'discloses his criminal connections' he must 'make a full disclosure'; but just what those 'connections' must be, was left at large.' 132 F.2d 838.
Speaking of Arndstein v. McCarthy, 254 U.S. 71, 41 S. Ct. 26, 65 L. Ed. 138, and McCarthy v. Arndstein, 262 U.S. 355, 43 S. Ct. 562, 67 L. Ed. 1023, Judge Hand said at page 839, of 132 F.2d, supra, 'The essence of the decision is that 'an ordinary witness' does not waive his privilege 'where the previous disclosure * * * is not an active admission of guilt or incriminating facts'. (McCarthy v. Arndstein), 262 U.S. (355), at page 359, 43 S. Ct. (562), at page 563, 67 L. Ed. 1023.'
See Judge Franks' dissenting opinion, 132 F.2d at pages 840, 843, discussing Foster v. People, 18 Mich. 266, 'There Judge Campbell said that the test of whether there has been a 'waiver' is whether the witness 'has or has not furnished sufficient evidence to criminate himself,' and that the waiver is effective and the privilege gone when and only when the witness 'has once made a decisive disclosure."
'Obviously a witness may not be compelled to do more than show that the answer is likely to be dangerous to him, else he will be forced to disclose those very facts which the privilege protects.' Learned Hand J. in United States v. Weisman, 2 Cir., 1940, 111 F.2d 260, 262.
'The application of the rule thus comes to depend chiefly on the relations of the particular facts inquired about and the extent to which the particular witness has gone in his prior answers.' VIII Wigmore on Evidence, 3d Ed., Section 2276. See discussion of difference in situation between an ordinary witness and the accused on trial. Id.
The government showed that McCarthy was under indictment (R. 343) for certain conduct in connection with his work as paymaster for A & G; defense counsel that he had been indicted for stealing money (R. 209-211). At R. 223 McLaughlin testimony that McCarthy had been using the same numbers at the same time as McLaughlin to collect additional money. The evidence showed that he plead not guilty and had been advised by his counsel as to his constitutional rights against self-incrimination. The questions which he refused to answer are shown in the Record at p. 355, 358, 364, 366, 376 and 377. In each instance the question called for an answer which in our judgment would tend to incriminate him. Counsel now argue they were unable to develop that McCarthy would be unlikely to tell Toner to stop carrying numbers when he was doing so himself. That was an argument for the jury. The witness was entitled to the protection granted him by the Fifth Amendment to the United States Constitution.
As to the sixth reason for a new trial, after we had completed our charge and covered without objection or exception the points submitted by defense counsel, a request was made just as the case was about to go to the jury that we charge the jury 'that the fact that McLaughlin pled guilty is not to be considered by the jury as any evidence whatsoever in determining whether or not Mr. Toner is guilty.' The court's charge must be viewed as a whole. Boyd v. United States, 1926, 271 U.S. 104, at page 108, 46 S. Ct. 442, 70 L. Ed. 857; Wallenstein v. United States, 3 Cir., 1928, 25 F.2d 708, at page 712. 'A court is free to use language of its own choice in charging a jury. And it is not error to refuse a requested charge where the general charge is reasonable complete, fairly accurate, and sufficiently covers all of the material issues in the case.' United States v. Berg, 3 Cir., 1944, 144 F.2d 173, 177; United States v. Quick, 3 Cir., 1942, 128 F.2d 832; United States v. Dewinsky, D.C.N.J. 1941, 41 F.Supp. 149.
The request must be proper. It is not the duty of the trial judge to recase or modify an erroneous or misleading requested instruction. George v. United States, 1942, 77 U.S.App.D.C. 197, 125 F.2d 559, 563; Chastain v. United States, 5 Cir., 1943, 138 F.2d 413. The request was untimely. Lewis v. United States, 8 Cir., 1946, 153 F.2d 724, 726. It amounted to nothing more than an objection. Affronti v. United States, 8 Cir., 1944, 145 F.2d 3, 9.
We stated to the jury that 'the fact that Mr. McLaughlin pled guilty is not evidence against Toner * * * .' We could not state that it could not be considered by the jury as any evidence whatsoever in determining whether Toner was guilty. It was a fact in the record which could be considered by the jury in determining whether or not McLaughlin was an accomplice, and if so that his testimony should be considered with caution; it was a fact in connection with the intimation of defense counsel that he had not been arrested for perjury and might be attempting by his testimony to curry the favor of the government; it could be considered by the jury in passing upon the motive, interest and credibility of the witness. Were we at that time to point out those possibilities in such concentrated form we would be in our judgment unduly magnifying the importance of that fact in the minds of the jury.
