The opinion
EVANS, Circuit Judge
(dissenting).
The assignments of error may be divided into two groups: (a) those that deal with the indictment; (b) and errors allegedly committed in the course of the .trial.
Group (a) must likewise be divided into: (1) attacks on the grand jury and its authority to return the indictment here involved, and (2) assaults on the various counts of the indictment due to their alleged duplicity and inconsistency.
Convinced that the grand jury was within its authority in returning this indictment, I am compelled to dissent. This assignment raises a most important question. The holding of the majority opinion will greatly handicap the prosecution of offenders, who have concealed the facts establishing their crimes, so successfully, that a prolonged investigation into their activities is necessary. Moreover, I feel so certain that none of the counts of the indictment is demurrable because of inconsistency or duplicity, that dissent here, too, is necessary.
The assignments of error which challenge the sufficiency of the evidence to sustain the conviction of the first four counts set forth in the indictment have raised doubts which have made me pause, but here, too, I am persuaded that the evidence presented a jury question.
Other questions I shall discuss at such length as their importance, in my opinion, deserves.
(1) Defendants contend that the grand jury returned the indictments upon investigations begun during extensions of its term, rather than during its initial term. This, it is asserted, was contrary to the statute, 28 U.S.C.A. § 421 , which reads:
“ * * * A district judge may, upon request of the district attorney or of the grand jury or on his own motion, by order authorize any grand jury to continue to sit during the term succeeding the term at which such request is made, solely to finish investigations begun but not finished' by such grand jury, but no'grand jury shall be permitted to sit in all during more than eighteen months: * *
My reasons for rejecting defendants’ urge in this regard are:—
(a) It is not shown that the indictment was a result of subsequent investigations, i.e., investigations begun at the February or March Terms, rather than at the December Term.
(b) The indictment itself states that the investigations were in fact begun at the December Term.
(c) The crimes charged, all flowed from the same comprehensive and integral plan, .so that in fact there could be but one investigation, although, because of statutory provisions, each year’s attempt is made an “annual” crime as to each participant.
(d) The investigation as to the tax year 1939, which the proof pointed to, as necessarily showing a beginning of the investigation at the March, 1940 Term (because the crime was not committed un *129 til March 15, 1940) may well have been anticipated and investigation of its probable future commission begun at the grand jury’s initial term in December, 1939. In fact, a study of this year may well have been deemed necessary to confirm the facts, and the proper deductions from such facts, developed in the investigation of previous activities. It would have been negligent.for them not to have continued their investigation of the criminal plan to the date of the hearing, when their investigation pointed strongly to the existence of a criminal enterprise in the years 1936, 1937 and 1938.
(e) In construing the statute, we must give a fair and rational construction to the word “investigation” otherwise a conclusion, unreasonable in its results will be reached.
To better understand the situation, I restate briefly the facts which this contention concerns:
December, 1939 The grand jury was impaneled. January 24, 1940 The first order extending the term of the grand jury.
Feb. 28, 1940 The second order extending the term of the grand jury.
March 1, 1940 The indictment No. 32127 against Johnson for same transactions as in counts 1, 2, and 3, of instant indictment, was returned (February Term.)
March IB, 1940 Commission of last substantive offense charged, i. e., in regard to 1939 tax.
March 29, 1940 The instant indictment returned, during March Term.
The first order of extension, made January 24, 1940, authorized the grand jury to sit during the February, 1940 term of court to finish investigations begun but not finished at the December, 1939 Term. We should presume they did what they were ordered to do.
The second order of extension of the term of the grand jury (which order is the basis of defendants’ attack) was on the petition of the grand jury therefor:
“Now comes the * * December Grand Jury * * and * * requests that an order be entered authorizing them * * (the said Grand Jury) heretofore authorized to sit during the February 1940 Term * * to continue to sit during the * * March 1940 Term * * to finish investigations begun but not finished * * during the said December 1939 and the said February 1940 Terms * *.
“It is Therefore Ordered That the * * December Grand Jury '* * be * * authorized to continue to sit during the March 1940 Term of Court for the purpose of finishing said investigations.”
The defendants argue that since the indictment was returned during the third term and covered: (a) crimes 1 which had been the subject matter of an indictment returned during the second term, and as to which presumably investigations had been finished in said second term, a new investigation of such crimes, must therefore have been begun in the third term; (b) crimes 2 not theretofore covered in the first indictment, and one of them in fact not committed until the third term — a fortiori, investigation as to these crimes could not have been begun in the first' — • December — Term and therefore any indictment charging such crimes is void because predicated on an investigation which the grand jury had no right to make, having been initiated during extensions of its original term.
This contention, though somewhat plausible, is quite fallacious.
(1) The indictment’s preamble alleges
“The Grand Jurors * * at the December Term * * having begun but not finished during said December Term of Court among other things an investigation of the matters charged in this indictment, and having continued to sit by order of this court * * for the purpose of finishing investigations begun but not finished during said December Term of Court
This was the same grand jury which presented the petition containing the words, allegedly ambiguous, upon which the order here assailed, is based. Should not their formal statement, made at the culmination of their deliberations be considered as proof positive of the facts they recite? -Must not the formal statement of the grand jury as to their own acts, done in the secrecy of the grand jury room, be accepted? As against such positive statement, defendants without knowledge, make statements in the nature of conclusions, without explanatory basis or sources of information given— when it is apparent they make such statements merely on their own deductions from the fact that the fourth count of the indict *130 ment dealt with a fact which occurred after the December Term had expired.
The recital of this fact in the indictment can not be challenged by a demurrer, plea in abatement, or motion to quash, all of which challenge issues of law (Longsdorf, Cyclopedia of Federal Procedure, Secs. 2122, 2136, 2145.)
(2) The first order of extension, made January 24, 1940, authorized the grand jury to sit during the February, 1940, term of court to finish investigations begun but not finished at the December, 1939 term. Must we not presume the grand jury acted as it was legally directed to act, during the February term, i.e, finish investigations begun at December Term? If such be the fact, the second extension only gave them permission to continue investigations begun at the December Term, because they had had no authority to begin any other investigation during the February Term.
(3) The crimes, which the grand jury was investigating, were in reality the fruition of a single scheme, the results of which were multiple crimes arising not by virtue of the fact that distinct, separate, transactions and schemes were involved, but because the income tax statute makes possible a recurring crime for each annual period of its existence. As was said in the case of United States v. Sullivan, 2 Cir., 98 F.2d 79, 80 ,
“Indeed, the crimes charged in the indictment describe one course of conduct extending over several years, which results in separate offenses simply because the duty to file a return and pay the tax is one that recurs every twelve months.”.
