against him without records of interstate shipment.
It is also apparent from the record that Hohensee was being less than candid when he would state in one breath that he did not diagnose or prescribe for disease, and then in the very next proceed to diagnose a serious disease and recommend one of his 'diets' for its treatment. The testimony of Mr. Kimlel and Miss Stroessner is full of instances of this type of evasive conduct, and defendants' evidence, in particular the testimony of Mrs. Anderson, corroborates that of the Government.
These facts in themselves form a sufficient basis from which it could be inferred that the defendant Hohensee knew that he was violating the law and that he was taking whatever steps he could to forestall prosecution. Argument based upon the evidence and inferences from the evidence is always proper. Eastman v. United States, 3 Cir., 1946, 153 F.2d 80, certiorari denied 328 U.S. 852, 66 S. Ct. 1342, 90 L. Ed. 1625.
However, even if there was no evidence in the record to support the statement with respect to Hohensee's purpose to violate the law, the Court on two occasions, first in its general charge, and again when defendants first objected to Mr. Teller's remarks, instructed the jury to disregard all comments of counsel and to decide the case on the evidence. Czarnecki v. United States, 3 Cir., 1938, 95 F.2d 32; Chadwick v. United States, 5 Cir., 1951, 117 F.2d 902, certiorari denied 313 U.S. 585, 61 S. Ct. 1109, 85 L. Ed. 1541. It is only rarely that the court should interrupt argument of counsel in the absence of objection, and, as pointed out above, the record provides ample basis for the arguments.
Defendant's next argument is that the jury failed to consider all of the evidence, and was unduly influenced by allegedly improper argument of Government counsel. They also request the Court to grant permission to take testimony of jurors for the purpose of determining what effect these allegedly erroneous statements may have had upon them.
Mattox v. United States, 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917, is cited by defendants for the proposition that jurors may be interrogated for the purpose of determining when an improper influence has been exerted on them. Actually the case holds that the jury may be questioned as to whether they saw a newspaper account published while they were deliberating, but the case specifically denies counsel the right to question jurors as to the effect which the newspaper account had on their minds.
The rule in the Mattox case was recently and forcefully stated by Chief Judge Gourley of the Western District of Pennsylvania in United States v. Nystrom, D.C.1953, 116 F.Supp. 771, 777:
'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.'
The remaining reasons assigned by defendants in support of their motions are entirely without merit and require no discussion.
It is the conclusion of this Court that the record shows no error in the trial that was prejudicial to the defendants. The verdicts were not contrary to the law. Defendants received a fair trial and the verdicts were supported by substantial evidence. Defendants' motion in arrest of judgment will be denied. Defendants have failed to advance any valid reason why a new trial should be granted and defendants' motion for a new trial will be denied.
An appropriate order will be filed herewith.