SPRINKLE et al. v. UNITED STATES, 150 F. 56

WADDILL, District Judge. This case was decided by this court at its November term, 1905 (141 Fed. 811, 73 C. C. A. 285), and is now under consideration upon a petition for rehearing granted at the instance of T. M. Angle and William Young, two of the defendants, the defendant Sprinkle having- acquiesced in the judgment of the court. The case is briefly this: B. F. Sprinkle and the petitioners Angle and Young, together with H. C. Sprinkle and J. T.

Sprinkle, were indicted for violations of the internal revenue laws; the indictment containing 10 counts, the first charging the persons named with carrying on the business of rectifying with intent to defraud the United States of the tax on the spirits so rectified; the third, fifth, seventh, and eighth cotints with engaging in and carrying on the business of rectifiers of distilled spirits in the names, respectively, of the Oak Grove Liquor Company, the Milton Liquor Company, the Reidsville Liquor Company, and of William Young, with intent to defraud the United States of the tax on the spirits so rectified by them.

The second, fourth, and sixth counts charged that said five defendants, respectively, in the name of the three companies aforesaid, knowingly made false entries in certain books required by law to be kept in the rectifying business. The ninth count charged the five defendants with unlawfully and willfully removing and aiding and abetting in the removal of a cask of distilled spirits on which the tax had not been paid as required by law to a place other than the distillery warehouse, and the tenth count with unlawfully concealing said cask of spirits on which the tax had not been paid. The defendants B. F.

Sprinkle, T. M. Angle, and William Young, in the absence of the defendants H. C. and J. T. Sprinkle, who had nor been apprehended, were jointly tried and convicted on the first nine counts of the indictment, on which judgment was entered, and from which a writ of error was sued out, resulting in the affirmation of the decision of the lower court, from which this rehearing is asked by the two petitioners named.

Many reasons are urged in support of the rehearing, and the same have been elaborately argued orally and in writing, and the conclusion .reached is that the judgment heretofore entered should in all respects be adhered to, except as to the ruling of the court upon the twenty-second bill of exception taken upon the trial relating to the admission in evidence of a certain paper purporting to have been written by the petitioner William Young on the loth day of April, 1902, addressed to Fleischman & Co., wholesale liquor dealers, Cincinnati, Ohio.

The subject of this exception is also embodied in the defendant Young’s request for instruction No. 90, and forms the ground of one of his assignments of error, and arose as follows: While Charles Haefeli,, chief clerk for Fleischman & Co., was on the stand as a witness in behalf of the government, deposing as to certain transactions between his firm and the Reidsville Liquor Company, of Reidsville, N.

C., he was asked by counsel for the prosecution to say if he had “any letters or anything that opened correspondence with Fleischman & Co.,” to which the witness replied “Yes,” and produced the letter dated April 15, 1902, which is as follows: “Reidsville Liquor Co., Wholesale Liquor Dealers and Rectifiers. “Wm. Young, “B. IP. Sprinkle, Proprietor. “Reidsville, N. C., April 15, 1902. “Mess. Fleiscbman & Co., Cincinnati, O. — Dear Sir: Please quote me your lowest prices on 50 proof wliite wheat whiskey f. o. b. Cincinnati, in five bbl. lots containing 50 or more wine gals, to the bbl.

I want it to blend low proof corn whiskey with it. If you will figure it down to the right price, I will handle five or ten bbls. per week; let me hear from you at your earliest date. “Yours truly, Wm. Young.” The said letter was typewritten, the date being stamped with a stencil or rubber stamp, and written upon stationery purporting to be that of the Reidsville Liquor Company, on which the name of B. F. Sprinkle originally in print as proprietor was stamped out, and across the name of said Sprinkle, proprietor, and across words “Liquor Dealer and Rectifier,” the name of Wm.

Young was stamped with a stencil of rubber stamp, and at the close of the letter the signature “Wm. Young” was likewise stamped with a rubber stamp or stencil. The answer of Fleischman & Co. to this letter was addressed to the Reidsville Liquor Company, which was the beginning of the correspondence between Fleischman & Co. and the Reidsville Liquor Company, and subsequently correspondence was had between said firm and said company, J. T.

