contrivance to give false testimony arose. Judge Learned Hand pointed out in the Di Carlo case, 6 F.2d at page 366, that 'It is well settled that, when the veracity of a witness is subject to challenge because of motive to fabricate, it is competent to put in evidence statements made by him consistent with what he says on the stand, made before the motive arose.'
By citing Ryan v. United Parcel Service, Inc., 2 Cir., 1953, 205 F.2d 362, defendant in effect admits that the admissibility turns upon whether or not a motive existed at the time the prior consistent statements were made to fabricate a story. Again in Dowdy v. United States, 4 Cir., 1931, 46 F.2d 417, 425 the reason assigned for inadmissibility was that 'it is obvious that a motive to testify falsely existed then fully as much as it did at the time of the trial.' Even so, the court allowed the declarations of the witness made prior to his arrest and admitted solely for the purpose of corroborating his trial testimony.
Defendant asserts that the court failed to make clear in his charge to the jury that Johnson's testimony was not to be considered as substantive evidence but merely related to Ginter's credibility. An examination of the charge makes it clear that Ginter's credibility alone was emphasized. (Transcript of Charge, p. 16.) Referring to the testimony of the two F.B.I. men the court said: 'And as to them, you will apply the same standards of credibility as you do to any other witnesses * * *.' (Transcript of Charge, p. 19.) Moreover, Rule 30 of the Federal Rules of Criminal Procedure states, in part:
'* * * No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.'
Defendant did not comply with this rule.
Lastly, defendant asserts that the court committed numerous errors in its charge, prejudicial to the defendant. Specifically, defendant alleges the court erred in its charge on character evidence in that it did not charge that character evidence alone was enough to engender a reasonable doubt. The Third Circuit view on this matter has been set forth repeatedly. United States v. Johnson, 3 Cir., 1947, 165 F.2d 42, certiorari denied, 1948, 332 U.S. 852, 68 S. Ct. 355, 92 L. Ed. 421, jury need not acquit defendant merely because he possessed a good reputation before indictment; United States v. Augustine, 3 Cir., 1951, 189 F.2d 587; United States v. Claypoole, 3 Cir., 1955, 227 F.2d 752. All of these decisions hold that the trial court is not obliged to charge that character evidence alone is enough to create a reasonable doubt.
Defendant further asserts that, relative to the charge on the matter of reasonable doubt, the court misquoted the approved definition. The court charged:
'So that there be no trouble about it, now I shall give you the approved definition. 'A reasonable doubt is not a mere possible doubt but it is that state of mind which after a full comparison and consideration of all the evidence leaves the mind of the jurors in that condition that they can say they feel an abiding conviction to a moral certainty of the truth of the charge." (Transcript of Charge, p. 13.)
The court omitted to include the word 'not' after the word 'can.' That part of the charge should have read: '* * * in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.' However, it is elementary that a court's charge must be taken as a whole. Repeatedly, the court emphasized the fact that the proof must reach a level beyond a reasonable doubt. A content analysis of the charge reveals that the term reasonable doubt appears on page 9, 10, 12, 13, 14, 17, 18, and 20. On some pages, the term appears with the usual admonition more than once.
Defendant next asserts that the court's charge as to the elements to be considered by the jury was insufficient. Defendant asserts that the court asked the jury to consider but two of the necessary elements of the crime. An examination of the charge reveals that intent was charged (pages 14, 15); causing a false completion certificate to be passed was charged (pages 4, 14, 15); wilfully, unlawfully, and feloniously (pages 14, 15); with knowledge (pages 5, 15); and that defendant intended that such be offered and accepted by the F.H.A. (pages 6, 7, 14, 15).
Defendant, for the first time, complains that the court erred inadvertently by 'assuming the role of the United States Attorney.' More specifically, defendant says that the court propounded leading and suggestive questions which would not have been allowed by the court if they had been asked by counsel. The record reveals that the isolated questions directed to the witnesses were wholly within the power of the court in its effort to elicit the truth. In Glasser v. United States, 1942, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680, the Supreme Court held that a district judge conducting a jury trial in a criminal case has a sound discretion to interrogate witnesses. It is submitted that the conduct of the court was entirely compatible with the canons of judicial impartiality.
I am of the opinion, after a full consideration of what the defendant has offered, that under either rule he is not entitled to a new trial. The defendant has submitted no proof which would support a finding by a jury that the testimony received in evidence at the trial was false. There is no newly discovered evidence which would justify the conclusion that if the statements of defendant's handwriting expert were submitted to a jury a verdict of acquittal would result.
There was adequate evidence to warrant the jury's verdict, returned in about forty minutes after a three-day trial.
The motion is denied.
An order may be submitted in conformity with the opinion herein expressed.