not end the case if there is evidence that despite it, the powers ordinarily associated with the employer concept actually belonged to were exercised by some one person. Certainly, the corporate entity has been disregarded in many other situations; e.g., cf. United States v. Milwaukee Refrigerator Transit Co., C.C. Wis., 142 F. 247; United States v. United Shoe Machinery Co., D.C., 234 F. 127; United States v. Barwin Realty Co., D.C., 25 F.2d 1003. In McClayton v. W. B. Cassell Co., D.C., 66 F.Supp. 165, at pages 173, 174, in which a veteran unsuccessfully attempted to get his former job back under the re-employment provisions of the Selective Service Act, the Court pointed out:
' * * * It is argued * * * that McClayton's situation should be regarded as that of an employe by Cassell. But this is not a tenable view of the facts. Prior to 1928 when the corporation was formed, that was the real situation. But the very object of forming the corporation was to change the relationship theretofore existing, which was that of employer and employe, to one which in economic reality was a partnership between the two men with respect to the profits of the business. And certainly neither partner is an employe of the other. * * *
'The mere literal scope of the Act should yield in any case where its wholehearted construction requires the precise meaning of individual words to give way to the evident purposes of the statute.'
These words might well have been written with the instant case in mind. I feel that the Act can encompass as an 'employer' a person who was the actual moving force in a business and who supervised selective service matters. To construe the Act otherwise would be an unwarranted insulation of conduct that could disrupt its operation.
With this in mind, I feel that there is enough evidence from the government's case alone to justify a jury finding that Aleli actually was Lembo's employer in this war work. A few references to the Notes of Testimony will suffice. Thus, Stout's letter to the draft board said that 'our business has been built around and by Aleli.' Stout and Aleli shared the same desk; Aleli had charge of production and the office in the war work; including Selective Service matters and had nothing to do with the garage, which Stout was still operating. In fact, about fifty or sixty hours a week, Aleli was actually on the premises, and had complete charge of the business. Stout knew nothing about the shell business, and was in the garage business, when he and Aleli worked out an arrangement calling, inter alia, for Aleli to get $ 10,000 a year, if profits permitted, and 37 1/2% of the net profit. This is enough, I feel, to warrant submission to the jury.
It should be noted, in addition, that Aleli testified that Lembo came to see him for a job and that he and Mr. Stout hired Lembo. Further, when asked if he were a 'mere employee' Aleli replied 'Well, hardly.'
This, of course, is a one-sided presentation of the evidence, disregarding contradictions and inconsistencies, but it indicates to me that there was sufficient evidence on the issue to allow a jury to resolve any conflict and conclude that Aleli was Lembo's employer. The jury was charged, in addition, that to convict, ' * * * there must be wrongful intent. There must be knowledge of the existence of an obligation and a wrongful intent to evade it.' There can be no question then, in view of the verdict, of imputing a duty to Aleli of which he was ignorant.
Both defendants have urged various grounds for a new trial, as well. These deal with evidentiary rulings, failure to sever, comments in the course of the trial, and errors in the charge. The particular objection that an improper comment was made upon defendant Aleli's possible failure to testify would be serious, of course, if true. What the Court did say, at N.T., page 181, is this:
'That is not the charge, about Mr. Stout. The Government charges Mr. Aleli. If the Government meets that burden it is up to Mr. Aleli to give some response.' (Emphasis supplied.)
I feel that this statement was not incorrect, and, a fortiori, not improper. Similarly, I feel that generally the rulings on evidence and severance were within the province of a trial court's discretion, and that they, along with the comments and charge, did not result in prejudicial error. This view may well be questioned, of course, but in any event, the points raised do not, by their novelty or complexity, require the extended treatment given those above.
Accordingly, therefore, I shall deny the motions of both defendants for a judgment of acquittal and for a new trial.
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