
    ROSTELLO et al. v. UNITED STATES.
    Circuit Court of Appeals, Seventh Circuit.
    December 24, 1929.
    No. 4283.
    Harold J. Bandy, of East St. Louis, Ill., for appellants.
    Ralph F. Lesemann, Asst. U. S. Atty., of East St. Louis, Ill.
    Before ALSCHULER and EVANS, Circuit Judges, and WOODWARD, District Judge.
   ALSCHULER, Circuit Judge.

Appellants, with Koch and Wencel, were indicted for conspiracy to violate the provisions of the National Prohibition Act (27 USCA) by the illegal manufacture, transportation, and possession of intoxicating liquor, and the illegal possession of stills and materials designed and intended to be used in the illegal manufacture of intoxicating liquor. They were tried together, and all but Koch, who pleaded guilty at the close of the government’s evidence, were convicted and sentenced, and of these all but Wencel appeal.

It is contended for the government that there is here no lawful bill of exceptions, in that it was not presented to the District Judge during the term at which the judgments were entered, nor any extension thereof made within the term. The judgments were entered September 26, 1929, one of the days of the September term of the court. The bill of exceptions bears date and was filed October 21. Included in his certificate there-' to is the following statement of the judge.:

“This bill of exceptions was first presented to me on October 21, 1929; the trial was had and judgment entered at the September term, A. D. 1929, which expired on October 19, 1929, by order of court. Court is now in the October, A. D. 1929, term. No bill of exceptions was presented or filed during the September term. No prayer for bill of exceptions was made at said September term, and no time fixed at said September term within which bill of exceptions might thereafter be presented, filed, or settled. Consequently I am of the opinion that no such bill may now be presented. - But at the earnest insistence of counsel I have hereunto attached my signature this 21st day of October, A. D. 1929.”

In a supplemental proceeding in this court, brought to require the date of presenting and filing the bill of exceptions to be shown nunc pro tune as of one of the days of the September term, there appears a copy of a written opinion or statement by the judge denying such nunc pro tunc filing. In this it is stated that after the judgment was entered the judge spent some of his time away from !his district, sitting in Chicago in the District Court and Circuit Court of Appeals; that on October 4 counsel for appellants saw him there and asked for a supersedeas, and that. the judge told counsel a supersedeas was denied, and that, if application therefor was made to the Circuit Court of Appeals, it might be stated that it had been denied, but that nothing was said about a bill of exceptions, or extension of time for filing the bill; that during most of the time of his absence from the District Court at Danville, Judge Wham, of that district, was sitting there, and that he had no knowledge whether or not the time for filing this bill of exceptions had been extended by Judge Wham, and that, if he had had any intimation that further time would be required, he would have extended it before adjourning the term; that when he adjourned the term .on October 19 he had no reason to believe that counsel for appellants had not seen to it that appellants’ rights had been protected by proper extension of time for filing the bill of exceptions; that he had correspondence with appellants’ counsel on the subject of a bill of exceptions, but tbat in writing to counsel, and saying he could be found on any forenoon of the following week at bis office in Danville, be bad no reason to believe tbat tbe time bad not been extended; tbat be was charged with so many other duties tbat be could not keep in mind tbe various steps of cases, and would not have known, and did not know, whether tbe time for presentation of a bill of exceptions bad or bad not been extended by himself or another judge.

To appellants’ petition in tbat matter is attached copy of tbe correspondence, which is as follows:

“October 17th, 1929.
“Honorable Walter C. Lindley, United States Judge, Danville, Illinois — Dear Judge: It will be necessary for me either to take or send tbe Rostello bill of exceptions to you in order to present it and ask to have it certified.
“Will you please let me know where you will be on Monday of next week, in order tbat this might be done at this time? Monday will be tbe most convenient day for me, but if you would prefer to see me on a different date I will change my plans to conform to your wishes.
“Yours very truly, H. J. Bandy.” “October 18th, 1929.
“Mr. Harold J. Bandy, Atty., Granite City, 111. — Dear Sir: I shall be in my office in tbe forenoons of next week, during tbe entire week, I think.
“Yery truly yours,
“Walter C. Lindley,
“U. S. District Judge.”

On tbe dates of both letters tbe September term had not yet ended. Tbe only thing to be done was to make a timely presentation to tbe judge of tbe bill of exceptions, which bad tbe approval of tbe United States attorney and was ready to be presented before this correspondence began, and which was tbe sole , subject-matter of counsel’s letter. If, in answering tbe letter on tbe 18th, tbe judge bad realized tbat there was no order extending tbe time for filing tbe bill of exceptions, be would doubtless either have entered such an order of his own motion, or would not on tbe 19th have adjourned tbe term sine die. Had be then deemed it necessary to order the term closed on tbe 19th, without extension of appellants’ time, on receipt of counsel’s letter be would doubtless have wired or phoned him that tbe presentation must be made before ending tbe term, and in all probability tbe bill of exceptions would have been there on tbe 18th. It would require no evidence or statement of tbe judge to indicate tbat be did not have this matter in mind when be adjourned tbe term.