We had advised the jury they were the sole judges of the facts; that merely because there was a charge made against defendant should not in itself lead to any conclusion as to defendant's guilt; that McLaughlin had plead guilty and that his 'part in the indictment so far as this trial is concerned has been disposed of'; that another judge would dispose of that case; that Toner had plead not guilty; that to have a conspiracy there must be two or more persons involved;
and to convict the jury must find defendant was one of the conspirators; that McLaughlin as a witness was a co-defendant, and an accomplice if there was a conspiracy, otherwise not. If McLaughlin was an accomplice the jury could convict on his evidence alone 'that is as to what he testified to'. All the circumstances of the case must be kept in mind by the jury. The jury must determine if he was an accomplice and whether there was a conspiracy; consider McLaughlin as a witness, his interest as a defendant who had plead guilty, his credibility. At record pages 806, 807, we explained that Toner must be proven to have joined in the plans to be a co-conspirator; that McLaughlin's admissions after the conspiracy had come to an end were not evidence against Toner; the only evidence to consider was what he said in court.
Having covered all those matters we added to the jury that as jurors they were to use their common sense; that in determining guilt or innocence they had nothing to say about McLaughlin, and they would not have to return a verdict on counts as to McLaughlin.
When the additional request for charge or objection was made, we therefore added to our statement that the jury could take into consideration that one of two co-conspirators had plead guilty and make such use of it as they saw fit; that we would not define any further what they could or could not do with that kind of evidence. We concluded by stating that it was the jury's recollection that controls.
To the foregoing defense counsel made no objections and took no proper exceptions. We feel in retrospect that we should have used the word alleged when we spoke of co-conspirators; we had however previously defined what was necessary to make one a co-conspirator. Certainly the charge was on the whole fair, complete and impartial. 'But in any event, there was no reversible error for want of a proper objection. Such a slip in a comparatively small matter is preeminently the type of thing which should have been called to the attention of the judge at once, so that he might have clarified or corrected his statement before the jury retired.' United States v. Marino, 2 Cir., 1944, 141 F.2d 771, at page 773, certiorari denied 323 U.S. 719, 65 S. Ct. 48, 89 L. Ed. 578. See Boyd v. United States, supra, 271 U.S. 104 at page 108, 46 S. Ct. 442; United States v. Alfano, 3 Cir., 1945, 152 F.2d 395. ' * * * Defendants take exceptions to parts of the court's charge, particularly to expression of opinion as to certain portions of the evidence. Such comments on the evidence are permissible, provided the jury understands that they are based on the court's own recollection of the testimony, and, further, that such recollection and the court's opinion of the evidence are not binding on the jury. United States v. Dilliard, 2 Cir., 101 F.2d 829, 836, certiorari denied (306 U.S. 635) 59 S. Ct. 484, 83 L. Ed. 1036.' United States v. Bob et al., 2 Cir., 106 F.2d 37, at page 40, 125 A.L.R. 502, certiorari denied 308 U.S. 589, 60 S. Ct. 115, 84 L. Ed. 493. As to harmless error see Kotteakos et al. v. United States, 328 U.S. 750, 66 S. Ct. 1239, 1249, 90 L. Ed. 1557.
The evidence as to McLaughlin's plea was for the jury. 'A plea of guilty * * * it is itself a conviction. Like a verdict of a jury it is conclusive * * * the court has nothing to do but give judgment and sentence.' Kercheval v. United States, 1927, 275 U.S. 220, 223, 47 S. Ct. 582, 583, 71 L. Ed. 1009. ' * * * Admissions made in the course of judicial proceedings are substitutes for, and dispense with, the actual proof of facts.' 20 Am.Juris.Evidence, Section 557.
Gordon v. United States, 6 Cir., 1947, 164 F.2d 855, 860, 'While it constitutes a confession of his own guilt * * * made in open court and in the presence of the appellant. It constitutes direct and competent evidence that appellant performed the acts charged in the indictment. Valdez v. United States, 244 U.S. 432, 37 S. Ct. 725, 61 L. Ed. 1242; Nibbelink v. United States, 6 Cir., 73 F.2d 677.' See shields v. United States, 1927, 3 Cir., 17 F.2d 66, 67; in the charge there affirmed the lower court had stated, 'They are self-confessed violators of the law, and the rule is that testimony of that kind must be carefully scrutinized. Upon that testimony alone you can find a verdict * * * ' See Goldberg v. United States, 5 Cir., 297 F. 98, indictment for conspiracy court permitted to go out with jury though it contained pleas of other defendants. See Gandy v. State, 21 Ala.App. 384, 108, So. 656, cited in 22 C.J.S.,Criminal Law, § 793, page 1344, and Commonwealth v. Dennery, 259 Pa. 223 at page 231, 102 A. 874; O'Rear v. United States, 5 Cir., 1919, 261 F. 257.
Cf. 22 C.J.S.,Criminal Law, § 784, page 1333, and Id. § 769, page 1313, as to the use of the plea of one co-defendant not being permitted as against the other, citing cases, LeRoy v. Government of Canal Zone, 5 Cir., 1936, 81 F.2d 914. Also cf. United States v. Alfano, 3 Cir., 1945, 152 F.2d 395; Gambino v. United States, 3 Cir., 1939, 108 F.2d 140. There the defendant who plead was not in court and the court in error permitted his confession to be used to show his guilt of the conspiracy. See IV Wigmore, Section 1076. In O'Shaughnessy v. United States, 5 Cir., 1927, 17 F.2d 225, 227, the court was held to have exceeded the bounds of discretion in referring to the co-defendant's plea in his charge. Cf. Kosak v. United States, 3 Cir., 1931, 46 F.2d 906; United States v. Dewinsky, supra, D.C.N.J. 1941, 41 F.Supp. 149.
Distinction must be made between extra judicial and judicial confessions. 'The vital feature of a judicial admission is universally conceded to be its conclusiveness upon the party making it, i.e., the prohibition of any further dispute of the fact by him, and of any use of evidence to disprove or contradict it.' IX Wigmore Section 2590.
From the foregoing quaere as to whether or not the evidence of the plea in open court could not be considered as evidence directly tending to prove the guilt of Toner, at all events it could be considered as evidence as above indicated. We see no merit in defendant's sixth reason.
As to defendant's additional reasons filed without compliance with Rule 33, we discuss them briefly in passing. All of them are without merit. See Wigmore Section 2059, p. 325 and at Section 2056, p. 321, as to the history of the right, wisely preserved in the federal courts of the trial judges to assist the jury in clarifying the evidence, provided the final decision is left in their hands.
Complaint is made because the court defined the law; told the jury to use their common sense and every day experience in reviewing the evidence; and that the court asked a witness a question. Further that the court explained the evidence to make it more intelligible to the jury. Objection is made to receipt of testimony as to the responsibility of the Devlin Company in assigning ships. On this matter the defendant testified. The testimony was clear that WSA assigned all ships.
Counsel assert error in receiving in evidence statements of the witness McLaughlin notwithstanding that defense counsel requested that those statements be sent out with the jury. The statements were marked as government exhibits, one of them after defendant's counsel requested it. Defense counsel had developed that certain items were in the statements and that they contradicted each other; intimated that they were not the free expression of the witness on the stand; that their contents differed from what the witness had said in court.
One statement used by the government to refresh the recollection of a witness had first been submitted to defense counsel for examination; the other had not been used in court at all but was demanded by defense counsel from the government in the presence of the jury.
Finally, complaint is made as to receipt of the evidence of the auditor of the Maritime Commission and of the witness Curry, assistant superintendent of the Moore-McCormack Company. Those witnesses testified as to the meaning of 'Stevedore' and 'longshoremen' and as to what work and duties were those of a stevedore and of a longshoreman as contrasted with the duties of shipping, clerking and railroad companies.
In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95, 51 S. Ct. 383, 75 L. Ed. 857. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. Quercia v. United States, 289 U.S. 466 at page 469, 53 S. Ct. 698, 77 L. Ed. 1321. See discussion in the Quercia case, supra, from Sir Matthew Hale; United States v. Turley, 2 Cir., 1943, 135 F.2d 867; Glasser v. United States, supra, 315 U.S.at page 82, 62 S. Ct. 457. As to the right of the trial judge to ask questions, see Quercia v. United States, supra; United States v. Gross, 7 Cir., 1939, 103 F.2d 11; United States v. Breen, 2 Cir., 1938, 96 F.2d 782; Garber v. United States, 6 Cir., 1944, 145 F.2d 966, 971 et seq.
Defense counsel (R. 229) commenced questioning the witness McLaughlin about statements made to the FBI; he brought out that the witness' first written statement differed from the second; that the witness' statement before the Grand Jury was later altered in his story to the FBI after consultation of the witness with defense counsel. Defense counsel before the jury then asked for the production of the witness' statement which had not as yet been produced or used in any manner in court, stating he wanted it to impeach the witness. He asked that it be marked as a government exhibit. Upon receipt of it he went into its contents in questioning the witness. Later he requested that it be sent out with the jury. Complaint is made that the court suggested that if the court ordered the government to produce the statement the possibility of the jury seeing the statement must also be considered.
The matter was one for the discretion of the trial judge. The defendant's counsel had no absolute right that the statement be produced from the government's files. Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322. It is only when the witness uses the paper in court to refresh his memory while on the stand that the right exists to compel production. Lennon v. United States, 8 Cir., 1927, 20 F.2d 490. See Morris v. United States, 5 Cir., 1906, 149 F. 123, 9 Ann.Cas. 558. There is considerable authority for the proposition that when a party at trial calls for a document from his opponent, receives it and examines it, it may later be put in evidence though otherwise incompetent. See Leonard v. Taylor, 315 Mass. 580, 53 N.E.2d 705, 151 A.L.R. 1002; cf. Wigmore, Section 762, Section 2125, p. 557, 560, citing United States v. Mitchell, Fed. Cas. No. 15, 791, 2 Wash.C.C. 478; Jordan v. Wilkins, Fed. Cas. No. 7, 526, 2 Wash.C.C. 482; Edison Electric Light Co. v. United States Electric Light Co., 2 Cir., 45 F. 55, 59; Withers v. Gillespy, 7 Serg. & R. Pa., 10, 14.
Also involved was the doctrine of completeness since part of the statement was introduced by defense counsel. See Wigmore, Section 2113; 22 C.J.S.,Criminal Law, § 769, page 1316; Affronti v. United States, supra, 145 F.2d 3, at page 7.
A defendant in a criminal case cannot complain of error which he himself has invited. Shields v. United States, 3 Cir., 1942, 17 F.2d 66. As to impeaching witnesses, see United States v. Maggio, 3 Cir., 1942, 126 F.2d 155 and note in United States v. Michener, supra, 152 F.2d at page 885.
At all events this was a matter for the discretion of the court. The jury was instructed that the statements were not substantive evidence but were to be used only in connection with the determination of the credibility of the witness.
As to the testimony concerning the prior conduct admitted to show knowledge, see Gordon v. United States, supra; Heike v. United States, 227 U.S. 131, 145, 33 S. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128; Orloff v. United States, 6 Cir., 1946, 153 F.2d 292; Glasser v. United States, supra, 315 U.S. 60, at page 81, 62 S. Ct. 457; United States v. Uram, 2 Cir., 1945, 148 F.2d 187; Blodgett v. United States, 8 Cir., 1947, 161 F.2d 47.
As to the witnesses Shea and Curry, see Norton v. Warner Co., 321 U.S. 565, 570, 64 S. Ct. 747, 88 L. Ed. 430; Delaware & Chesapeake Steam Towboat Co. v. Starrs, 69 Pa. 36, at page 41; Corbin v. Haws Refractories Co., 277 Pa. 126, 131, 120 A. 811; Henry Pennsylvania Trial Evidence, 3d Ed., Section 332, 335, 336; Eustis Packing Co. v. Martin, 5 Cir., 1941, 122 F.2d 648; Chicago Great Western Ry. Co. v. Beecher, 8 Cir., 1945, 150 F.2d 394, 400, certiorari denied 326 U.S. 781, 66 S. Ct. 339, 90 L. Ed. 473; Phillips Petroleum Co. v. Payne Oil Corp., 10 Cir., 1944, 146 F.2d 546, 547. 'A witness possessed of special training, experience, or observation in respect to the matter under investigation may testify as to his opinion when it will tend to aid the jury in reaching a correct conclusion, and where a written contract contains words or expressions of a technical nature employed in a particular business or industry, persons familiar with such business or industry may testify as to whether the words or expressions used have acquired a well-recognized meaning among those engaged in such business or industry, and if so, what it is, for the purpose of aiding the court.' See also Moran v. Prather, 23 Wall. 492, 499, 90 U.S. 492, 499, 23 L. Ed. 121; Daniel v. Pappas, 8 Cir., 1926, 16 F.2d 880; American Agricultural Chemical Co. v. Moore, D.C., 17 F.2d 196, 198.
As to liberality in the receipt of evidence and qualifications of witnesses, see Rule 43, Federal Rules of Civil Procedure, 28 U.S.C.A.following Section 723c. There is no situation here like that presented in United States v. Michener, 3 Cir., 1945, 152 F.2d 880.
One must guard against the magnification of instances which were of little importance in their setting. Cf. Glasser v. United States, supra 315 U.S.at page 83, 62 S. Ct. 457. See United States v. Breen, supra 98 F.2d at page 784.
For the foregoing reasons we conclude there was no error in the conduct of the trial; that the defendant was properly convicted. On this date orders will be made denying defendant's motions for judgment of acquittal and for a new trial.