NSF checks, and Counts 1 to 5, inclusive, of Indictment No. 13665, which pertained to NSF checks, and that portion of the Sixth Count of Indictment No. 13665 which pertained to NSF checks, and on Counts 2, 16 and 22 of Indictment No. 13662 which pertained to alleged fictitious deposits for the reason that the jurors could not eradicate from their minds the voluminous exhibits and testimony on the NSF checks and on matters alleged in Counts 2, 16 and 22 that were introduced by the government on the government's contention that there was a misapplication of funds by the defendants.
At the beginning of trial, consolidation of the three cases was agreed to by the defendants, and not only did they fail to oppose it, in response to an inquiry by the court, but they agreed that the indictments should be consolidated. A defendant may consent to the trial at the same time and before the same jury of different indictments charging him with separate offenses, and where he does so, by requiring the consolidation, he cannot be heard to complain of the action of the court. 53 Am.Jur. p. 68, § 64.
But even assuming that I were in error in invoking this principle of law, I meticuously and explicitly, both at the time of entering judgment of acquittal on the said counts and upon presentation of the final charge, instructed the jury to cast from their minds all evidence which related to the stricken counts. It is my considered judgment that the jurors demonstrated that degree of acumen and understanding requisite to effectively give meaning to these instructions.
Remarks of Government Counsel Prejudicial
The argument is further advanced that the argument of government counsel to the jury was unfair, unwarranted and prejudicial to the defendants. The defendants admittedly did not take exception to the closing address of government counsel to the jury or any portion thereof.
Nothing is better settled than that the defendant who deems himself prejudiced by the language of counsel should promptly and publicly object and point out the language deemed improper, and then take exception if the trial judge fails to condemn it. It is too late to predicate error upon the refusal of the trial judge to grant a new trial on account of a complaint made only after verdict and upon a motion for a new trial. Smith v. United States, 9 Cir., 231 F. 25, certiorari denied 242 U.S. 636, 37 S. Ct. 19, 61 L. Ed. 539; Heald v. United States, 10 Cir., 175 F.2d 878. Indeed, defendants' counsel, who are highly learned and skilled in the law, could not plead lack of familiarity with this basic rule of trial procedure.
Be this as it may, however, I can think of no trial where the court so frequently and emphatically instructed the jury on the weight to be given remarks by counsel, and I find no exceptional circumstances in the argument which would warrant my noting an objection for the first time on motion for new trial. Heald v. United States, supra.
There Was No Unanimity of Verdict
Defendants further contend that the verdict of the jury was not legal because the jurors were not unanimous in the verdict. It is argued that two weeks after the jury rendered its verdict, two jurors voluntarily contacted one of the defendants by telephone and informed said defendant that they were convinced of the innocence of the defendants when the jurors rendered their verdict as announced in Open Court, but that they had rendered the guilty verdict on the erroneous advice of fellow jurors who allegedly informed them that under the law the verdict of the majority governed the guilt or innocence of the defendants, and that the dissenting jurors were required under the law to make the verdict of the majority unanimous.
Defense counsel admits and agrees that the Court, is its final instructions, clearly emphasized the requirement that all jurors must unanimously agree before a verdict may be rendered, and that any juror was free to observe his own conviction as his own conscience dictated. Defense counsel, themselves, do not understand how jurors of reasonable intelligence would not have understood this portion of the charge.
The general rule is that an affidavit of a juror will not be received for the purpose of impeaching his own verdict. Loney v. United States, 10 Cir., 151 F.2d 1.
The rule is based upon controlling considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room. McDonald v. Pless, 238 U.S. 264, 267, 268, 35 S. Ct. 783, 59 L. Ed. 1300.
I am compelled to unequivocally disapprove the practice of interviewing a juror after a trial as to his state of mind during the trial. United States ex rel. Daverse v. Hohn, 3 Cir., 198 F.2d 934.
I am well cognizant of the sense of responsibility which a member of this court is required to exercise when the liberty of accused persons is at stake. In the trial of this lengthy and involved proceeding, I have kept the rights and protective cloak with which the law surrounds the accused, uppermost in mind and have acted with scrupulous and calculated caution in safeguarding defendants' rights.
I must conclude that any error which might have crept into the record did not affect substantial rights, and as such can be disregarded. Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A.
An appropriate Order is entered.
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