The opinion of the court was delivered by: DUSEN
This case is before the court on defendant's Motion For New Trial after a guilty verdict by the jury on these three Counts:
B. Count III charged him with possessing a counterfeit $ 20.00 note with intent to defraud, in violation of 18 U.S.C.A. § 472; and
C. Count IV charged him with transferring to Rivers a counterfeited $ 20.00 note with intent that it be passed as true and genuine, in violation of 18 U.S.C.A. § 473.
The testimony disclosed that Rivers had attempted to pass a counterfeit $ 20.00 note in an Allentown drugstore in September 1961. Rivers testified that he had met the defendant through defendant's younger brother, who went to school with Rivers in Canada where both Rivers and defendant lived (N.T. 19). On a Saturday afternoon, about ten days before he passed the above-mentioned $ 20.00 note (N.T. 37-38), the defendant had given Rivers two $ 20.00 notes to make purchases of items costing less than $ 5.00 with the understanding that Rivers would give Ross the change (N.T. 20-24). Subsequently, Rivers came to the Allentown Fair, since Ross mentioned that there was a Fair there (N.T. 25), and met Ross there (N.T. 27). Ross gave him the counterfeit bill and told him to 'pass the bill' in the drugstore (N.T. 27). Rivers testified that Ross knew the bill was counterfeit (N.T. 27) and that he had a roll of $ 20.00 notes which was four inches in diameter with him (N.T. 34). Rivers testified that he had previously given inconsistent statements concerning his transactions with defendant because he had been threatened by him on many occasions (N.T. 50-53). Another Canadian named Chaine, who was employed at the Allentown Fair, testified that he saw defendant at the Fair with a roll of bills (N.T. 57 ff.). One night Chaine asked the defendant where he got the money and the defendant replied that it was none of his business (N.T. 58). Later that evening, he saw defendant hit Rivers in the washroom of a Bethlehem bar and when he told defendant to stop, the defendant said: 'Look, it is counterfeit money and nothing to fool around with. That is my business so you mind your own.' (N.T. 59). Chaine also testified that defendant told Rivers 'if he did not keep his mouth shut, he was liable to get his throat cut' (N.T. 59).
Defendant testified that he never gave Rivers any $ 20.00 bill in Allentown.
A. Contention that verdict was against the evidence and against the weight of the evidence (Pars. 1 & 2 of Motion For New Trial)
The above summary of portions of the testimony, including Chaine's testimony that defendant admitted to him at the approximate time of giving Rivers the $ 20.00 note to pass in the drugstore that 'it is counterfeit money and nothing to fool around with' (N.T. 59), furnishes ample support for the verdict of the jury. In view of Chaine's testimony, the jury did not have to rely on the testimony of Rivers to prove defendant's knowledge 'as to the counterfeit nature of the bill in question' (see page 2 of defendant's brief, being Document No. 9). A review of the notes of testimony establishes that the verdict is neither contrary to the evidence nor to the weight of the evidence. See Fowler v. United States, 242 F.2d 860, 861-862 (5th Cir. 1957).
The trial judge charged the jury that Rivers' testimony had to be scrutinized with caution and care before it should be accepted by them, both because he had been found a delinquent on a charge of burglary in Canada
and because he was an accomplice or co-conspirator in this same indictment under which defendant was charged (N.T. 138-9). This part of the charge concluded with this sentence (N.T. 139):
'You should not convict a defendant upon the unsupported testimony of an accomplice, unless you believe the unsupported testimony beyond all reasonable doubt.'
As stated in United States v. Migliorino, 238 F.2d 7 (3rd Cir. 1956), at page 10:
'It is no longer open to doubt that a jury may convict on the testimony of an accomplice alone. (citing cases).'
B. Contention that statement of David M. Joliat dated December 6, 1961 (attached to Document No. 9),