defendant performed the transportation in violation of statute.
In the light of the present question, the judicial observation in the Garvey case that invoices alone would not prove particular cartons to have contained merchandise of the value of $ 5,000 seems to have no great bearing.
The objection generally raised as to business records is that of admissibility. Yet it is well known that the practice in this connection has been gradually liberalized, even in the absence of statute. The reason given for that change furnishes one answer to defendant's contention. For instance, McCormick says that the archaic impediments have been minimized by virtue of the 'special reliability' of such records, McCormick on Evidence 599 (1954). The Federal Business Records Act, for that matter, is simply designed 'to facilitate admission of records which experience has shown to be quite trustworthy,' Korte v. New York, N.H. & H.R. Co., 2 Cir., 1951, 191 F.2d 86, 90, certiorari denied 342 U.S. 868, 72 S. Ct. 108, 96 L. Ed. 652; see Palmer v. Hoffman, 1942, 318 U.S. 109, 113, 63 S. Ct. 477, 87 L. Ed. 645.
We hesitate therefore to accept the inference that business records, once they have been admitted into evidence, are a sort of 'second class evidence.' For that matter, the proposition that one kind of evidence is necessarily better than any other is at least questionable. Quoting Wigmore on Evidence, Chief Justice Maxey pointed out in In re Young's Estate, 1943, 347 Pa. 457 at page 464, 32 A.2d 901, at page 904, 154 A.L.R. 643 that:
'* * * 'There are no rules in our system of evidence prescribing for the jury the precise effect of any general or special class of evidence. * * * it is out of the question to make a general assertion ascribing greater weight to one class or to the other * * *."
Defendant furthermore presses the point that the shipping documents in 12 counts designate Taylors as the carrier, saying:
'The Government cannot, without producing additional direct evidence, ask the Court or jury to accept as true one part of a business record and as untrue another part of that same record. The equivocal circumstance that payment for the shipments in question was made to Conquest does not negate or overcome the Government's own proof that Taylors was the carrier and not Conquest.'
A principle which was established in Elizabethan days, embedded in Bacon's Maxims, supplies the answer: falsa demonstratio non nocet -- false description does not vitiate, 9 Wigmore on Evidence § 2476 (3d. ed. 1940); see also, for application to a very different factual situation, the leading case of Patch v. White, 1885, 117 U.S. 210, 216, 6 S. Ct. 617, 29 L. Ed. 860.
At the present juncture, it would seem that the jury simply chose to regard the word Taylors as misdescription. It followed an ancient prerogative to 'strike the bad, and save the good.' Were it not possible so to do, the mere presence of any name on a business record, however fortuitously the name there appeared, would be controlling. In a case like the present one, for example, had someone named Taylor furnished imprinted blanks, bearing his name for advertising purposes, to the shipper, that circumstance (by defendant's line of argument) would incontrovertibly make Taylor the carrier.
Defendant next cites the 'strict circumstantial evidence rule prevailing in the Third Circuit.' That matter has been dealt with by the Court of Appeals for the Third Circuit in a case ten years more recent than any cited by defendant, i.e., United States v. Ginn, 3 Cir., 1955, 222 F.2d 289, 292. There the defendant had been convicted of, among other things, failing to register and report annually, being an alien. The court remarked:
'In this case we do not need to reanalyze (our former) opinions to see whether there is anything inconsistent between them and the recent comment by the Supreme Court upon circumstantial evidence in tax cases. Holland v. United States, 1954, 348 U.S. 121 (139-140), 75 S. Ct. 127 (99 8l.Ed. 150).'
The Court of Appeals then went on to find that a conviction could not be supported by a mere affidavit 'that the custodian looked and did not find the cards' required to have been filed.
As noted by the Court of Appeals, the lower court in that case had devoted thoughtful analysis to the circumstantial evidence decisions of this circuit, United States v. Ginn, D.C.E.D.Pa.1954, 124 F.Supp. 658. The three principal ones are first: United States v. Russo, 3 Cir., 1941, 123 F.2d 420 wherein a conviction was set aside because the defendant could not, on the evidence, have known that the stolen goods had been placed in his truck. Then in United States v. Tatcher, 3 Cir., 1942, 131 F.2d 1002, the conviction of a bankrupt for concealing assets was set aside for total lack of evidence that he had concealed assets. The third was United States v. Laffman, 3 Cir., 1945, 152 F.2d 393 wherein a conviction of false certification of occupation to a Selective Service Board was set aside for complete failure of proof to show that defendant had anything to do with the notice sent to the Board.
These cases are the ones most frequently cited for the proposition that:
In order to justify a conviction of crime on circumstantial evidence it is necessary that the directly proven circumstances be such as to exclude every reasonable hypothesis but that of guilt.