Sprinkle appearing as the proprietor of the Reidsville Liquor Company, and as a result of which sundry sales of liquor were made by Fleischman & Co. to the Reidsville Liquor Company, and on some of the liquors were used the fraudulent stamps shown by the government to have been issued.

The lower court admitted this evidence against the objection of the defendants, stating at the time “that the object of the government in offering the testimony, as stated by the district attorney, was to show by it that the criminal offenses charged in the indictment had been committed, but that the testimony would not be considered by the jury unless subsequent testimony was introduced connecting the defendants, or some of them, with the offense, which the testimony offered tended to prove, and then only as to such of the defendants as might be found to have engaged in the offense.”' The view taken by this court at the former hearing was that although the said letter was not in the handwriting of the defendant Young, which might have been sufficient as an independent proposition to have caused its rejection, that the fact that the Reidsville Liquor Company (one of the aliases under which it is alleged said Young did business) received the same and acted thereon so connected Young with the company as to make it competent evidence against him.

To this view we still adhere, upon the facts as thus assumed; but upon a careful review of the evidence in the case we are not satisfied with the conclusion then reached, in that it does not appear entirely to our satisfaction that the facts in the case, independent of the letter itself, so identify Young with the commission of the offense alleged against him, or with the Reidsville Liquor Company, as to make him, liable for the acts of said company.

With the letter in his handwriting in evidence, and the company acting upon the same, it would be conclusive of the guilt of Young as well as of his connection with the company. The letter, however, was admittedly not in his handwriting, and the government should, therefore, before it can use that which was in itself incompetent as evidence either for the purpose of connecting Young with the commission of the crime, or to procure and sustain a verdict against him, establish its case with that degree of certainty necessary to a conviction with such letter excluded. This, we think, the government has failed to do.

It is true that many circumstances of suspicion surround the petitioner, Young, and he may be guilty; but without the letter which forms the basis of the exception in question, and the answer thereto, and what was done as a consequence thereof, the defendant’s guilt is not established with that degree of definiteness and certainty that should be required in a criminal case.

This is particularly true under the federal decisions applicable to the admission and exclusion of evidence, which are to the effect that it should be made to appear beyond a doubt that the improper evidence admitted did not and could not have prejudiced the rights of the party duly objecting. Deery v. Cray, 5 Wall. 795, 807, 18 L. Ed. 653; Gilmer v. Higley, 110 U. S. 47, 3 Sup. Ct. 471, 28 L. Ed. 62; Boston R. R. Co. v. O’Reilly, 158 U. S. 334, 337, 15 Sup. Ct. 830, 39 L. Ed. 1006; U. S. v. Daubner (D. C.) 17 Fed. 793; Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 64 C. C.

A. 180, 189, 129 Fed. 668; State v. Mikle, 81 N. C. 552; State v. Massey, 86 N. C. 658, 41 Am. Rep. 478; State v. Jones, 93 N. C. 611; State v. Goodson, 107 N. C. 798, 12 S. E. 329; Bishop New Cr. Proc. vol. 1, §§ 89, 92, 93, also 1273, 1274, 1275, and 1276, and cases cited. We find ourselves in the position that we cannot say that the admission of the letter in question may not have injuriously affected the defendant Young, nor can we say that the evidence against him, with such letter excluded, is sufficient to sustain the verdict against him.

The defendants, along with their petition for rehearing, present certain affidavits which they claim constitute ground for a new trial because of after discovered evidence, if in the opinion of the court such motion can be entertained.

Without meaning to discuss the question of precedent respecting the application for a new trial on the ground of after discovered evidence' in an appellate court, or what disposition should be made of a case in such court upon presentation of affidavits of the kind, we think that at least the party accused presenting such motion and affidavits should bring himself strictly within the rule applicable to the granting of new trials upon after discovered evidence, which the petitioners in the case have failed to do.

The judgment, therefore, of the lower court, in so far as it affects the defendant Young, will be reversed, the cause remanded to that court, with instructions to award a new trial therein, such new trial to be proceeded with in accordance with the views herein expressed; and the application of the defendant Angle for a rehearing will be overruled, and the former judgment as to him in all respects affirmed.