decided: June 14, 1949; As Amended June 17, 1949.
Before BIGGS, Chief Judge, and MARIS and O'CONNELL, Circuit Judges.
The appeal at bar grows out of the conviction of Ward, the appellant at this number, and Frank Peskin on an indictment charging them with violations of the Selective Training and Service Act of 1940, 50 U.S.C.A.War, Appendix, § 311, and § 626.1(b) of the Regulations made pursuant to the Act.*fn1 In United States v. Peskin, 3 Cir., 173 F.2d 97, we affirmed Peskin's conviction. The principal question raised by Ward, the appellant at bar, which we discuss at some length, grows out of the decision of the Supreme Court in Mogall v. United States, 333 U.S. 424, 68 S. Ct. 487, 92 L. Ed. 783, which was handed down several weeks after the jury in the instant case had found Ward guilty.
The second and fourth counts of the indictment were directed against Ward. Count 2 charged that Ward, intending to aid and abet Peskin in evading service in the armed forces of the United States, falsely represented in writing to Peskin's draft board that the latter was employed as a timekeepter-checker by the Marine Welding Company (Marine), of which Ward was an officer.*fn2 Count 4 charged that for several months thereafter Ward failed to notify Peskin's board of change in the latter's status which might have caused the board to reclassify Peskin.*fn3 The jury found Ward guilty on both counts.
Thereafter, in the Mogall case, the United States conceded, and the Supreme Court confirmed, that Section 626.1(b) of the regulations, as it was then framed, imposed no legal duty on an employer to report to his employee's draft board facts which might lead the board to change the classification of the employee. On the basis of the Mogall decision the court below granted a motion in arrest of judgment on count 4. The verdict of guilty on count 2 was permitted to stand, however, and the motion for a new trial made by Ward was denied.
Ward contends that testimony supporting count 4 concerning his failure to notify Peskin's draft board at any time subsequent to Peskin's deferment that he was not regularly employed by Marine and that Marine had ceased to do business was given such emphasis at the trial and was so inextricably woven into the evidence supporting count 2 that the jury must be presumed to have inferred from the testimony offered in support of count 4 that Ward was guilty on count 2.
We cannot accept this view. While we do not propose to analyze the evidence supporting the respective counts in detail in this opinion nonetheless we have examined the testimony very carefully and have closely scrutinized the charge of the trial court as well. We have set out in footnote 4 all the references to evidence or rulings which we deem important as possibly affecting Ward.*fn4
Ward's argument in particular runs as follows as we apprehend it. He was charged in count 2 with aiding and abetting Peskin in originally obtaining an illegal deferment Ward asserts that the evidence offered under count 4 proved that he had further aided and abetted Peskin in avoiding service in the armed forces of the United States. Therefore, says Ward, the evidence adduced under count 4 must be presumed to have "unduly influenced" the jury's mind so that he was found guilty on count 2. Consequently, he contends that he should be granted a new trial on count 2. The answer to this argument appears clearly from the indictment, from the evidence as a whole and from the rulings and charge of the trial court.
An examination of count 2 shows, see note 2, supra, that Ward was charged with aiding and abetting Peskin avoid service in the armed forces of the United States because he Ward, wrote a letter (Exhibit G-11) to Peskin's draft board stating that Peskin was employed by Marine as a "timekeeper-checker". Such was the extent of the aiding and abetting charged against Ward in count 2. That Ward sent the letter is clear beyond any doubt and he in fact admitted having sent it. There was ample evidence from which the jury could have found that Peskin had never been employed by Marine. Count 4 on the other hand did not charge Ward with aiding and abetting Peskin. It charged Ward with what was then thought to be a principal offense, namely failing to inform Peskin's draft board of Peskin's change of status as, supposedly, was required by Section 626.1(b) of the regulations.
An examination of the record as a whole demonstrates how clearly the demarcation between the offenses set up in counts 2 and 4 of the indictment was followed throughout the trial. Moreover, the charge of the court was exceedingly clear as to the gravamen of counts 2 and 4. The trial judge stated expressly to the jury, p. 433 of the transcript, "I direct you to consider each count separately and return a separate verdict on each count of the indictment." He described the offenses set out respectively in counts 2 and 4 of the indictment clearly and succinctly and analyzed the evidence applicable to each of the two counts. The charge was complete and fair.We cannot see how Ward sustained the slightest prejudice.
To strike down the conviction on count 2 because evidence was received during the course of the trial on count 4, under the circumstances of the instant case, would seem to us to require a like reversal in any case in which there was a multiple count indictment and evidence was received during the course of a trial on any count which either was not sent to the jury or was quashed for some reason. Indeed, in the instant case Ward might argue with equal force or lack of it that because Peskin was found guilty evidence showing Peskin's guilt was attributable to him, Ward. Peskin could have made a similar argument reversing the premises. It is obvious that such propositions are without merit.
The other points raised by Ward do not require discussion.
The judgment of conviction will be ...