But this is not a matter of intent. Tbe effect upon appellants would be precisely tbe same, whether by tbe adjournment of tbe term on tbe 19th it was or was not intended to prevent tbe lawful presentation of tbe bill of exceptions for tbe prosecution of these appeals. Appellants’ counsel was in position to have presented tbe bill of exceptions within tbe term, bad be suspected the term would be adjourned on tbe 19th. Tbe judge’s letter of the 18th naturally led counsel to believe tbat presentation on any forenoon of tbe following week would be in sufficient time. No doubt tbe judge himself assumed this was. so, and, bad be known and realized otherwise, surely a different course would have been pursued.

We are satisfied tbat tbe case falls fairly within tbe purview of In re Federal Life Ins. Co., 248 F. 908, in which we held a bill of exceptions to have bad timely presentation. There tbe bill was ready, and some of its features were discussed with and in tbe presence of tbe judge during tbe term, although not physically shown to tbe judge till after tbe term bad expired. Since the bill of exceptions was in fact presented to tbe judge, signed by him, and filed in tbe clerk’s office, it will not be necessary now to order this to be done, but we may and do consider tbe case as if tbe bill of exceptions bad been presented, approved and filed within tbe September term. So regarding it, we proceed to tbe merits.

Practically but a single proposition is urged, predicated upon a portion of tbe charge to tbe jury, wherein, discussing appellants’ side of tbe ease, tbe court said:

“You must ask yourself whether tbe circumstances corroborate them [tbe defendants] or whether they do not, and in tbat connection you have a right to take into consideration tbe fact tbat the defendant Koch, to whom they say they sold their goods, has pleaded guilty. He is in the courtroom, be is a competent witness, and tbe presumption of law is that if tbe defendants do not call him as a witness when be is available, if tbe opportunity offers itself, if it is peculiarly within their power to produce him or call him, be would not furnish testimony favorable to them, and you have a right to ask yourselves why, when this defendant is in tbe courtroom, tbe other defendants did not call him to tbe witness stand and examine him as a witness. You have a right to indulge tbe presumption or to draw the inference that I have mentioned in that respect.”

In overruling the objection to this charge the court further said:

“There is no presumption against a defendant who doesi not take the stand himself, but the jury has a right to indulge a presumption, when a witness is in the courtroom, is available and can be called, and is a codefendant and is not called to the witness stand, that his testimony, if called to the witness stand, would not corroborate the defendant.”

Defendant Koch had been separately represented by counsel, who, after the employment and before the trial, had entered into law partnership with the counsel who represented appellants. At the close of the government’s case Koch’s counsel, as well as the others, unsuccessfully moved for a directed verdict. Thereupon Koch’s plea of not guilty was withdrawn, and a plea of guilty substituted. From the court’s charge it appears that Koch then remained in the courtroom until the trial ended.

As to the principle which this charge mainly violates, the general rule is stated in 16 Cor. Jur. § 1023, as follows:

“Failure to Call Witnesses. The . neglect or failure of accused to call as witnesses those who could testify to their own knowledge as to material facts raises no presumption of law that, if called, they would have testified unfavorably to him and while the jury may consider his failure to produce or his endeav- or to produce such evidence as a circumstance in determining his guilt, and may draw inferences therefrom, this doctrine is to be applied cautiously, and only where it is manifest that the evidence is in the power of accused to produce and is not accessible to the prosecution, the rule that no unfavorable inference can be drawn from the failure to produce or to examine a witness who is equally accessible to both parties being applicable in criminal as well as in civil eases.”

10 R. C. L. 886, says it is the general rule “that a party is not to be prejudiced by his failure to call a witness who is equally available to the other side.” Controversies respecting the application of the rule have arisen more frequently where counsel, in argument, commented on failure of the opposite party to call certain witnesses, or produce books or papers. The propriety of such comment is dependent primarily on the facts of each case. In many, such as People v. Munday, 280 Ill. 32, 117 N. E. 286, 292, judgment of conviction was reversed because of comment of the state’s attorney on Munday’s failure to call as a witness a co-defendant not on trial, where objection to such comment was overruled by the court. The subject was there exhaustively treated, and the rule stated to be that:

“While there is some apparent conflict in the authorities, the general rule is that the omission or failure of a defendant in a criminal prosecution to call as witnesses those who could testify of their own knowledge to material facts raises no presumption of law that if called they would have testified unfavorably to him, but the jury may consider his failure to produce or to endeavor to produce such witnesses as a circumstance in determining his guilt, provided it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution.”

In State v. Fitzgerald, 68 Vt. 125, 34 A. 429, such comment was likewise held to require reversal of the judgment. In Graves v. United States, 150 U. S. 118, 14 S. Ct. 40, 37 L. Ed. 1021, the judgment was reversed because of such comments by counsel. In Brown v. State, 98 Miss. 786, 54 So. 305, 34 L. R. A. (N. S.) 811, such comment by the district attorney, on failure of the defense to produce the father and brother of the accused, was held to be reversible error.

It would seem that error through comment in argument would not compare in significance with a charge by the court to that effeet. The comment, after all, is an argument of counsel, upon the case as he sees it, and, if permitted, may be subject to comment by the other side, whereas the charge of the court is an authoritative direction to the jury. If such serious consequences attach to comment by counsel, how much more seriously consequential is a charge by the court.

In State v. Cousins, 58 Iowa, 250, 12 N. W. 281, the court charged the jury that the failure of the defendant to call his co-defendant as a witness is a circumstance that may be taken against him, and the jury should give it such weight as it is entitled to have. The Supreme Court said that the doctrine “is to be cautiously applied, and only in eases where it is manifest that proofs are in the power of the accused not accessible to the prosecution.”

“A degree of discredit is by the state east upon the accomplice by accusing him of a crime, and the defendant might well conclude that his testimony would have but little weight. The accused may in fact be innocent, and the alleged accomplice guilty. Under such circumstances the accused might be greatly prejudiced if he should call his co-defendant, who might shield himself at the expense of the other party. * * * In addition to all this the alleged accomplice was as accessible to the state as to the defendant.”

As to the standing of the accomplice with the jury, because of his alleged complicity, we have here the added fact that the accomplice had pleaded guilty, whereby suspicion and discredit because of his alleged complicity was confirmed by his plea. In Longacre v. Yonkers R. Co., 236 N. Y. 119, 140 N. E. 215, 217, 28 A. L. R. 1030, the trial court charged very similarly to that here complained of. On appeal, the court, reversing the judgment for this alone, said, “she was in court, as much subject to the call of the plaintiff as of the defendant.” Commenting on the general proposition, it was said in Grunberg v. United States (C. C. A.) 145 F. 81, 88:

“These rules never have been carried so far as to imply anything against a person charged with an offense by reason of his not calling witnesses, unless witnesses who were presumed to have special knowledge, and as to whom the alleged criminal may he presumed to have had special information or peculiar control, while the prosecuting authorities had neither.”

A similar charge was given in Egan v. United States, 52 App. D. C. 384, 287 F. 958, 970, and the court quoted the rule as follows:

“ ‘The general rule is that no such inference may be drawn by a jury because a party fails to call as a witness one who is in a legal sense a stranger to him and is equally available to the other side’ [citing cases]. These parties had no legal relation to defendant in this case, and were equally available to the government.”

Of course there are many instances where comments by counsel or charge by a court upon the unfavorable presumption to be drawn from failure to produce witnesses or papers were held to be proper. But it will generally he found that in most of them there is the element of the absent witness or papers being peculiarly within the control of the party whose failure to call or produce them is the subject-matter of the comment. In United States v. Carter, 217 U. S. 286, 30 S. Ct. 515, 54 L. Ed. 769, 19 Ann. Cas. 594, there was strong comment by the Supreme Court on Carter’s failure to secure the testimony of his father-in-law, dead at the time of that trial -and theretofore long residing abroad, outside of the court’s jurisdiction, but whose evidence it was concluded Carter might have secured had- he been so minded. Also in Mammoth Oil Co. v. United States, 275 U. S. 13, 48 S. Ct. 1, 72 L. Ed. 137, where the Supreme Court commented vigorously on the failure of Sinclair, the president and a large stockholder of the corporation, whose oil leases the government sought to void, to testify on matters considered by the court peculiarly within Sinclair’s knowledge. Both were chancery cases with no jury to determine the fact issues.

We wholly fail to see how the man Koch or his evidence was peculiarly within the control of any of these defendants. Several of them denied all acquaintance with him, and all denied any knowledge of or interest in his affairs. He had pleaded guilty, and was thenceforth either actually or potentially in the physical . custody of the government, awaiting such sentence as might be imposed, and might well be suspected of a disposition not to antagonize the prosecuting officers by testifying favorably to the other defendants. His continued presence at the trial after his plea of guilty, although indicating not the slightest impropriety, was nevertheless by grace of the court or of the prosecuting officers — surely through no procurement or influence of the remaining defendants. The mere statement of the situation must convince that if Koch was then peculiarly within the control of any one, it was the government and not appellants. In any event, he was at least as available to the government as to the other defendants. Either had the power to call him, and neither may invoke against the other any presumption for failing to do so.

It is contended for the government that, even if the charge is erroneous, the judgments should nevertheless stand, because the guilt of appellants is so clearly apparent. The charge is conspiracy, and each of the appellants testified denying his guilt. Each said he knew of no still, and had no knowledge that the sugar and yeast sold and delivered to Koch were to be used for making intoxicating liquors, or in any manner violating the law. Each denied any interest in the still or any product of it, or any part in the handling or disposition of the product. Whether the District Court or this eourt believes their testimony is quite beside the question. The alleged incriminating facts and circumstances were sharply contradicted. The charge complained of raised up against appellants a witness who, though silent, was probably more potent in securing the verdict against them than any item of evidence in the record.

The charge was erroneous and highly prejudicial, requiring the judgments to be, and they are, reversed, and the causes remanded.  