Taking that rule even in its most literal form, one of its own elements seems to dispose of defendant's contentions, i.e., that:
'* * * the directly proven circumstances (must) be such as to exclude every reasonable hypothesis but that of guilt.' (Emphasis supplied.)
The documents produced by the shipper, together with the testimony of the witness from the Bureau of Motor Carriers, may be taken as showing that shipments were made in interstate commerce, that defendant was unlicensed, and that defendant cashed 13 checks for 13 shipments in amounts corresponding to anonymous invoices which matched the shipments in every case.
To overcome the obvious inference arising from acceptances of the payments under the circumstances, defendant suggests that
'* * * payments might have been collected by Conquest as agent for Taylors, or assigned to Conquest in a set off between carriers, intrastate state revenue as against interstate revenue, or perhaps some other basis as there is nothing in the record to indicate the relationship between Conquest and Taylors.'
For all the record shows, however, there may have been no such person or entity as Taylors. It would be no less reasonable to speculate that the shipper was simply using up obsolete, pretyped shipping memoranda, or that the name Taylors had been inserted on the blanks for some reason known only to the shipper, and purely for the shipper's own convenience.
On the record, then, the Court is of opinion that the uncontradicted documentary evidence, coupled with the direct testimony of the investigator -- giving the Government the benefit of inferences to which it is entitled after verdict -- excludes all reasonable hypotheses other than guilt.
2. Proof that defendant was a contract carrier and
3. Contention that the Proof showed him a Common Carrier.
These second and third points lend themselves to joint treatment. As to the latter, there is only one phase of the evidence pointing toward the common carrier status. Such was the testimony of Foley that defendant had advertised in the Philadelphia telephone directory for truck hauls to New York. On the authority of United States v. Contract Steel Carriers, Inc., 1956, 350 U.S. 409, 411, 76 S. Ct. 461, that advertisement is deemed insufficient to show him to have been a common carrier. In the cited case, the United States Supreme Court held that an advertisement offering transportation service without mentioning whether it was contract or common carriage, plus active solicitation of new business, did not justify a finding of holding out to the general public.
On the other hand, the direct testimony of Mr. Foley was that defendant's interstate operation was exclusively for Westmoreland Metal Mfg. Company. The same witness categorized defendant as a contract carrier, since the Bureau's investigation had shown that Conquest carried for no shipper other than Westmoreland.
Other elements ordinarily necessary to show common carrier status were entirely missing such as: a showing of the filing of tariffs with the appropriate regulatory body; the offering of services to all shippers at a stated uniform price; and issuance of regular freight bills as required by law (49 C.F.R. 172). See also Slagle, 2 M.C.C. 127, 134; Whitney Contract Carrier Application, 32 M.C.C. 431.
As to the alleged insufficiency of proof of the contract carrier status, the defendant cites 49 U.S.C.A. § 303(a)(15), being § 203 of the Interstate Commerce Act:
'(15) The term 'contract carrier by motor vehicle' means any person which, under individual contracts or agreements, engages in the transportation (other than transportation referred to in paragraph (14) of this section (common carriers) and the exception therein (express companies)) by motor vehicle of passengers or property in interstate or foreign commerce for compensation.'
Defendant further cites and sets out Code of Federal Regulations, Title 49, Transportation 173.2 'Contracts or Agreements to be in Writing.'
It is unnecessary, for two reasons, that the latter section be elaborated here. In the first place, the bills of lading could reasonably be considered written contracts, and sufficient to meet the requirement that they be 'bilateral and impose specific obligations upon both carrier and shipper * * *'
In any event, if the requirements of the cited sections were not met, such would simply have been a violation of the regulation rather than a fact determinative of status. In Whitney Contract Carrier Application, 32 M.C.C. 431, for instance, Standard Uniform Bills of Lading were used in connection with shipments made via the carrier. Nevertheless, it was decided:
'We are impressed by the fact that applicant, since 1934, has served the same small group of shippers, who number less than 10 * * * On occasions, small services have been rendered for other shippers not under contract, but such occasions do not appear to have been frequent enough to be designated as a practice. In the Craig case we recognized that the specialization indicative of a contract-carrier status might consist of a rigid restriction of even ordinary services to a particular shipper, or at most to a very limited number of shippers. In the instant case * * * the fact that most of the (shippers) * * * have been served continuously since 1934 impels us to the conclusion that applicant may be properly classified as a contract carrier.'
The fact of exclusive service to Westmoreland, so far as the testimony shows, points clearly to contract carrier status, and this question is resolved against the contention of defendant.
For the above reasons, the defendant's motion for judgment of acquittal is denied.