December 10, 1934
UNITED STATES, AND NINE OTHER CASES
On Amended Petition for Rehearing in No. 5209.
In proof of Morris Weinroth's connection with the conspiracy charged by the indictment, the government offered and, over objections, the court admitted testimony of several bank accounts standing in the name of E. Weinroth and showing deposits of checks drawn to that name by persons in some instances actually engaged in the conspiracy. In the petition for rehearing it is urged that there was no evidence that E. Weinroth, the payee and depositor of the checks, was Morris Weinroth, the defendant. True, the indictment described Morris Weinroth by an alias thus: "Morris Weinroth, alias E. Weinroth, trading as E. Weinroth." Under this description, or inferential allegation, no evidence was introduced either on the matter of the bank accounts or on any other matter that we can find (even with the government's aid) to prove that the two names were borne by the same man and none to connect the bank transactions with the defendant. The learned trial judge ruled that the description of the defendant by an alias in the indictment sufficiently connected him with the bank accounts in the name of the alias and, without more, admitted testimony of the bank accounts as those of the defendant. We are constrained to hold that the admission of testimony as to checks and deposits in the name of E. Weinroth, without testimony connecting Morris Weinroth, the defendant, with them, and the submission of the case with the testimony in that state were errors.
That the errors were prejudicial, there can be no doubt. To draw an indictment for submission to the grand jury and later to a petit jury by adding an alias to the name of the accused when the draftsman is without evidence to connect one with the other tends unduly to influence the grand jury and to incite the petit jury to prejudge the case. It is not only an unfair but an inexcusable practice, one which, when coming to the attention of the trial judge, he should, for the protection of the prisoner then on trial, be prompt to correct by an admonition to the jury and never aid by substituting his own rulings for evidence essential to connect the two names with the transaction in question.
For these reasons alone we amend our previous judgment on review and reverse the entire judgment of sentence rendered by the District Court against Morris Weinroth. Obviously, this reversal does not go to the roots of the case. It is based not on a finding that there was a want of evidence to sustain the conviction but on errors in rulings by the trial court in respect to unproved incriminating transactions. Therefore, on authority of Steinman v. United States (C.C.A) 185 F. 47, 50-53, and Kosak v. United States (C.C.A.) 54 F.2d 72, a venire de novo is awarded.
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