MACDONALD v. UNITED STATES, 264 F. 733

JOHNSON, Circuit Judge. The plaintiff in error was jointly indicted with John J. Harrington and Oscar N. Johnson for conspiring to defraud the United States by the use of counterfeit stamping devices in the factory of Thompson Bros., a corporation engaged in the manufacture of shoes at Brockton in the district of Massachusetts. Macdonald was the general manager and director of the company, Harrington was the foreman of its sole leather room, and Johnson his assistant.

The company had entered into a contract to manufacture army shoes for the United States, and government inspectors had been sent to its factory to examine the leather and other materials to be used in their manufacture. These inspectors were provided with stamping devices with which they stamped the leather that they deemed suitable for use.

The defendants were charged in the indictment with having conspired to defraud the United States by causing duplicates of the stamping devices in use by these inspectors to be made and used in stamping pieces of leather which had not been examined and inspected, or which had been rejected by the inspectors, so that these should be used in the manufacture of shoes under the contract, and that, in furtherance of this unlawful conspiracy, they had procured duplicate stamps of three government inspectors and caused them to be used to stamp leather which went into the manufacture of shoes under this contract, and which had been rejected or never had been inspected by the government inspectors.

Harrington pleaded guilty and was a government witness. The jury by its verdict acquitted Johnson, but found Macdonald guilty, and he has brought this writ of error, assigning as error the ruling of the court in the admission and exclusion of testimony and the giving and refusal to give instructions. It was not in dispute that counterfeit stamps were used in the factory of Thompson Bros, upon outer soles and inner soles used in the manufacture of shoes under the government contract.

The' use of such stamps was discovered by government inspectors by reason of the impressions made by them being somewhat larger than those made by the true ones.

Harrington testified thjat Macdonald, finding that there was a large accumulation of inner soles and outer soles that had been rejected by the inspectors, directed him to have Johnson procure duplicates of their stamps; that Johnson did so, and had the bills made to himself as purchaser, but that they were paid by the company; and that these duplicate stamps were used to stamp inner soles and outer soles which, when so stamped, were used in the manufacture of shoes under the government contract.

Early in \pril, 1918, one of the government inspectors discovered that a duplicate stamp had been used, and he informed Macdonald. Officers of the Quartermaster’s Depot at Boston sent for Macdonald, and he was there told about the discovery of the use of the counterfeit stamps, and stated that he knew nothing about it. He was told, however, by the officers, that he must produce the parties who were guilty of the use of these stamps within 48 hours or the government contract with Thompson Bros, would be canceled.

Harrington testified that Macdonald told him about the discovery of the use of the counterfeit stamps ánd what had occurred in Boston, and stated that, if the government wanted to, they could ruin Thompson Bros, by canceling the contract with them, which would leave the company with $600,000 or $700,000 worth of material on its hands, and that Macdonald asked him if he would go into the Quartermaster’s Depot and tell the officers there that he was the guilty person, and that he was the only one who had anything to .do with the entire matter; that the witness at first refused, and said to Macdonald, “Let’s all go in and tell what was done;” and Macdonald said, “No, we can’t do that; we can’t go to work and put the Thompson Bros, firm in that position;” and Macdonald said to him, “You do it; I can fix it up; Edwards has had this matter transferred from Washington to Boston, and I can fix it up "there;” that after some further urging by Mac-donald he agreed to do as Macdonald wished, upon the latter’s assurance that he would take care of him, and see that no harm came to him; that, in accordance with this agreement, he went in to the Quartermaster’s Depot and told the officers in charge there that he was the guilty person.

There was testimony that these officers required that Harrington should leave the employ of Thompson Bros., and that he should not work in any factory which had a contract with the government. After leaving the factory of Thompson Bros., Harrington received from the company $655, of which $55 was paid as salary for the week prior to his leaving, and $600 was paid by Mr. Atwood, an employé of Thompson Bros., by direction of Macdonald, to Mrs. Harrington in three payments of $200 each.

On April 23, 1918, Harrington was arrested upon an indictment obtained against him, and testimony was offered by the government showing various conversations between Macdonald and Harrington, in which Macdonald urged him “to stick” to his story that he had told the officers of the government, and that Thompson Bros, would protect him. Mrs.

Harrington testified to conversations,,between Macdonald and her husband which tended to show that Macdonald was implicated in the fraud that had been practiced, and was very much concerned lest Harrington should divulge his connection with it, and that in one conversation Macdonald said, “I suppose they will get me into this before they get through; but my back is to the wall.” Johnson was called by the government as a witness and testified that some time in December, 1917, he left an order for a stamp with the Donnelly Machine Company, having on it the name “Hallinan,” which was the name of one of the government inspectors at the factory; and he "further testified that, at Harrington’s request, he had two stamps, bearing the numbers “88” and “103,” made at the Donnelly Machine Company; that he did not know the Hallinan stamp was used at all on government shoes, and .that he never had any talk with Macdonald about any fraudulent stamp; that Harrington told him that the Hallinan 'stamp was to be used on “rookie” shoes for the civilian trade, as it was the custom in shoe factories to mark such shoes with a stamp to indicate to the public that they had been inspected by some one; and that he never saw the Hallinan stamp used on army shoes.

