AUGUSTUS N. HAND, Circuit Judge.
The defendants Farina and Di-Palermo were convicted under all three counts of the indictment mentioned above. The defendant Sperdutto was acquitted under the first count, charging him with possession of counterfeit currency, but convicted under the second and third counts. Farina does not question the sufficiency of the evidence to support the verdict against him. DiPalermo and Sperdutto each made weak contentions that the evidence was insufficient to convict. It is however perfectly plain that there was direct proof against DiPalermo and that his argument as to the insufficiency goes merely to the weight of the evidence and that such questions were for the jury. In the case of Sperdutto there was evidence that he acted as a lookout for the other two defendants at the time the counterfeit money was sold and that immediately afterwards he got into a car which he had furnished, started to drive away with Farina, who had entered the same car, and, on seeing the federal agents, jumped out of the car and attempted to escape. He denied that he knew who owned the car, though there was proof that it was originally registered in his name. Later he admitted that it belonged to his girl friend who allowed him to use it. The woman to whose name the car had been transferred from that of Sperdutto said she did not have a driver’s license and could not drive, but claimed that she had paid him $750 cash for the car and had allowed him the use of it on the occasion in question. The jury might well have believed that Sperdutto’s attempt to disclaim any relation to the car in which he and Farina were driving away involved numerous falsehoods and only added greater weight to the inference of guilt which they might draw from his flight. The claim of DiPalermo and Sperdutto that there was not evidence against them sufficient to go to a jury is clearly without substance.
The only grounds for reversal worthy of serious consideration are the contentions of all the defendants that the trial judge erred in his charge because of his statements about the “presumption of innocence” and his definition of “reasonable doubt.” The entire instruction to the jury as to presumption of innocence, reasonable doubt, and burden of proof was as follows:
[20]*20“Under our law, all persons charged with the commission of crime are presumed to be innocent until their guilt has been established by competent evidence beyond a reasonable doubt. When a person is charged with the commission of a crime, he is -not bound to prove that he did not commit that crime, but the Government must prove beyond a reasonable doubt that he did commit it.
“Every defendant is entitled to rest upon the presumption of innocence in his favor.
“The burden of establishing the guilt of each of these defendants beyond a reasonable doubt rests upon the Government, and this burden never shifts.
“This presumption of law inures to the benefit of all defendants charged with crime. It was designed for the protection of the innocent. It was not intended as a bulwark behind which the guilty might hide. If, however, the Government produces evidence which rebuts the presumption of innocence, and, if the evidence convinces you of the guilt of a defendant, beyond a reasonable doubt, then the presumption of innocence ceases to exist as to that-particular defendant.
“A reasonable doubt is a doubt based upon reason. It is a doubt for which a juror who says that he has such a doubt about a defendant’s guilt, can give a reason for entertaining.
“A reasonable doubt is not a mere guess or surmise that a defendant may not be guilty. It is not a doubt based upon a whim, caprice, prejudice or sympathy or the reluctance of a juror to perform his duty. It is a doubt that must arise from the evidence or the lack of evidence in the case.
“If you are satisfied, in view of the law as I have given it to you, that any of the defendants are guilty of any one or more of the crimes charged, you may say that as to that particular defendant or defendants and as to that particular crime, you have been convinced beyond a reasonable doubt. If you waver or are uncertain of the guilt of any of these defendants as to any particular crime charged against them you have not been convinced beyond a reasonable doubt and. you must render, as to that particular defendant or defendants, and as to that charge a verdict of not guilty.
“The Government is not required to prove the guilt of a defendant beyond all possible doubt, or to a mathematical certainty, because such measure of proof is ofttimes impossible in human affairs.”
In criticizing the judge’s charge regarding the “presumption of innocence,” the defendants have particularly objected to the words that: “It was designed for the protection of the innocent. It was not intended as a bulwark behind which the guilty might hide.” In his definition of reasonable doubt, they specially criticized the statement that: “A reasonable doubt is a doubt for which a juror who says that he has such a doubt about a defendant’s'guilt, can give a reason for entertaining.”
No objection was taken to any part of the charge, and we are satisfied that nothing said in the course of it calls for a reversal.
The statement that the presumption of'innocence was not intended as a bulwark behind which the guilty might hide was in a general sense true. Objection to it will only lie if it might lead a jury to suppose the presumption could not be invoked until a defendant had dispelled proof of his guilt. But such was not the effect of the charge, for the judge had told the jury that a defendant was not bound to prove that he did not commit the crime, but that “the Government must prove beyond a reasonable doubt that he did commit it,” and that “the burden of establishing the guilt of each * * * beyond a' reasonable doubt rests upon the Government, and this burden never shifts.” A decision of the Fifth Circuit as to the proper meaning of the presumption of innocence was recently rendered in Gomila v. United States, 146 F.2d 372, and is strongly relied on by the appellants. The instructions there might perhaps have led a jury to suppose that a defendant could only invoke the presumption after he had established his innocence. Moreover, the Fifth Circuit reversed a conviction, not on the single point that we have mentioned, but because of what was termed a “cumulation of errors” on the part of the trial court. In the case at bar the judge [21]*21expressly staled that the presumption “inures to all defendants charged with the commission of crime” and added if “the Government produces evidence which rebuts the presumption of innocence, and if the evidence convinces you of the guilt of a defendant, beyond a reasonable doubt, then the presumption of innocence ceases to exist as to that particular defendant.” These instructions were so clear and explicit, that any generalization indulged in by the judge to the effect that the presumption was not intended as a bulwark behind which the guilty might hide could not, in our opinion, mislead the jury regarding the duty of the Government to go forward with convincing proof before a verdict of guilty could properly be rendered.
The criticism of the judge’s statement that reasonable doubt is a doubt for which a juror “can give a reason for entertaining” is one which lias long produced some divergence of opinion m the courts.
Free access — add to your briefcase to read the full text and ask questions with AI
AUGUSTUS N. HAND, Circuit Judge.
The defendants Farina and Di-Palermo were convicted under all three counts of the indictment mentioned above. The defendant Sperdutto was acquitted under the first count, charging him with possession of counterfeit currency, but convicted under the second and third counts. Farina does not question the sufficiency of the evidence to support the verdict against him. DiPalermo and Sperdutto each made weak contentions that the evidence was insufficient to convict. It is however perfectly plain that there was direct proof against DiPalermo and that his argument as to the insufficiency goes merely to the weight of the evidence and that such questions were for the jury. In the case of Sperdutto there was evidence that he acted as a lookout for the other two defendants at the time the counterfeit money was sold and that immediately afterwards he got into a car which he had furnished, started to drive away with Farina, who had entered the same car, and, on seeing the federal agents, jumped out of the car and attempted to escape. He denied that he knew who owned the car, though there was proof that it was originally registered in his name. Later he admitted that it belonged to his girl friend who allowed him to use it. The woman to whose name the car had been transferred from that of Sperdutto said she did not have a driver’s license and could not drive, but claimed that she had paid him $750 cash for the car and had allowed him the use of it on the occasion in question. The jury might well have believed that Sperdutto’s attempt to disclaim any relation to the car in which he and Farina were driving away involved numerous falsehoods and only added greater weight to the inference of guilt which they might draw from his flight. The claim of DiPalermo and Sperdutto that there was not evidence against them sufficient to go to a jury is clearly without substance.
The only grounds for reversal worthy of serious consideration are the contentions of all the defendants that the trial judge erred in his charge because of his statements about the “presumption of innocence” and his definition of “reasonable doubt.” The entire instruction to the jury as to presumption of innocence, reasonable doubt, and burden of proof was as follows:
[20]*20“Under our law, all persons charged with the commission of crime are presumed to be innocent until their guilt has been established by competent evidence beyond a reasonable doubt. When a person is charged with the commission of a crime, he is -not bound to prove that he did not commit that crime, but the Government must prove beyond a reasonable doubt that he did commit it.
“Every defendant is entitled to rest upon the presumption of innocence in his favor.
“The burden of establishing the guilt of each of these defendants beyond a reasonable doubt rests upon the Government, and this burden never shifts.
“This presumption of law inures to the benefit of all defendants charged with crime. It was designed for the protection of the innocent. It was not intended as a bulwark behind which the guilty might hide. If, however, the Government produces evidence which rebuts the presumption of innocence, and, if the evidence convinces you of the guilt of a defendant, beyond a reasonable doubt, then the presumption of innocence ceases to exist as to that-particular defendant.
“A reasonable doubt is a doubt based upon reason. It is a doubt for which a juror who says that he has such a doubt about a defendant’s guilt, can give a reason for entertaining.
“A reasonable doubt is not a mere guess or surmise that a defendant may not be guilty. It is not a doubt based upon a whim, caprice, prejudice or sympathy or the reluctance of a juror to perform his duty. It is a doubt that must arise from the evidence or the lack of evidence in the case.
“If you are satisfied, in view of the law as I have given it to you, that any of the defendants are guilty of any one or more of the crimes charged, you may say that as to that particular defendant or defendants and as to that particular crime, you have been convinced beyond a reasonable doubt. If you waver or are uncertain of the guilt of any of these defendants as to any particular crime charged against them you have not been convinced beyond a reasonable doubt and. you must render, as to that particular defendant or defendants, and as to that charge a verdict of not guilty.
“The Government is not required to prove the guilt of a defendant beyond all possible doubt, or to a mathematical certainty, because such measure of proof is ofttimes impossible in human affairs.”
In criticizing the judge’s charge regarding the “presumption of innocence,” the defendants have particularly objected to the words that: “It was designed for the protection of the innocent. It was not intended as a bulwark behind which the guilty might hide.” In his definition of reasonable doubt, they specially criticized the statement that: “A reasonable doubt is a doubt for which a juror who says that he has such a doubt about a defendant’s'guilt, can give a reason for entertaining.”
No objection was taken to any part of the charge, and we are satisfied that nothing said in the course of it calls for a reversal.
The statement that the presumption of'innocence was not intended as a bulwark behind which the guilty might hide was in a general sense true. Objection to it will only lie if it might lead a jury to suppose the presumption could not be invoked until a defendant had dispelled proof of his guilt. But such was not the effect of the charge, for the judge had told the jury that a defendant was not bound to prove that he did not commit the crime, but that “the Government must prove beyond a reasonable doubt that he did commit it,” and that “the burden of establishing the guilt of each * * * beyond a' reasonable doubt rests upon the Government, and this burden never shifts.” A decision of the Fifth Circuit as to the proper meaning of the presumption of innocence was recently rendered in Gomila v. United States, 146 F.2d 372, and is strongly relied on by the appellants. The instructions there might perhaps have led a jury to suppose that a defendant could only invoke the presumption after he had established his innocence. Moreover, the Fifth Circuit reversed a conviction, not on the single point that we have mentioned, but because of what was termed a “cumulation of errors” on the part of the trial court. In the case at bar the judge [21]*21expressly staled that the presumption “inures to all defendants charged with the commission of crime” and added if “the Government produces evidence which rebuts the presumption of innocence, and if the evidence convinces you of the guilt of a defendant, beyond a reasonable doubt, then the presumption of innocence ceases to exist as to that particular defendant.” These instructions were so clear and explicit, that any generalization indulged in by the judge to the effect that the presumption was not intended as a bulwark behind which the guilty might hide could not, in our opinion, mislead the jury regarding the duty of the Government to go forward with convincing proof before a verdict of guilty could properly be rendered.
The criticism of the judge’s statement that reasonable doubt is a doubt for which a juror “can give a reason for entertaining” is one which lias long produced some divergence of opinion m the courts. If the judge had said that a reasonable doubt is one which a reasonable man might entertain, the instruction might not have been illuminating but would hardly have been objectionable to anyone. The appellants argue that the charge given might lead some juryman to suppose that he would be called upon to give his reason. This objection seems fanciful and has already been rejected by this court. Marshall v. United States, 2 Cir., 197 F. 511, 512. The appellants also say that the charge leaves too little room for doubts which cannot be formulated by jurors, but which a reasonable man still might entertain. This contention was rejected as a ground for reversal in our decision in United States v. Woods, 2 Cir., 66 F.2d 262. The only federal decisions dealing with such a charge on reasonable doubt as we have discussed which reached conclusions contrary to our own are those of the Eighth Circuit in Pettine v. Territory of New Mexico, 201 F. 489, and Ayer v. Territory of New Mexico, 201 F. 497, and of the Ninth Circuit in Owens v. United States, 130 F. 279. The Ninth Circuit decision, however, was after-wards distinguished in Griggs v. United States, 158 F. 572, and overruled by that court in Louie Ding v. United States, 9 Cir., 246 F. 80. See also Young v. Territory of Hawaii, 9 Cir., 160 F.2d 289. Perhaps it was unwise to vary the customary formulae employed in charging juries upon the presumption of innocence and reasonable doubt. But it would seem most unreasonable to upset convictions where as here the substantive proof against the defendants was ample, where for lack of a timely objection no opportunity was given to the judge to reformulate his charge, and where the charge as a whole as well as the conduct of the trial was eminently fair.
The defendant Sperdutto contends that he could not properly have been found guilty of selling counterfeit money under the second count, or of conspiracy to possess and sell under the third count, since he had been acquitted of possessing it under the first count. There was no proof that he ever had physical possession of the counterfeit money and the jury evidently thought that because of this he should not be convicted under the first count. On the other hand, his close connection with the other defendants, his action as lookout and his furnishing of the automobile, and his flight were sufficient indications that he had an interest in the disposition of the counterfeit money and was an active factor both in the conspiracy and in the sale.
The judgments of conviction are accordingly affirmed.