The opinion of the court was delivered by: MURPHY
Defendant, Mendel Katz, found guilty by verdict of a jury of violation of the Second War Powers Act of March 1942, 56 Stat. 177, 50 U.S.C.A.Appendix, § 633,
involving counterfeit sugar ration stamps and ration checks,
moves for a new trial assigning as error the alleged insufficiency of the evidence to support a conviction, and certain alleged irregularities in the conduct of the trial which he asserts amounted to prejudicial error.
We find no merit in defendant's reasons. The verdict of the jury must therefore be sustained
First as to the alleged insufficiency of the evidence: It is not necessary to recount the evidence at length. It is enough to say the jury could have found and, in support of their verdict, we may properly assume did find the following:
In Indictment 11580, the evidence showed that Katz gave to defendant Butler 1100 counterfeit sugar ration stamps and a forged ration check for 25,000 pounds of sugar together with money to obtain sugar for Katz. Butler gave the stamps, checks and money to defendant Macri who turned them over to a dealer named Walter Dalon. When the sugar was not forthcoming because the ration stamps and checks were spurious, Katz and Butler went to Macri, and later to Dalon, demanding the return of the stamps, checks and money or their equivalent in sugar.
The defendant did not testify in his own behalf. The evidence showed statements by Katz to Butler in Recupero's presence revealing his participation in the attempt to obtain sugar from Dalon. Recupero testified as to having seen the forged check in Katz' possession. Defendant admitted his participation in the transactions with which he was charged to Joseph Recupero, a brother of Willliam Recupero.
Just as the testimony was about to close, the government requested permission to reopen their side of the case and to present evidence which we received showing that during an evening recess of the trial the defendant went to the home of Joseph Recupero and endeavored to induce him to go to his brother, William Recupero, and offer him $ 2000 if he would testify falsely at the trial next morning in defendant's behalf. This testimony of Joseph Recupero was corroborated by that of his wife, Janet Recupero.
The testimony of William Recupero was corroborated by the testimony generally, the various documents, the several merchants, by defendant Macri, the witness Dalon, as well as by the conduct of the defendant in attempting to commit bribery and suborn perjury in relation to the instant trial.
If the jury believed William Recupero, and we may assume from their verdict that they did, he was Katz' agent in these transactions. Katz was therefore bound by Recupero's conduct in carrying out Katz' plans and designs. Richardson v. United States, 3 Cir., 1910, 181 F. 1; Morgan v. United States, 5 Cir., 1945, 149 F.2d 185, certiorari denied 326 U.S. 731, 66 S. Ct. 39, 90 L. Ed. 435; Garber v. United States, 6 Cir., 1944, 145 F.2d 966 at 969; Cr. Code, Sec. 332, 18 U.S.C.A. § 550.
We instructed the jury that they should determine whether or not William Recupero was an accomplice and that if they found him to be an accomplice they should scrutinize his testimony with great caution; that it was usually best to have the testimony of an accomplice corroborated by further testimony that may indicate its truthfulness.
On cross examination defense counsel developed that William Recupero had previously testified under oath at variance, in some particulars, with the testimony given in court. The witness attempted to justify this variance by stating that he had so testified previously because his life had been threatened by the defendant and other reasons, the details of which are outlined in the record. We do not repeat them in extenso at this point.
On further cross examination by defense counsel it appeared to the court that the colloquy was about to produce a charge against defense counsel himself. When we observed that defense counsel persisted in this line of questions we insisted upon an offer at side bar. The result of the side bar conference was to produce a most delicate situation involving one of defense counsel, the details of which are spelled out in the record. See the language of Goodrich J. in United States v. Thomas B. Ward, Jr. etc., 3 Cir., 168 F.2d 226, 'We will not perpetuate the memory of incidents that are better forgotten by reciting them in detail.' We ordered that this line of questioning be discontinued so as to prevent development of a collateral issue, to prevent a possible mistrial, and certainly to insist that defendant be tried only on the charge before us and to see that he received a fair and impartial trial represented by counsel, a right guaranteed him by the Constitution of the United States.
Counsel now complain of the manner in which the court called for the offer. The reason assigned quotes the sentence out of context. The record will show the court's only interest was to see that the defendant received a fair and impartial trial on the charge then before the jury
Even a convicted perjurer may testify competently. The jury must determine his credibility. The court must charge that the testimony of such a witness must be scrutinized with care.
Biggs J. in United States v. Margolis, 3 Cir., 1943, 138 F.2d 1002, 1004. See III Wharton Criminal Evidence, Section 1424, p. 2332; Commonwealth v. Mazzarella, 279 Pa. 465, 124 A. 163. The argument accepted during the 1600's and 1700's that one who came to the stand to testify that upon a former oath he had sworn falsely was as a self-confessed perjurer incapable of trust is no longer accepted as sound. 'The doctrine by the 1800's came to be entirely repudiated.' Section 527 Wigmore on Evidence, 3d Ed., citing L.C.J. Ellenborough in R. v. Teal9 East 307
The words of Mr. Justice Sutherland in United States v. Manton, 2 Cir., 1938, 107 F.2d 834 at 843 are pertinent. 'It is true that * * * in the main, the evidence tending to show Manton's partnership in the conspiracy came from the lips of convicted co-conspirators and other witnesses of bad or dubious character. Indeed, in a case like this, it is unlikely that it would be otherwise. But the credibility of these witnesses and the weight to be given their testimony, as we have already said, were questions for the jury and are matters beyond the scope of judicial review.'
The evidence as to the attempt to bribe a witness and to suborn perjury was clearly admissible. Evidence of the misconduct of a party in connection with the trial of his case is admissible as tending to show that the party guilty of the misconduct is unwilling to rely on the truth of his cause. McHugh v. McHugh, 186 Pa. 197, 40 A. 410, 41 L.R.A. 805, 65 Am.St.Rep. 849. This doctrine is applicable to criminal proceedings. Commonwealth v. Brown, 23 Pa.Super. 470-502; Commonwealth v. Marion, 232 Pa. 413 at 423, 81 A. 423, a case where the defendant authorized and directed another to make the solicitation for him. Commonwealth v. Spardute, 278 Pa. 37 at 43, 122 A. 161; McMeen v. Commonwealth, 114 Pa. 300, 306, 9 A. 876; Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155; Gung You v. Nagle, 9 Cir., 1929, 34 F.2d 848, 850. See Section 278 Wigmore, 3d Ed., p. 120 and cases cited. 'So, if you can show that a plaintiff has been suborning false testimony, and has endeavored to have recourse to perjury, it is strong evidence that ...