The defendant Macdonald testified in his own behalf that his only financial interest in Thompson Bros, was one share of stock, which he held to qualify him to act as a director of the company; that he had no knowledge that any duplicate stamps were procured or used, and that his attention was first called to the fact that such were being used in the factory on April 6, 1918, when a Mr. Collette, his assistant, spoke to him about it, and in consequence of this information he sent for another inspector; that after talking with the latter he went at once to Boston to see Capt. Edwards of the Quartermaster’s Depot.

While Capt. Edwards did not tell him what the trouble was, he got the impression that something was wrong; that he told Capt. Edwards, if anything was wrong, to telephone him at once, and he would go to Boston at any time. He then returned to Brockton and personally conducted a search through the factory for outer soles with duplicate stamps upon them, which could be recognized because slightly larger than the inspector’s stamps, and that the shoes that were found with the impression of the duplicate stamp upon them were taken care of, so that there would be no possibility of their getting out of the factory.

Upon getting to his home that night he telephoned to Harrington, who came to see him, and he asked Harrington if he had any duplicate stamps in the factory, and Harrington replied that he did not. A few days later he received word from Capt. Edwards of the Quartermaster’s Depot, in consequence of which he went to the Quartermaster’s Depot, where he was informed that an affidavit signed by the factory inspectors had been filed, and also a shoe taken from the factory bearing the counterfeit stamp.

After he had been told that he would be held responsible for what had happened and given 48 hours to find out and produce the person who used the duplicate stamp, he returned, to Brockton and sent for Harrington to come to his home.

He testified he sent for him, because he was the head of the sole leather department in the factory; that when he arrived he admitted that he had bought duplicate stamps from the Donnelly Machine Company, and gave as his reason for doing so that he had viscolized some soles to expedite the work, and, finding that the inspectors would not pass the soles after they had been viscolized, “he had gotten the stamps in order to stamp them up and get them by.” Macdonald also testified that the three payments of 8200 each were made as a loan to Mrs. Harrington by Mr.

Atwood at his request; that payments to Harrington were discontinued, because of discoveries made at the factory showing that inferior leather had been purchased by Harrington. Macdonald denied that he had ever made any arrangement with Harrington by which the latter was to confess that he was the party alone responsible for the use of the counterfeit stamps, or that he had ever had conversations with Harrington which were detailed by the latter and which Mrs. Harrington said she heard.

Upon cross-examination, and against the objection of his counsel, the government was allowed to interrogate him in regard to his relations with one Collette, a government inspector at Thompson Bros.’ factory, under a previous contract; and he testified that Collette was placed on the pay roll of Thompson Bros, under the name of “H. Johnson” by his direction, and received $10 a week while he was a government inspector.

This testimony was admitted by the court for the purpose of showing “guilty knowledge of the fact that the government was being defrauded by the use of a counterfeit stamp,” and in his charge to the jury the court gave the following instruction in regard to it: “The Collette evidence has this bearing: It is not at all on trial here whether-Macdonald had a corrupt understanding with Collette or not in reference to Collette’s inspection of the shoes under a preceding contract, but the question in this case before you is whether Macdonald was an innocent or a knowing party to a plot that was being made to defraud the United States, if you find that, shortly before the incidents here under consideration, Macdonald was a knowing party to a corrupt understanding or corrupt transaction in reference to. the inspection of shoes being made in the same factory for the United States under a different contract, but generally speaking the same kind of work, you may consider that fact as throwing light upon whether he was innocent or guilty in his knowledge of this transaction.” The admission of this testimony and this instruction are assigned as error.

Subsequent to the admission of this testimony Collette was called by the defendant and testified that he had tendered his resignation as a government inspector, and that his work in connection with the inspection of leather for the government, which entered into shoes manufactured under the contract with Thompson Bros., had been fully discharged, although he was still a government inspector when Macdonald made the arrangement with him by which he should receive some compensation from Thompson Bros, for his assistance in establishing at the factory the manufacture of ladies’ shoes, which had not been previously manufactured there.

The use of counterfeit stamps upon leather which had been rejected by the government inspectors was proven by the testimony of Harrington. Macdonald had denied any knowledge that any counterfeit stamps had been procured or used in the factory. It was necessary, therefore, in order to connect him with the conspiracy, «to show that his testimony was false and that he did have such knowledge.