The scheme (assuming here its existence) was of a single, comprehensive plan wherein A, B, C, D, and E, claimed ownership of the respective gambling houses in order to relieve F, the real owner, of a liability for larger surtaxes. The scheme was a single one. It was to run for an indefinite period. In the course of its life various crimes were committed, some against state laws, some against' Federal laws. The grand jury was put on the trail at its December Term. Due to the successful covering of all tracks, time and effort were required by the grand jury to ascertain whether the defendants’ action was merely to avoid state law prosecutions or whether said defendants had committed violations of Federal criminal laws and were seeking to conceal their violations.
The grand jury was unable to complete its investigation in one month. It sought, and secured, an extension of time. Still it was unable to complete its investigation. It again sought and secured an extension of time. Undoubtedly, information was obtained during the first extension that had not been uncovered during the . pecember Term. But it was the same criminal scheme, the investigation of which was begun in the December Term. The grand jury could validly continue to investigate the facts originally found at the December Term, supplemented by what it found during the first continuance, for it was the same illegal scheme which was being investigated.
Assume now, as defendants contend, that the grand jury began its investigation of later aspects of this same illegal scheme during the February or March terms. In fairness to them, must we not accept their statement that they were merely continuing investigations begun at December Term? There is nothing to indicate these defendants formally terminated their relationships and started new ones each year, thereby making a new, an annual conspiracy. No, the defendants A, B, C, D, and E, having long ago conceived the plan of deceptive ownership of the various houses, merely maintained the same relationship through the years involved. The most that can be said, is that the evidence which the grand jury may have considered at its later sessions manifested the continued life of the identical, integral, continuing scheme to defeat the income tax law by numerous deceptive acts. They may have come to the grand jury’s attention later, but they were a part of the same investigation begun at the December Term.
The majority opinion places much weight on the fact allegations in the motion to quash — on the ground that such facts are admitted by the Government’s motion to strike — which facts stated that as to the first three counts the investigation was necessarily completed on the return of the first indictment in February Term and such investigations being finished, they could not be again renewed (begun) during an extension of the same grand jury term because such extensions are made solely to cover investigations begun but not finished during the initial term. The motion to quash also states as a fact that, as to the fourth count (1939 taxes) no investigation was begun until the March Term.
*131 In passing it should be said that the allegation of such facts, wholly hearsay and unsupported by proof, and set forth in the nature of a conclusion, are properly challenged by a motion to strike.
As to the first three counts — of what materiality is the fact that the same crimes were covered by an indictment during the first extension of the term? Nothing could be better evidence of the fact that the investigation relative thereto was “not finished” during that extension than the fact that the grand jury found it necessary to present a second indictment to cover the same offenses. (The majority opinion concedes the right to continue investigations, even after the return of a first indictment. What is there then to prevent the indictment, on this issue, being valid as to the first three counts, and therefore valid support of the judgment?)
We ought not ignore the well-established rule that rulings on motions to quash and plea in abatement to indictments are not reviewable here, for “unless (there is) such a failure to properly exercise judicial discretion as to cause real injustice * * defendant can not complain where no prejudice has resulted. * * * ” 3
The majority opinion states, “We are unable to discern how an illegal order of continuance can be cured or even aided by an_ allegation in the indictment to the effect that the Grand Jury was legally continued.” Admitting that an illegal order of continuance is void, my position is that the instant order is neither illegal nor void when construed in the light of the facts shown by the indictment and the continuing nature of the crime under investigation. The indictment does not recite that the grand jury was “legally continued.” It recites facts from which that deduction is inescapable.
The indictment states all the investigations were begun at the December Term. The first order directed them to continue only investigations begun at the first term. The second order permits them to “continue to sit for the purpose of finishing said investigations.” The petition upon which the second order was based recited the grand jury had been theretofore authorized to sit during the February Term (note, it was only to finish investigations begun in December) and asked to be authorized “to continue to sit to finish investigations begun but not finished by * * (them) during the said December, 1939 and the said February, 1940 terms.”
Why can not the time phrase “during the said' December and the said February terms” be construed to modify merely the verb “finished” and not the preceding verb, “begun”- — and the verb “begun” be read in the light of the first order of continuance, to mean “theretofore begun” in the December Term? I can reach no other conclusion than that a fair reading of the two petitions for extension of time and the language of the indictment wherein the grand jurors stated that they continued “to sit for the purpose of finishing investigations begun but not finished during said December Term of Court,” is sufficient to close the door to further discussion.
But another reason for this conclusion is to be found in the word “investigation” as used in this statute. “Investigation” is a noun which defines action. Alone, it is indefinite and well-nigh meaningless. The grand jury began its investigation when sworn in. Charge of Justice Field to Grand Jury, Fed. Cas. No. 18,250. Note to 22 A.L.R. p. 1356. Blair v. United States, 250 U.S. 273 , 39 S.Ct. 468 , 63 L.Ed. 979 . Investigation of what? Of crimes which were committed in the District ? If this be its meaning then the field of investigation after the continuance, was limitless. This all-inclusive meaning must be rejected, I think, if for no other reason than that it renders meaningless the sentence wherein the word appears. The word “investigation” must have a more restricted connotation. A more limited and rational meaning of this word may be had if we bear in mind what the grand jury is organized for, and to emphasize the fact that it is to investigate facts. Being laymen (usually), they are hardly qualified to investigate legal questions such as are raised by counsel for accused after the indictment is returned. The grand jury investigates the facts brought to its attention, which facts establish or point to the commission of a crime.
To illustrate, — Before the grand jury, appears a witness, and tells of D’s making and selling large quantities of liquor. Other witnesses confirm the story. The search is continued. The trail becomes hot. Defendant is not the only one involved. It appears the territory covered by the operations is extensive and the business, large. *132 The participants are numerous. Also, it appears that a master mind behind the scenes directs the operation of all. He divides the spoils, retaining a goodly portion for himself.
The grand jury is unable to complete its study within the month and asks for, and secures, an extension of time in which to “investigate”. To what must its investigation be confined during the continuance?
Let us go further with our imaginary case. During the second month’s investigation the proof becomes more definite and clear as to individuals, as to crimes committed, and also of a conspiracy to commit them, as well as the names of the parties thereto. In justice, however, to the individuals, possibly innocent, whose names have been on the tongues of several witnesses, more time is needed and a second order of continuance is sought and obtained.
