stands conceded that he was an assistant United States district attorney. It is not contended that he misconducted himself in any way before the grand jury, and that is sufficient to dispose of the plea. It is wholly without merit.

The points principally relied upon in argument are directed to a criticism of the indictment-some 80 pages of the "brief" are devoted to that and to the plea. Quite naturally so, because a careful reading of the testimony in connection with the original exhibits satisfies us that the trial judge was entirely right in the conclusion (expressed in his decision on motion for new trial) that the evidence presented upon the trial by government "amounted to a demonstration that could have left no properly equipped mind unconvinced that there was a fraudulent scheme formed * * for the purposes