was also testimony by an employee of Levitt that he had asked the defendant Levitt concerning registration and had been told none was necessary. Furthermore, the defendants did not controvert the allegation or evidence of nonregistration.
The defendants question the admissibility of the authenticated certificates. The enactment under which they were admitted, 28 U.S.C.A. § 661, authorizes admission of duly authenticated copies of records or other documents of executive departments of the United States. Obviously, a copy of a registration statement could not be adduced if there had been no registration. Since the nonexistence of any registration statement was material, and the significance and efficacy of a certificate to that effect was deemed to be supported by the aim and import of the statute, the defendants' objections were overruled. I am satisfied that this was not error.
The defendants argue that the jury should have been charged that it was not unlawful to sell an unregistered security unless it was known by the defendants: (1) that the security should have been registered; (2) that it was not registered; and (3) that sale of unregistered securities was forbidden. It was ruled at the trial that it was sufficient to establish that the defendants wilfully and intentionally sold or delivered unregistered securities by use of the mails. I did not then and do not now conceive an element of the crime charged in counts 15 to 21, inclusive,
to be actual knowledge that a security was being sold in violation of the law.
Particular stress was laid in the arguments and briefs upon the charge to the jury relative to reasonable doubt. Specifically, the objection was to that portion of the charge which reads: "The term reasonable doubt means a doubt for which a good reason can be given in the light of all the evidence." The statement concludes: "It means a doubt which is substantial and not merely shadowy. It does not mean a doubt which is merely capricious or speculative. Neither does it mean a doubt born of reluctance on the part of a juror to perform an unpleasant duty or a doubt arising out of sympathy for a defendant, or out of anything other than a candid consideration of all of the evidence presented."
After the Court had given its instructions to the jury and ruled on the points for charge, a short recess was taken to give counsel an opportunity to take exceptions to the charge and to present additional requests. The District Attorney then handed to the Court the charge of Mr. Justice Van Devanter given to the jury at the trial held in New York City in the case of United States v. Graham, McKay, et al., 2 Cir., 102 F.2d 436, certiorari denied, 307 U.S. 643, 59 S. Ct. 1041, 83 L. Ed. 1524. The District Attorney then specifically requested that the Court define reasonable doubt as defined by Mr. Justice Van Devanter. The quoted statement on reasonable doubt cited in the preceding paragraph was taken from the charge of Mr. Justice Van Devanter. Defendants now contend this instruction on reasonable doubt was contrary to Pennsylvania Law.
The instruction taken in connection with the entire charge did not prejudice the defendants. The charge is replete with references to reasonable doubt. At the outset, reasonable doubt had been described as follows: "Reasonable doubt does not mean just any possible doubt you might have, but it means such reasonable doubt as a careful, prudent and reasonable man ought to entertain in the circumstances proven. That is, it means reasonable moral certainty that all reasonable doubt of the defendant's guilt is excluded by the evidence. This rule requires greater certainty than might be necessary in a civil case. If there are reasonable doubts in your mind about the guilt of any defendant of any charge in the indictment, he is entitled to the benefit of such reasonable doubt, and to acquittal on that charge." The language quoted in this paragraph is similar to the language used by Judge Underwood in his charge in the Kopald-Quinn case which was affirmed in (Kopald-Quinn & Co. v. United States), 101 F.2d 628 in an opinion in which the Circuit Court of Appeals of the Fifth Circuit specially commented on the fairness of the charge, page 630. Taking the charge as a whole, and considering all the references to reasonable doubt, I do not think the instructions misled the jury or wronged the defendants. Murphy v. United States, 3 Cir., 33 F.2d 896.
I have considered, but find it unnecessary to discuss the remainder of the reasons assigned for new trial. Those deemed of particular wright and materiality have been dealt with herein.
For the reasons set forth, I conclude that the motions for new trial must be denied.