Finally, the indictments are about to be drawn. Unexpectedly, a witness appears who gives testimony which, in view of the previous stories, is entitled to great weight. He admits his own .participation in the enterprise. He is an actor who played a leading role in the tragedy. He is an accomplice, and his motive is to obtain immunity. However, he adds a new phase to the case. He tells the story of the inside working of the crimes. The long-continued success of the enterprise is due to the fact that the master mind has repeatedly bribed a revenue agent and thereby avoided prosecution.
Was the new crime, to-wit, bribery of the Government officer a part of the original investigation? Who is to determine when the grand jury investigation began, which disclosed not only the commission of substantive crime, but of conspiracy? If there were separate investigations, when did one end? The other begin?
Under the holding of the majority opinion the grand jury could not indict except for the substantive crimes which had been proven in the first month’s investigation. Moreover, the court (and perhaps a j)etit jury) was required to first try and determine when the investigation of count one began — and also of counts 2, 3, 4, and 5. The statement of the grand jury in its indictment is of' no avail.
The more logical construction of the word “investigation”, as here used, it seems to me, can be had by limiting it to those matters which engaged the attention of the grand jury during the December Term, but not restricting it to crimes which had been established during that first month’s inquiry. If the facts established by the testimony brought out on the second or third continuance of the grand jury disclose a crime or crimes, and such facts are associated with the subject-matter of the investigation of the first term, the grand jury may validly indict therefor.
The rights of defendants charged with crime should always be diligently protected. Courts and grand juries, statutory creatures that they are, should never exceed their statutory powers. But, just as important, is the binding force of a conviction of one accused of crime, whose long and carefully contested trial has resulted in a verdict of guilt. We must not be deceived by astute presentation of a hypercritical contention which delves into the niceties of every possible technical defect, be it, as here, the ambiguity of the second order continuing the grand jury term, or the question of duplicity, discussed immediately following. Pleadings and orders in criminal cases should be read and construed rationally and reasonably and fairly. Grand juries and indictments are to prevent false and malicious charges and to inform defendants of the charges upon which they must stand trial. That is their sole purpose.
2. Duplicity. Was there duplicity? Was there a charge that the co-defendants were accessories after the fact ?
The specific wording of the counts challenged negatives any intent to charge a crime other than aiding and abetting the crime of attempting to evade the income tax for each year. The language is clear and only hypercritical deductions can support a contention that the crime of accessory after the fact was also meant to be charged. As was said by this court in Meyer v. United States, 7 Cir., 258 F. 212, 214 ,
“Another contention is that the indictment does not show that the overt act was done to effect the object of the conspiracy. Invoking the rule that inferences are to be taken against the pleader, plaintiffs in error insist that we shall infer that they lawfully turned over the * * * check * * *. But the rule does not extend to imagining inferences that are contrary to the fair common-sense reading of the averments.”
Obviously, the attempt to evade a tax is a continuing crime, running to the date of the Government’s discovery and indict- *133 merit therefor. It may, of course, encompass several distinct offenses in the course of its duration. The attempt is effectuated in part by the filing of the return on March IS, partly by concealing of records, failure to keep books, continued holding by others of income-yielding businesses of taxpayer, etc. The crime of attempt is not necessarily ended with the filing of the return, if the attempt in fact continues thereafter. Neither is the crime of aiding the attempt, there ended. The attempt to evade may be, and often is, finally terminated on its discovery by the Government. This reasoning does not, however, preclude the indictment of the taxpayer for some isolated act effecting the attempt, such as the filing of a false return on a particular day.
Counsel stress the fact that co-defendants are charged with aiding not only before March 15, of each year, but continuously thereafter, to the date of the indictment. Aside from the suggestion just made, that the crime of aiding the attempt actually continued for such period, it may be pointed out that Johnson, the principal, was charged not only with filing a false return on the particular date specified, March IS, but— without specifying the time — charged that he concealed from the Government officers his income and all books and records reflecting such income.
A plain reading of the counts discloses the charge of but one offense, i. e., aiding and abetting the offense.
But, conceding there was a multiplicity of offenses charged, was it a prejudicial or reversible error? Not if the inescapable trend of precedents upholding indictments against attack on the ground of duplicity where no prejudice is shown, be followed. 4
Language of Indictment Indicative of Charge of Single Crime, in each Count. A study of the indictment plainly reveals Johnson (in count one) is charged simply with an attempt to defeat and evade income taxes in that he “did wilfully and knowingly attempt to defeat and evade a large part * * of a tax upon his net income for the calendar year 1936 * * which said wilful attempt * * was by means and in the manner following (here follow numerous recited acts, in themselves offenses, which Johnson claims rendered the indictment duplicitous as to him) * As to co-defendants, it is specifically charged that *134 “during- the’ calendar year 1936 and up to and including March 15, 1937, and continuously thereafter up to and including the date of filing this indictment * * (naming co-defendants) did unlawfully, feloniously, wilfully and knowingly aid, abet, conceal, induce and procure the said defendant Johnson * * to attempt in the manner aforesaid to evade and defeat the income tax aforesaid * * by the means and in the manner aforesaid * * 26 U.S.C.A. Int.Rev.Code § 145.”
The co-defendants are charged merely with aiding in such attempt. They are not charged with being accessories after the fact as they allege, but merely with continuously aiding the attempt. The words “feloniously aid in the attempt in the manner aforesaid” conclusively show the pleader had but one crime in mind, and that was not the misdemeanor of an accessory after the fact.
Moreover, duplicity does not arise from the fatt that the allegations would support the charging of two crimes, if in fact only one be charged or adequately stated. 5 I think that is the instant situation.
Where Several Crimes Recited Are Incidents of One Transaction There Is No Duplicity. Duplicity does not arise where the offenses charged are merely varying aspects or incidents of the same transac *135 tion. 6 The principal offense here charged was the attempt to evade income taxes. The co-defendants’ offense was aiding that attempt. They gave such aid before the filing of the return by filing separate returns which misled the Government as to the true ownership of the houses, and, after the return, by concealing, failing to keep, or destroying, records, and by continuing the deceptive ownership of the various houses. All the acts were simply means of effecting their crime of aiding the attempt —that was all that was charged by the indictment or punished by the sentence. I have very serious doubt that an aider of the crime, who is punished as a principal, could also be punished as an accessory after the fact, even if it were so charged. When he becomes a principal, the other offense becomes merged. Otherwise, an aider before the fact and after the fact could be more seriously punished than the principal, which was hardly within the contemplation or purpose of the Act.