We are unable to see how evidence that Macdonald had a corrupt understanding with Collette would tend to show that Macdonald had any knowledge, whether guilty or innocent, that counterfeit stamps were procured and used under a contract with which Collette had no connection. It might tend to show that Macdonald had an evil disposition and that his character was such that he would be likely to enter into a conspiracy such as that charged in the indictment; but it could not be admitted for this purpose under the well-known rule of evidence, which was considered and applied in this circuit in Fish v.

United States, 215 Fed. 544, 132 C. C. A. 56, h. R. A. 1915A, 809, that upon the trial for tine offense evidence of another distinct and unrelated offense committed by the defendant is not admissible, unless it is offered for one of the purposes which constitute exceptions to this general rule. The court below stated as the ground for his ruling and instruction that the testimony tended to show guilty knowledge; but it seems to us that he failed to recognize that, before testimony can be admitted under this exception, guilty knowledge or intent must be in issue.

Guilty knowledge was not in issue under the facts established by the testimony in this case.

The issue to be determined by the jury was not whether the defendant’s knowledge was guilty or innocent, but whether lie had any knowledge of the procurement of the counterfeit stamps and their use; and if they should find that he did have, then it necessarily followed that such knowledge must be guilty knowledge, as there was no claim that the counterfeit stamps were procured or used by inadvertence, accident, or mistake, or for the purpose of deceiving the public, which, from the evidence, would seem to have been considered innocent by shoe manufacturers. 'As neither guilty knowledge nor intent were in issue, the instruction of the court that the jury might consider the transaction with Collette “as throwing light upon whether he was innocent or guilty in his knowledge of this transaction” was, in effect, an instruction that they might consider it in determining whether Macdonald was innocent or guilty of being concerned in the conspiracy with which he was charged, and it seems to us that the jury must have so understood it.

In Costelo v. Crowell, 139 Mass. 588, 2 N. E. 698, the court in its opinion makes the following cogent statement of the reasons why such evidence should not be received for the purpose of proving a defendant guilty of the crime of which he is charged, and we think it applies with peculiar aptness to the evidence which was admitted in this case: “In cases wliero a person is accused of a crime, it is not competent to show, as evidence of the corpus delicti, that he has committed similar offenses, or that he is of bad character, or that he has the capacity and the means of committing the crime.

The argument in favor of admitting such evidence is ¡plausible.

It might aid the jury if they could know the character of the defendant — whether he is a man morally and physically able and likely to commit the offense; but the law excludes such evidence upon grounds of public policy, to prevont the multiplication of issues in a case, and to protect a party from the injustice of being called upon, without notice, to explain the acts of his life not shown to be connected with the offense with which he is chargee!. “If the fact that a defendant has committed a similar crime is not admissible, it is difficult to see how less pregnant evidence that ho has the disposition or the capacity and means to commit it can be competent.” We have carefully examined the cases cited upon the government’s brief as áuthority for the claim that, because the defendant himself testified and also introduced evidence in regard to the same facts which were disclosed by incompetent testimony, such testimony became competent; but none of them go to the extent of holding that, if a defendant introduces evidence to explain such incompetent testimony, not caring to stake 1he result in the appellate court upon the exception which he has saved, he has thereby waived his exception.

In Motes v. United States, 178 U. S. 458, 20 Sup. Ct. 993, 44 L. Ed. 1150, which is cited as the strongest'authority for this position, evidence had been erroneously admitted which tended to establish the guilt of Motes and three other defendants of the crime of murder, for which they were being tried.

Motes subsequently testified in his own behalf that he committed the murder, and the court held that— “It would be trifling with the administration of the criminal law to award him a new trial because of a particular err»r committed by the trial court, when in effect he has stated under oath that he was guilty of the charge preferred against, him.” Macdonald did not, in the testimony given by him or in that which he introduced, admit that he was guilty of the charge preferred against him, but sought only to explain away the appearance of a corrupt understanding with Collette.

In doing this he did not admit that he was a party to the conspiracy with which he was charged, nor did he waive his exception to the admission of the testimony in regard to his connection with Collette. The exception urged was. taken to the instruction of the court to the jury as to the use which they might make of the evidence, as well as to its admission, and, if this instruction were wrong, it could not be healed, because the defendant had introduced testimony in explanation of the testimony which had been drawn out from' him on cross-examination.

As we think there was error in the admission of this testimony and in the instruction complained of, and that the defendant was prejudiced thereby, it will for this reason alone be necessary to reverse the judgment of the court below and grant a new trial, and we do not think it necessary for us to consider the other errors which are assigned. The judgment of the District Court is reversed, the verdict set aside, and the case is remanded to that court for further proceedings not inconsistent with this opinion. -<®s5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes