in this case were not charged with conspiracy, there was sufficient proof of concert of action between the two of them in the commission of the alleged offense to warrant the application of the rule that acts and declarations of one are admissible against the other, even though no conspiracy has been charged. See Lee Dip v. United States, 9 Cir., 92 F.2d 802.
The further point is advanced in defendant's argument that the Court permitted the Chief Deputy United States Marshal of this District to testify that his assistants attempted to serve the bench warrant issued after indictment on Strassburger and that he could not be located in the district. The fact that the Chief Deputy testified instead of one or more assistants who actually attempted to serve the co-defendant is of no consequence, in view of the direct admission by counsel for defendant Fox that co-defendant Strassburger, also his client, had been absent from the jurisdiction and in France since the return of the indictment.
The third assignment that the defendant was prejudiced by certain improper remarks of Government counsel is likewise without merit. An examination of the record indicates that the United States Attorney's arguments did not go beyond the bounds of propriety in arguing facts and inferences to be drawn therefrom. Viewed in the light of all the testimony before the jury, I feel that he kept within the bounds of proper legal argument.
The final argument advanced to the Court is that a new trial should be granted for the reason that in the argument on defendant's motion for judgment of acquittal at the close of the Government's case, the Court remarked to the United States Attorney that the testimony of the witness, Wilson, was the one thing that gave the Court some concern.
Defendant has seized upon that chance statement as a basis for arguing that except for Wilson's testimony the Court would have granted judgment of acquittal, an assumption entirely unwarranted. It was not the opinion of the Court that Wilson's testimony was the deciding factor in the determination of the motion then before it. That testimony when considered in conjunction with the other evidence in the case left little doubt in the Court's mind of the defendant's guilt.
Counsel for defendant now asks me to disregard in its entirety the testimony of Wilson which he characterizes as 'perjury' throughout his brief. He bases the characterization on the fact that Wilson testified that one Wilmer D. Cressman had not been Secretary of the Herald during a certain period whereas some of the Herald's books indicated that Cressman had been elected and acted as Secretary during that period. For that reason, the Court pointed out to defendant's counsel that Cressman's testimony might be of importance to the defense. Although it appeared that Cressman was available and in the district, counsel stated to the Court that he had decided against calling him for fear that he might prove hostile. After the verdict and pending motion for a new trial, he obtained from Cressman an affidavit, general in terms and not specifically refuting the important part of Wilson's testimony, that pertaining to Wilson's personal possession of the corporate minutes and the fact that the entries regarding the alleged resolution to sell stock to Fox in August 1941 was not in the minutes when Wilson left the Corporation on October 7, 1941, some six weeks later. Defendant now asks me to accept this affidavit in lieu of testimony which could have been produced at time of trial, and based on that affidavit to regard Wilson's entire testimony as perjured. Since defendant had every opportunity to obtain Cressman's testimony and deliberately chose not to do so in spite of warning, I do not feel that any further consideration should be given him in that regard. In effect, defendant seeks a second guess regarding trial tactics. That he is not entitled to under the circumstances.
The case was tried with all due regard to the rights of the defendant Fox. The charge of the Court specifically instructed the jury that Fox should not be penalized for Strassburger's alleged wrongdoing unless he was knowingly a party to it. The jury has found that he was and I see no reason to interfere with its finding.
For the reasons set forth above, the motions for a new trial and for judgment of acquittal are denied.
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