Allegation of Dates May Be Treated as Surplusage. The indictment which gives rise to the alleged duplicity concerns the dates, or period, covered in connection with the said complicity of the co-defendants. Such dates or allegation of period may be treated as surplusage. The date is not a material element of the offense charged— and the period beyond the March 15, if that be taken as the crucial date, may be *136 considered as surplus allegation 7 or be corrected by the facts proved. 8
Duplicity may be error of form, which under 18 U.S.C.A. § 556 , does not render the indictment bad. 9
Looking at this matter of the allegation of the continued aid of the principal’s attempt to evade each year’s tax, from an ordinary, common sense viewpoint, we have simply a case of A, B, C, D aiding E to evade 1936 tax by X means, and aiding the attempt to evade the 1937, 1938, and 1939 taxes by the same X means — they have really but used the X. means continuously to assist the effectuation of the annually recurring attempt, and, since the assistance covered at least four years, and appertained to all years’ taxes, this assistance is, unfortunately for the co-defendants, made four offenses by virtue of the statutory annual recurrence of criminal liability. Since such assistance existed in each year as to that respective year’s taxes, and perhaps inferentially, though, not inevitably, as to the preceding year’s or years’ taxes by virtue of the Government’s failure earlier to discover the scheme, no prejudice and no untruth in allegation occurred. Where there is no prejudice, no reversible error results from duplicity. 10
No Prejudice Where A Sentence Is Supported by One Valid, Count. It is most important to recognize the fact that the judgment of sentence arid fine on each of the substantive counts was to run concurrently with that imposed on the first count. Under the well-settled rule, if one count supports the judgment, it will not be overruled even though other counts do not sustain the judgment. 11
Does not the first count sustain the judgment? What is the sentence and fine? Are they not merely the maximum penalty for one found guilty as an aider and abettor, i. e., as principal (and not accessory) in attempt to evade?
Reading this evidence with a most indulgent eye and giving the verdict the credence and weight which is its due in a criminal case, I can not, in all generosity to these defendants, charged with attempting to evade, or assisting in such evasion, find it possible to say there was no evidence for any of the years, 1936 to 193*9, to sustain the verdict and judgment.
Statutory Reference in Count to the "At tempt” Statute, Not the “Accessory After the Fact” Statute. The counts of the indictment here challenged refer to but one statute as the foundation of the indictment,, namely, the statute making it an offense to attempt to evade income taxes, 26 U.S.C.A. Int.Rev.Code § 145. It does not cite the “accessory after the fact” statute, 18 U.S.C.A. § 551 . The indictment uses substantially the phraseology of said statute and specifies the crime to be, inter alia, a “felonious” aiding and abetting, which it could not be if the charge were one of accessory after the fact, which is a misdemeanor.
BÜI of Particulars Indicated Single Offense of Aiding Was Charged. The bill of particulars (Part VI, A) is illuminative of the pleading in the indictment relative to the “continuous” nature of the aiding and abetting, namely, that the identical scheme for aiding continued throughout the years, i. e., the fictitious ownership of the various houses, the filing of false returns, each rel *137 ative to the particular year’s taxes attempted to be evaded. Even as to acts which might most readily be construed to be acts of an accessory after the fact, such as in Part VI A 10 of the bill of particulars — “On December 29, 1939, * * (co-defendants) made a false statement to certain Internal Revenue officers.” But this accusation is followed not by a charge of being accessory after the fact, but by the allegation “and thereby did then and there knowingly aid and assist said Johnson in wilfully attempting to evade and defeat * * the payment of his individual income taxes *
Instruction Was Only for Offense of Aiding. The charge to the jury covered solely the “aiding and abetting offense” and a reading of the statute providing therefor and making an aider a principal. 12 The court in instructing the jury said
“Generally speaking, counts 1, 2, 3 and 4 charge the defendant William R. Johnson with willful attempt to defeat and evade income taxes alleged to be due * * and charge the other defendants with aiding, abetting, inducing and procuring the defendant Johnson in his attempt to defeat and evade. (Then quotes the statutory provision on aiding and abetting.)
“Accordingly, it is the law that one who aids, abets, counsels, commands, induces or procures the commission of a crime is a principal, and you may consider Counts 1, 2, 3 and 4 of the indictment as charging that all of the defendants wilfully attempted to evade and defeat the income taxes alleged to be due from * * Johnson *
Sentence Was Only for Offense of Aiding. The sentences of the co-defendants were solely for the “aiding and abetting” offense (and conspiracy). There was therefore no prejudice to the defendants, and it is indicative, as was the instruction, that but one offense was alleged, tried, and found. 13
Indictment in Language of Statute Sufficient. The offense of aiding and abetting was charged in substantially the language of the statute, and is sufficient. It was not subject to demurrer, motion to quash or demand to elect. The indictment charges the co-defendants did “unlawfully, feloniously, wilfully, and knowingly, aid, abet, conceal, induce and procure the said defendant Johnson * * to attempt in the manner aforesaid to evade and defeat the income tax.” The “aider” statute provides, whoever "aids, abets, counsels, commands, induces, or procures its commission, is a principal.” 18 U.S.C.A. § 550 . These two phraseologies are sufficiently parallel to render the former an allegation simply of an aider of the attempt and an allegation of the offense in the statutory terms, and therefore valid. 14
*138 3. Witness Clifford’s Answer to Hypothetical Question. The majority opinion stresses the error arising from the Government’s accountant Clifford’s testimony, who it is contended, by defendants, usurped the jury’s function, 15 when answering a hypothetical question — to the effect that Johnson had a taxable income in excess of that which he reported.
It is conceded that hypothetical questions have their proper place, but they must be predicated on stated “assumptions” as to evidence presented, and the witness is not to be permitted to decide the ultimate facts and thereby usurp the jury’s function.
But merely studying the quotations of the record given in the majority opinion it is obvious that the answers were to questions framed on assumptions. He is asked the amount of Johnson’s income, say for 1936, according to his computaticms, with “exhibits and evidence in the record” “used as a basis for his computation.” The “exhibits and evidence” were Johnson’s tax returns, certified copies of local assessment lists, escrow agreement, Bon Air records, accountant Horwath’s records, etc.”
