it is the trial court's distinct impression that the great bulk of the testimony in this case was direct testimony and the circumstantial evidence was largely corroborative of that. No reason appears to the court why special emphasis should be laid upon the latter.
IV. Defendants complain of the mention by the trial judge that there was a conspiracy and eight defendants had pleaded guilty to it. The mention of these other persons, as will be seen from the language of the charge,
was to get them out of the jury's minds and direct the latter's attention to the persons who had stood trial. Several of the defendants who had pleaded guilty had testified. All were identified in court from time to time by various witnesses. The problem for the jury was, of course, not their guilt, but that of those who stood trial.
It seems anomalous that that which was inserted for the defendants' protection should now be made the basis of complaint;
V. It is complained both that the verdict was unsupported by the evidence and that it was inconsistent. The first point is not well taken and is almost frivolous. There was ample testimony, if it was believed, to support a conviction. The jury were told that it devolved upon them to decide whether it should be believed. Nor is the verdict of guilty on the conspiracy count as to the defendants, Quick and Snover, inconsistent with the not guilty verdict on the substantive counts. These two defendants were liable on the substantive counts, if at all, by reason of the "aiding and abetting" statute.
That statute was read to the jury and explained to them. The jury might well have found, as it did, that while the evidence brought the defendants, Quick and Snover, into a crime looking to the doing of the substantive acts it was not sufficiently strong to establish their participation therein as aiders or abetters. There is ample testimony to support conviction on the conspiracy count alone and it is not inconsistent with reasonable doubt as to the other counts.
VI. The final point made is with regard to error in failing either to exclude or to limit the effect of a book of account found in the home of one of the conspirators and identified by two others who were witnesses in the case. The court admitted the book in evidence after proper foundation laid under the Statute of 1936, § 695, 28 U.S.C.A. The language of the statute is very broad and it seems to the court very clearly to require its admission unless there is to be read into the statute an exclusion from application in a criminal case.
If the book was admissible in evidence should its probative effect have been limited as requested by counsel?
It may be admitted that some state courts under statutes enlarging the common law rule as to books of account have confined the extension pretty narrowly. Such a limitation seems hard to justify under the plain words of the statute and this court takes the position that the statute means what it says.
It was also contended by the government at the trial that the book was admissible as part of the res gestae. Perhaps it was, for res gestae is a concept which seems capable of almost unlimited expansion.
One may suppose that the res here was the conspiracy. Perhaps the recorded account of the "things done" by the conspirators can come in under this head.
In any event, however, it appears that even if the court is wrong in what is said above the error was harmless. Two of the persons who made up the group which kept the book were witnesses at the trial. The witness, Novak, testified at length about the items and was cross-examined concerning them. The same is true of the witness, Dewinsky, in whose handwriting the entries were made. The examination and cross-examination by counsel covered everything of significance found in the book. The jury had nothing from it that it did not have through oral testimony. The force and effect of both were left for them to decide.
Motions for new trial are denied as to all the defendants.