Beavers v. United States, 3 F.2d 860 (6th Cir. 1925)

*861 *862 Thomas J. Walsh and A. E. Weinstein, both of Memphis, Tenn. (A. B. Galloway and Ernest S. Bell, both of Memphis, Tenn., on the brief), for plaintiffs in error.

W. H. Fisher, Asst. U. S. Atty., of Memphis, Tenn. (S. E. Murray, U. S. Atty., and A. A. Hornsby, Asst. U. S. Atty., both of Memphis, Tenn., on the brief), for the United States.

Before DONAHUE, MACK, and KNAPPEN, Circuit Judges.

DONAHUE, Circuit Judge (after stating the facts as above).

The motion for a directed verdict was properly overruled, for the reason that the government offered substantial evidence tending to prove each and every material allegation of the indictment. This court has no authority to determine the weight of the evidence.

It is insisted, however, that there is a fatal variance between the allegations of the indictment and the evidence, in that the indictment charges that this interstate freight was shipped by Duke & Co. from Durham, N. C., and the evidence offered in support of this allegation relates to shipments made by W. B. Duke Sons & Co., Inc., of Durham, N. C., a branch of the Liggett-Meyers Tobacco Company. The gravamen of the offense is the breaking of the seal and stealing from a car containing freight then being transported in interstate commerce. The consignor is named in the indictment for the purpose of informing the defendant of the charge against him, and to protect him against another prosecution for the same offense. Bennett v. U. S., 194 F. 630, 114 C. C. A. 402, affirmed Bennett v. U. S., 227 U.S. 333, 338, 33 S. Ct. 288, 57 L. Ed. 531.

There is no conflict in the evidence as to the identity of the consignor, regardless of the several names by which it is known. The government introduced substantial evidence tending to prove that W. B. Duke Sons & Co. is also known and designated in Durham, N. C., as "Dukes" and "the Duke Company"; that no other person, firm, or corporation of that name is, or was at that time, shipping goods from that point; and that W. B. Duke Sons & Co. and the consignor named in the indictment as "the Duke Company" are one and the same corporate entity. Bennett v. U. S., supra; Putnam v. U. S., 162 U.S. 687, 690, 16 S. Ct. 923, 40 L. Ed. 1118.

It is further claimed that the court erred in admitting the evidence of certain employés of the railroad company in reference to waybills covering these interstate shipments of freight, for the reason that these witnesses had not made these waybills and could not testify that they were the original waybills made at point of shipment. These witnesses, however, did testify that these waybills came to them through the regular channels, that they checked the same with these interstate shipments, and that they fully covered the same. Later the government called as witnesses employés of the initial carrier at Durham, N. C., who testified that these were the original waybills, made in the usual course of business and transmitted in the usual way to the employés of the carrier or carriers having duties to perform in connection therewith. As a rule the testimony of no one witness can cover the entire transaction. For this reason a witness may be permitted to testify as to any relevant fact or facts within his knowledge, and his testimony in reference thereto is admissible if, before the government closes its case, it is shown by competent evidence that the facts in relation to which the witness has testified are part and parcel of the same transaction that constitutes in part or in whole the offense charged in the indictment. Otherwise his evidence should be withdrawn from the consideration of the jury. While it is perhaps the better practice to prove these facts in sequence, nevertheless the order in which evidence may be admitted is largely within the discretion of the trial court, and if from the whole record it appears that the evidence is competent and relevant, the order in which it was offered and admitted is not important.

It is also claimed that the court erred in permitting the district attorney to *863 cross-examine a witness called by him on the part of the government in reference to the contents of an affidavit made by the witness at the police station, and which appeared to be in direct conflict with his testimony upon the stand. This was not error. Sneed et al. v. U. S. (C. C. A.) 298 F. 911; Halbert v. U. S. (C. C. A.) 290 F. 765. Nor can error be assigned upon the failure of the government to introduce this affidavit in evidence. If the defendants desired that it be admitted in evidence, they had equal opportunity to offer it. This witness was called on behalf of the government, and not on behalf of the defendant. The order, made by the court in the presence of the jury, that the witness be held pending investigation, in no wise reflected upon the credibility of defendant's witnesses, or discredited the defense. Upon the question of the credibility of this witness, the jury was as fully informed as the court in reference to the conflicting statements he had made under oath. The court very clearly charged the jury that it was the sole judge of the credibility of witnesses and of the weight to be given to their testimony; that, if a witness was shown to have made statements at other times in conflict with his testimony given upon the trial, this would not warrant the jury in arbitrarily disregarding his testimony, but it would call upon the jury to examine that testimony more closely than the testimony of a witness not so impeached, or sought to be impeached; and that even in case of an impeached witness the jury might still believe all, part, or none of his testimony as to it seemed right and proper.

It clearly appeared from the evidence of the government that some unauthorized person had placed a false and fraudulent switching order on this car, and removed or obliterated the original. McKinney was connected by substantial evidence with the transportation of these stolen cigarettes from the car to the barn where they were stored. It was therefore entirely competent to show that a pad of these shipping orders had been lost or stolen, and that McKinney, at or about that time, had, by reason of his employment, an opportunity to obtain possession of the same. A similar question was presented in the case of Halbert et al. v. U. S., supra, in which case the conviction was affirmed. This evidence, in and of itself, would be entitled to little weight in determining the guilt or innocence of McKinney. If that were all the evidence offered to connect him with this crime, then there would be no substantial evidence sustaining his conviction; nevertheless it was pertinent, in view of McKinney's proven connection with the unlawful transaction. In this connection the court in a very excellent charge, to which no exceptions were taken, carefully instructed the jury as to inferences it might reasonably draw from any proven fact or circumstance in the case.

An exception was taken to the refusal of the court to charge that, "under the facts, the two government witnesses, Calagresi and Martani, were accomplices in the offense or part of the offense alleged in the indictment, and the jury will have to look to it only as accomplices, giving it that care and caution the law requires." There was no evidence tending to prove that these witnesses were accomplices of the defendants. On the contrary, if the jury believed the testimony of the defendants, then these witnesses were not accomplices, but were guilty of the offense charged, and the defendants were innocent. The court so instructed the jury. Even if there had been evidence tending to prove that these witnesses were accomplices in the commission of this crime, the failure to charge as requested would not be reversible error. Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442.

It is impracticable to discuss in this opinion all of the many assignments of error. There are a number of other assignments, all of which, in the opinion of this court, are of lesser merit than the ones we have discussed in detail. In reference to these, it is sufficient to say that no error intervened in the trial of this cause, to the prejudice of plaintiff in error.

For the reasons stated, the judgment is affirmed, and the cause is remanded for execution.