An accountant may be permitted to total income from all the sources mentioned in the exhibits he has identified, and state such total solely as “his computation.” The defendants can in defense show their evidence, and the jury’s function is to make their own computation, guided, if they wish to be, by the accountants for the respective sides.
Whether or not Johnson had income in excess of that which he reported was one of the facts which the jury had to determine from all the evidence. The jury could and probably did reject some evidence as not credible or relevant. If it did not believe the Bon Air records were pertinent to Johnson’s income tax liability, they could be discarded, and the jury could also throw out Clifford’s conclusions along with it.
We are here dealing with a long trial wherein the defendants exercised their right to a jury trial. We cannot assume that the jury failed to properly weigh the evidence or that it lacked the intelligence to understand what the charge involved and the nature and quantum of proof necessary to sustain the charge. It would indeed be hard to believe that any juror failed to understand that the witness’ answer was not based on said witness’ assumption of taxable income.
Both counsel cite the Guzik case, supra, 7 Cir., 54 F.2d 618, 619 . The case favors the Government’s contention though not a square holding that the identical question here under review was proper. It was there said:
“Objection was made to the submission of a hypothetical question asking a witness to calculate the amount of tax which would be due on the assumption that the government’s evidence (bank deposits and dividends, etc.) reflected taxable income. Since the computation is merely an arithmetical process, thereby avoiding any difference of opinion-as to the result, the objection must be considered as directed to the assumption that the items set forth were income. Objection was also made that such question did not include certain other facts tending to show losses. In discussing the limitations on hypothetical questions, Jones, in his Commentaries on Evidence, states : ‘ * * * Where the facts are in dispute it is sufficient if a hypothetical question fairly states such facts' as present the examiner’s theory of the case. It cannot be expected that the interrogatory will include all the contentions or theory of the adversary, since this *139 would require a party to assume the truth of that which he generally denies. * * * Each side, in an issue of fact, has its theory of what is the true state of the facts, and assumes that it can prove it to be so to the satisfaction of the jury, and so assuming, shapes hypothetical questions to experts accordingly. A question should not be rejected because it does not include all the facts of which there is any evidence at all. * * * Generally speaking the trial court is the arbiter of the propriety of the question; and the real test of the propriety of any given hypothetical question is its fairness. * * * ’ We conclude that the government’s assumption that the receipts constituted evidence of income was the valid basis for the hypothetical question submitted. The jury still had to determine the controverted issue of whether the assumption were correct.”
If one were to frame a technically correct hypothetical question in this kind of case, the preamble would be so long the jury would be unable to retain the facts on which the question was predicated. Hundreds of items would need to be considered in determining Johnson’s annual income. A hypothetical question including them in its premise would be of doubtful value.
Moreover, guilt does not depend on a finding that every item which the Government claims should be included, be accepted by the jury. It was not every item which was decisive of the outcome.
Another factor in the framing of hypothetical questions arises where the witness has just testified to the facts on which the question is based. That was the case here. In such instances, it is hardly necessary (unless the situation necessitates the recital so that the jury will understand the answer) that all the testimony which he has just given should be restated at length in the question. 16
4. It is contended that the proof does not sustain the conspiracy charge — i. e., appellants were not shown to have conspired specifically to aid Johnson in his attempt to defeat his income tax. It may be admitted that they acted jointly, even conspired, but, so it is argued, the object of their joint action was not to defraud the U. S. Government out of its income taxes, but to avoid prosecution of the Illinois statutes dealing with gambling.
The jury found that the income of the respective houses belonged to Johnson by virtue of his ownership of them — a fortiori, neither the income nor the houses belonged to the co-defendants, and they therefore were intentionally combining to mislead the Government in income tax matters by filing tax returns as owners of the houses when in fact they knew the houses and their income belonged to Johnson, and should have been reported by him. It would be strange that this same group should go on year after year filing these deceptive returns if it were not done pursuant to an agreement of each co-defendant with Johnson.
The rather nebulous strands with which the Government’s evidence wove the several defendants together convinced the jury that each defendant knew his place in the scheme and knew of the others’ participation. We cannot review such evidence. The credibility of the witnesses, some in denying all intent of conspiracy to attempt to evade income tax, and others, in giving evidence of a common enterprise, to deliberately mislead the Government in its ascertainment of income received — is not for us to review. The jury alone must weigh the words of those who appear before it and neither this nor the district court can set aside its findings.
*140 It should also be mentioned that the sentence imposed upon the conspiracy count (which punishment is lesser than on the substantive counts) was by the judgment made to run concurrently with the other sentences, so that reversal can not be won for insufficiency of the evidence to support the conspiracy count, if any substantive count supports the judgment.
It may be admitted, so it is argued, that all the defendants acted jointly, even conspired together, but the object of their joint action was not to defraud the United States Government out of its income taxes, but to avoid prosecution for gambling under the Illinois statutes.
It is, of course, conceded, that a conspiracy may be established by circumstantial evidence. But, defendants argue, it must be established, — and the conspiracy must be the one charged in the indictment. To meet this requirement, the Government’s proof disclosed deceptive ownership of gambling houses and the filing of income tax returns by co-defendants, as owners, when, in fact, neither the property nor the income was theirs. This alone not only tended to establish, but rather conclusively proved the joint effort was to avoid income taxes, not to avoid local prosecution for gambling. Rather persuasive is the argument that no other motive could have prompted the defendants to falsely deny to Government investigators the ownership of the houses. For it is hardly conceivable that individuals would falsely subject themselves to income tax liability if the conspiracy was not to evade the income tax of the large taxpayer. The jury was justified in assuming that the crux of this case turned' on the- answer to the question, To whom did the gambling houses belong and who was entitled to the income from their operations ?
If these houses belonged to Johnson and he was entitled to the income and he excluded such income from his income tax returns and other defendants included such income as part of their returns when it was not in fact their income, then the crimes charged in the indictment were established. Of this there can be no doubt.
The proof of the ownership of the property, as well as the income, was not even circumstantial in character. It was direct and positive. Defendants’ only hope of escaping from its telling effect was to show the testimony of the Government.witnesses to be false. This they endeavored to do. Apparently the jury disbelieved their witnesses and accepted the testimony of the Government witnesses. Reduced to its last analysis, this issue determined the merits of the case. We have been favored with instructive briefs. A clearer case for the jury could hardly be presented.
There are many other assignments of error. The tidal was long and the questioned rulings are numerous. The trial court’s refusal to instruct the jury as requested; its rulings on admission and rejection of evidence; its participation in the examination of witnesses — all come in for criticism and challenge.
In short, it is earnestly argued that the defendants were not given a fair trial.
The case was one which necessitated great care to prevent, if possible, the prejudice which jurors might naturally entertain against individuals who admitted they had long been, and were professional gamblers operating on a big scale, from affecting their deliberations of the charges stated in the indictment and which did not involve crimes arising out of their gambling operations.
Defendants were entitled to a fair trial on the charges preferred against them. Their guilt of offenses not charged in the indictment had no bearing (save as it may have affected credibility) on the charges set up in the indictment. In order that our judicial system and practice in criminal cases be vindicated, the utmost care is required so that no ruling or comment by the court take place which would have the effect of communicating to the jury an impression that the court was unfavorable to defendants.
In view of the fact that the case is to be reversed according to the majority opinion, I call attention merely to one comment of the trial judge to show its fairness.
The court said:
“You must not permit the kind of business in which the defendants were engaged to prejudice you against them or any of them. The fact, if it be a fact, that some defendant or defendants committed some offense against the laws of the United States or the State of Illinois other than those charged in the indictment creates no presumption that such defendant or defendants committed the offense here charged against him or them.”
The language speaks for itself. It was clear, explicit and positive. Defendants could not ask for more. Their requests *141 may have been more wordy and more argumentative, but they did not 'better state the law than the foregoing instruction.
It was not necessary that the trial court give instructions in the language of defendants’ counsel, provided the substance of this proposed charge was clearly and fairly stated. The charge is often better when couched in the language of the judge for it is fairer and less argumentative and prejudicial.
There are two different theories or conceptions of trials in criminal cases. I am speaking of trials in criminal cases in general — in the abstract, not referring now to the instant case. The one which appeals to me as the better one views the trial as a means of ascertaining a fact, — that fact being the guilt or innocence of the accused.
Rules governing such trials favor the accused. This policy of favoring the accused is the result of generations of experience. It has, for its background the concept of making certain that no innocent person shall be convicted, — that it is better that many who are guilty be acquitted than one innocent person be convicted. The rules which ordinarily accomplish this result are too well known to require restatement.— Except for them, a fair trial in a criminal case is quite similar to that in a civil case. In both cases, it should be a search, through competent and relevant evidence of the best nature, for the truth.
On one side is society seeking to protect itself and restrain the violator from stepping outside the law to enrich himself or to accomplish a selfish end at the expense of others. On the other side is the accused, in whose favor presumptions are created to protect him in the enjoyment of his liberty and in his reputation as one of a society of law-abiding citizens.
Although the personal element will always be more pronounced in a criminal case than in a civil suit, the controversy should, in the last analysis, be simply an honest inquiry into the accused’s guilt or innocence.
The other theory of a trial in a criminal case is entertained by members of the bar engaged chiefly in handling criminal cases. To them it is a fencing contest between counsel, where the real issue of fact, to-wit, the guilt or innocence of defendant is lost in the heat of the duel between opposing counsel. The sole effort is to inject error into the trial. The longer the trial the better the chance of error. Hence a jury trial is demanded for the opportunities of injecting error are thereby multiplied. And every erroneous ruling is presumptively, prejudicial.
This theory finds some support in early judicial precedents. Such holdings rise to dominant importance, if only they be in point.- — And that is so regardless of their vintage or the absence of sound reason to support them. In this view all later cases ignoring or inferentially overruling such earlier precedents, are brushed aside as out of harmony with the rule which gives the accused, the benefit of all doubts. This view necessitates the rejection of reason and all growth, change, or development of the law in the field of criminal trials.
Admittedly this view makes for excitement and uncertainty in criminal cases, emphasizes the emotional side of all participating therein, and gives to the public— particularly the curious public, an opportunity for a thrill. In my opinion it is not promotive of justice, places a premium on long trials, adds to the expense, encourages questionable practices and often brings the administration of justice into disrepute with law-respecting and the law-abiding citizen.
A jury trial is demanded, not because of greater faith in the jury’s ability to ascertain the truth, but because jurors are often more easily confused by a long trial and errors are more likely in a long jury trial.
Stipulations of facts are never made, not because the facts are uncertain or unknown, but because some technical error may occur in the introduction of their proof, or the prosecution may have difficulty in securing the attendance of all its witnesses at one time. A pretrial conference is never held because the court is powerless to call one. There is no effort, as in a civil case to confine the trial to the controverted issues. In short, the protection of society against the raids of its transgressors is overlooked or forgotten, and the decision goes according to the technical rules of the fencing contest.
It seems to me that the holding of the majority of the court is a vindication of the second theory above referred to. No prejudice to defendants is shown. A fairly drawn grand jury presented a charge and a trial with conviction, occurred. Not merely is there a reversal, but reversal with a resulting dismissal. And this is because a grand jury obtained an order for its continuance so as to complete its investigation. Because perchance, its investigation may *142 have exceeded the crimes uncovered at its first term’s study, its authority to act in any and all respects is lost.
On the entire record I am convinced that there was no prejudicial error committed, and that the judgments should be affirmed. In view of the length of this opinion, and also because the case must be dismissed, I will not discuss the alleged error in admitting evidence which showed the operation of a large, modern Chicago gambling house.
Attempt to evade 1936, 1937, and 1938 taxes.
Attempt to evade 1939 taxes, and conspiracy count.
Tjongsdorf, Cyclopedia of Federal Procedure, Sec. 2132, 2185.
Jelke v. United States, 7 Cir., 255 F. 264 , 274:
“Decisions that reject technical objections to criminal indictments are not now the exception, and an overwhelming array of authorities may be found that call for liberal construction of criminal pleadings fCiting many cases.] * * *
“While perhaps instructive, we are convinced that many of the criticisms made are hypercritical and evidence scholastic ingenuity, but if adopted in this case, or 'applied to the average indictment, ‘would rightly bring odium upon the administration of justice in the minds of all sensible people, whether learned in the law or not.’ ”
In Hewitt v. United States, 110 F.2d 1, 5 , the Eighth Circuit said (quoting the Supreme Court in part Hagner v. U. S., 285 U.S. 427 , 52 S.Ct. 417 , 76 L.Ed. 861 ) :
“ ‘The rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will he disregarded. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” * * *
“ ‘This section was enacted to the end that, while tile accused must be afforded full protection, the guilty shall not escape through mere imperfections of pleading.’ * * *
“The sufficiency of an indictment should be judged by practical, and not by technical, considerations. It is nothing but the formal charge upon which an accused is brought to trial. An indictment which fairly informs the accused of the charge which he is required to meet and which is sufficiently specific to avoid the danger of his again being prosecuted for the same offense should be held good.”
The Fifth Circuit said, in Hartwell v. United States, 107 F.2d 359, 362 ,
“While it is certainly true that a valid indictment cannot be dispensed with as a predicate to conviction where an indictment is necessary * * * it is also true that the practice of fine combing indictments for verbal and technical omissions is no longer countenanced in the courts, and that a substantial compliance with the purpose of an indictment to acquaint the defendant with the offense of which he stands charged, so that he can prepare his defense and protect himself against double jeopardy, is sufficient.”
In Howell v. United States, 296 F. 911, 912 , the Fifth Circuit said:
“It thus appears that it is an offense for a dealer to fail to register and to pay the special tax, and that it is another and separate offense for any person to purchase or sell. derivatives of opium or cocoa leaves, such as * * *, except in or from the packages to which the tax-paid stamps are attached.
“Eaeh of the offenses above named should be charged in separate counts of an indictment, because they are separate. That part of the indictment which charges that the defendant as a dealer was required to register, and that he unlawfully dealt in the prohibited drugs, does not charge that he failed to register. The indictment, therefore, does not charge one of the two offenses, and it follows that the language just referred to is surplusage. But the indictment does charge that the defendant was a dealer, and dealt in and had in his possession narcotics to which the stamps evidencing the payment of the internal revenue tax were not attached. It therefore sufficiently charges the second of the offenses above mentioned. The form of the indictment is imperfect, but in our opinion it is sufficient to uphold a conviction of the defendant as a dealer, for the reason that the attempt to charge the failure to register was not successful.”
In Ray v. Commonwealth of Kentucky, 230 Ky. 656 , 20 S.W.2d 484, 486 , 66 A.L.R. 1297 , the Kentucky Court of Appeals said,
“The effort to charge appellant as an aider and abettor, after charging him and Gagnon as principals, and without setting out the charge of aiding and abetting in a separate count, does not render the indictment as a whole defective [the indictment was in one paragraph], * * * In Watkins v. Com., 227 Ky. 100 , 12 S.W.2d 329 , an indictment for murder, charging two defendants as principals and as aiders and abettors in a single count, was held sufficient.”
27 American Jurisprudence, Indictments and Informations, § 126, page 686:
“Although at common law different grades of the same offense cannot be included in the same count, it is now the generally approved practice to allow the different grades of the same offense to be thus joined, as also an offense or offenses included in the principal crime charged, although it is the more usual practice to set up the several grades or degrees in different counts. An indictment against two persons which charges both as principals and later in the same count charges the accused alone with aiding and abetting in the commission of the offense, is not defective for not stating the latter charge in a separate count.”
In Kitrell v. United States, 10 Cir., 76 F.2d 333, 334 , the court said:
“It is said that each [count] is bad for duplicity in that each charges an attempt to defeat and evade the tax and a failure to make a return, and that the only method of tax evasion charged is the failure to make return. But the third count does not charge * * * Nor can it be maintained that either of the counts is duplicitous. The questions thus raised seem to now be authoritatively settled against appellant’s contention.”
The Court, in Connors v. United States, 158 U.S. 408, 410 , 15 S.Ct. 951, 952 , 39 L.Ed. 1033 , said:
“The first assignment of error questions the sufficiency of the indictment in that it charges the accused, as he insists, with three distinct offenses in one count, namely: With having unlawfully and with force and arms seized, carried away, and secreted the ballot box; * * * with having aided and assisted in the forcible and unlawful seizure, *135 * * * and with having counselled, advised, and procured the seizure. * * *
“This objection to the indictment is not well taken. The offense charged was that of unlawful interfering with the officers of the election in the discharge of their duties. * * * The verdict of guilt had reference to that crime, whether committed in one or the other of the modes specified in the indictment. Undoubtedly, it was in the discretion of the court to compel the prosecutor to state whether he would proceed against the accused for having himself seized, carried away, and secreted the ballot box, or for having assisted or procured others to do so. But there was no motion * * * to make such a statement * * * nor, if made by demurrer or by motion, and overruled, would it avail on error unless it appeared that the substantial rights of the accused were prejudiced by the refusal of the court to require a more restricted or specific statement of the particular mode in which the offense charged was committed. * * * There is no ground whatever to suppose that the accused was taken by surprise in the progress of the trial, or that he was in doubt as to what was the precise offense with which he was charged. * * * ”
Crain v. United States, 162 U.S. 625, 636 , 16 S.Ct. 952, 955 , 40 L.Ed. 1097 . The Supreme Court said:
“We are of opinion that the objection to the second count upon the ground of duplicity was properly overruled. The evil that congress intended to reach was the obtaining of money from the United States by means of fraudulent deeds, powers of attorneys, orders, certificates [etc.] * * * The statute was directed against certain defined modes for accomplishing a general object, and declared that the doing of either one of several specific things, each having reference to that object, should be punished by imprisonment. * * * We perceive no sound reason why the doing of the prohibited thing in each and all of the prohibited modes may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute. And this is a view altogether favorable to an accused who pleads not guilty to the charge contained in a single count, for a judgment on a general verdict of guilty upon that count will be a bar to any further prosecution in respect of any of the matters embraced by it.”
In Skelly v. United States, 76 F.2d 483, 487 , the Tenth Circuit held
“The acts of a principal to a substantive offense and the acts of an accessory after the fact thereto, are one continuous criminal transaction. At common law the principal and accessory after the fact may be jointly indicted and where so indicted they should be charged in one count * * *. Therefore the acts of the two constitute a single offense committed by them jointly, one acting as principal and the other as accessory after the fact.”
United States v. Leche, D.C., 34 F. Supp. 982 , affirmed, 5 Cir., 118 F.2d 246 ; Silkworth v. United States, 2 Cir., 10 F. 2d 711 ; United States v. Fero, D.C., 18 F. 901 ; Rowan v. United States, 5 Cir., 281 F. 137 ; Egan v. United States, 52 App.D.C. 384 , 287 F. 958 ; Greenbaum v. United States, 9 Cir., 80 F.2d 113 ; Kurezak v. United States, 6 Cir., 14 F.2d 109 ; United States v. Otto, 2 Cir., 54 F.2d 277 ; Jacobsen v. United States, 7 Cir., 272 F. 399 ; Connors v. United States, 158 U.S. 408 , 15 S.Ct. 951 , 39 L.Ed. 1033 .
Capone v. United States, 7 Cir., 56 F.2d 927 ; Sondericker v. United States, 7 Cir., 41 F.2d 144 , see also, Meyer v. United States, 7 Cir., 258 F. 212 ; Johnson v. Biddle, 8 Cir., 12 F.2d 366 ; Farley v. United States, 9 Cir., 269 F. 721 ; Sugar v. United States, 6 Cir., 252 F. 74, 75 ; United States v. Socony Oil Co., 310 U.S. 150 , 60 S.Ct. 811 , 84 L.Ed. 1129 .
United States v. Meyering, 7 Cir., 54 F.2d 621 .
Clayton v. United States, 4 Cir., 284 F. 537 ; Morgan v. United States, 8 Cir., 148 F. 189 ; United States v. Rogers, D.C., 226 F. 512 .
Morgan v. United States, 8 Cir., 148 F. 189 ; Bailey v. United States, 6 Cir., 278 F. 849 ; Lewellen v. United States, 8 Cir., 223 F. 18 ; Nudelman v. United States, 9 Cir., 264 F. 942 ; Wetzel v. United States, 9 Cir., 233 F. 984 ; Sparks v. United States, 6 Cir., 90 F.2d 61 ; Clayton v. United States, 4 Cir., 284 F. 537 .
Neu v. United States, 7 Cir., 10 F.2d 146 ; Hawkins v. United States, 7 Cir., 14 F.2d 596 ; Reuben v. United States, 7 Cir., 86 F.2d 464 ; Aczel v. United States, 7 Cir., 232 F. 652, 653 ; Greenburg v. United States, 7 Cir., 253 F. 728 ; Taylor v. United States, 7 Cir., 2 F.2d 444 ; Clifton v. United States, 45 U.S. 242 , 4 How. 242 , 11 L.Ed. 957 ; Claassen v. United States, 142 U.S. 140 , 12 S.Ct. 169 , 35 L.Ed. 966 ; Powers v. United States, 223 U.S. 303 , 32 S.Ct. 281 , 56 L.Ed. 448 ; United States v. Trenton Potteries, 273 U.S. 392 , 47 S.Ct. 377 , 71 L.Ed. 700 .
In Lewellen v. United States, 8 Cir., 223 F. 18, 20 , the court said:
“It is probable that the United States attorney * * * was either uncertain about the law or the facts of the ease, and attempted to make averments in one count charging both offenses. This was not permissible; but as there was no special demurrer for duplicity or other attack upon tho indictment, and as the trial judge instructed the jury concerning the law governing the second mentioned offense only, namely, the carrying of liquor from without the state into the Indian Territory, and as under that charge the defendant was found guilty ‘as charged in the indictment’ and sentenced accordingly, this court will treat the indictment in the same way, as charging a violation of the offense denounced by the Act of 1895 only.”
In Wiborg v. United States, 163 U.S. 632 , 16 S.Ct. 1127, 1133 , 41 L.Ed. 289 , the Court said:
“Defendants’ counsel did not seek to compel an election, nor in any manner by their motion to arrest or otherwise, to raise the question of duplicity, nor do they now make objections to the proceedings on this ground. The district judge instructed the jury that the evidence would not justify a conviction ‘of anything more than providing the means for aiding such military expedition by furnishing transportation for their men * * *.’ Under these circumstances, the verdict cannot be disturbed on the ground that more than one offense was included in the same count of the indictment, but it must be confined to the offense to which the jury were confined by the court.”
Refusal of trial courts to direct an election of offenses charged has been held to be non-prejudicial where but one sentence was imposed. Nudelman v. United States, 9 Cir., 264 F. 942 ; Wetzel v. United States, 9 Cir., 233 F. 984 .
Tinkoff v. United States, 7 Cir., 86 F.2d 868 ; Capone v. United States, 7 Cir., 56 F.2d 927 ; Yip Wah v. United States, 9 Cir., 8 F.2d 478 ; Rowan v. United States, 5 Cir., 281 F. 137 ; Jelke v. United States, 7 Cir., 255 P. 264 ; Peck v. United States, 7 Cir., 65 F.2d 59 ; Chiaravalloti v. United States, 7 Cir., 60 F.2d 192 ; Guzik v. United States, 7 *138 Cir., 54 F.2d 618 ; Wygant v. United States, 9 Cir., 6 F.2d 148 ; Pounds v. United States, 171 U.S. 35 , 18 S.Ct. 729 , 43 L.Ed. 62 ; Ledbetter v. U. S. 170 U. S. 606 , 18 S.Ct. 774 , 42 L.Ed. 1162 .
On the “usurping of the province of the jury” Wigmore states, § 673:
“This being the plain, logical, and necessary reason for the use of the hypothetical question, it will easily be seen that it is not resorted to from any fear that the witness will ‘usurp the function of the jury.’ This bugbear, vigorously denounced with' sentimental appeals to the value of jury trial, has been made to serve again and again as the dreadful source of those evils which the hypothetical question enables us to avoid. But the expert is not trying to usurp that function, and could not if he would. He is not trying to usurp it, because his error, if any, is merely the common one of witnesses, that of presenting as knowledge what is really not knowledge. And he could not usurp it if he would, because the jury may still reject his testimony and accept his opponent’s, and no legal power, not even the judge’s order, can compel them to accept the witness’ statement against their will. * * * The ‘usurpation’ theory *■ * has done much to befog bench and bar, and to assist in producing some of the confusion which attends the precedents.”
Wigmore, See. 675. “But does it follow that, when the opinion comes from the same witness who has received the basis of it by actual observation, those premises must be stated beforehand, hypothetically or otherwise, by him or to him? For example, the physician is asked, ‘Did you examine the body?’; ‘Yes’; ‘State your opinion of the cause of death.’ Is it here necessary that he should first state in detail the facts of his personal observation, as promises, before he can give his opinion?
“In academic nicety, yes; practically, no; and for the simple reason that either on direct examination or on cross-examination each and every detail of the appearance he observed will be brought out and thus associated with his general conclusion as the grounds for it, and the tribunal will understand that the rejections of these data will destroy the validity of his opinion.
“Through failure to perceive this limitation, Courts have sometimes sanctioned the requirement of an advance hypothetical statement even where the expert witness speaks from personal observation. * * But this fallacy of being too unpractical in forcing the logic of the theory is generally and properly repudiated.”