Petition for a Writ of Certiorari — Ladrey v. United States

=I_E COPY ey

JUN 27 1945

J CHARLES ELaoRe ones

SUPREME COURT OF THE UNITED STATES 4

OCTOBER TERM, 1946

No. 236

HENRY M. LADREY anv EVA W. LADREY,

Petitioners,

vs.

THE UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA.

James R. Kirkianp,

Rosert I. Mixer,

JosepH A. McMenamin,

Counsel for Petitioners.

INDEX

Petition for writ of certiorari.....................

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SOM, 5. Biv ks SR Siig Evens nan een eds

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Specification of errors to be urged.............

Reasons for granting the writ................

1. The Court erred in refusing to direct a

verdict of not guilty as to the defendant

Henry M. Ladrey at the conclusion of

the government’s case and at the end of

Te ee eee

2. The Court erred in allowing into evidence

testimony concerning other offenses for

wl-ch the defendants were not on trial.

3. The Court erred in permitting govern-

ment witnesses to testify to alleged

statements made by the defendant, Eva

W. Ladrey, out of the presence of the

co-defendant, Henry M. Ladrey.......

4. The Court erred in allowing improper

argument to the jury by the Assistant

United States Attorney prosecuting the

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TaBLe or CasEs CITED

American Fur Company v. United States, 2 Pet. 358.

Berger v. United States, 295 U.S. 78..............

Dyar v. United States, 186 F. 617 .................

Fuguay v. State, 114 So. 892, 22 Ala. App. 1264......

Gerson v. Uniied States, 25 F. (2d) 49.............

Itaw v. United States, 223 Fed. 25.................

Kirkwood v. United States, 256 Fed. 825 ...........

Kassin v. United States, 87 F. (2d) 183............

—5399

wiolwicelwtele

10

13

ii INDEX

Laughlin v. United States, 67 App. D. C. 353........

Lomaz v. United States, 37 App. D. C. 414..........

Martin v. United States, 75 U.S. App. D. C. 399... ..

Minner v. United States, 57 F. (2d) 506............

O’Brien v. United States, 299 Fed. 568 .............

Ryan v. United States, 26 App. D. C. 74............

Silverberg v. United States, 4 F. (2d) 908..........

Sleight v. United States, 65 App. D. C. 203..........

Spalitto v. United States, 39 F. (2d) 782............

State v. Poplowski, 133 A. 671, 104 Conn. 493........

Taliferro v. United States, 213 F. 25 ..............

Tresca v. United States, 183 Fed. 786..............

Turinette v. United States, 2 F. (2d) 15............

United States v. Gunnell, 5 Mackey (16 D.C.) 196...

Vernon v. United States, 146 Fed. 121..............

Wiborg v. United States, 163 U.S. 632.............

Witters v. United States, 70 App. D. C. 316........

Statutes CiTep

eB BRE errr

Sec. 240 A, Judicial Code as amended..............

Sec. 269, Judicial Code as amended................

| gence

SUPHEME COURT OF THE UNITED STATES

OCTOBER TERM, 1946

No. 236

} HENRY M. LADREY anv EVA W. LADREY,

on Petitioners,

THE UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA.

The petitioners, Henry M. and Eva W. Ladrey, pray that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the District of Colum-

bia entered May 20, 1946 (R. 71), affirming petitioners’ con-

viction for bribery under Title 22, Section 701, in the D. C,

Code (1940).

Opinion Below

The opinion in the Court of Appeals is not yet reported

but is set out in full in the Record at page 70.

Jurisdiction

The jurisdiction of this Court is invoked under Section

240 A of the Judicial Code as Amended by the Act of Feb-

ruary 13, 1925 (28 U.S. C. A. 347) and Sec. 269, as amended

ee |

(28 U. S. C. A., See. 391). See also Rules XI and XIII of

the Criminal Appeals Rules promulgated by this Court

May 7, 1934.

2

Questions Presented

1. The Court erred in refusing to direct a verdict of not

guilty as to the defendant, Henry M. Ladrey, at the con-

clusion of the government’s case and at the end of the whole

case.

2. The Court erred in admitting testimony concerning

other offenses for which the defendants were not on trial.

3. The Court erred in permitting a government witness

to testify to alleged statements made by the defendant, Eva

W. Ladrey, out of the presence of the co-defendant, Henry

M. Ladrey.

4. The court erred in allowing improper argument to the

jury by the Assistant United States Attorney prosecuting

the case.

Statute Involved

The pertinent provisions of Title 22, Section 701, D. C.

Code (1940) are as follows:

‘‘Whoever promises, offers, or gives or causes or

procures to be promised, offered, or given, any money

or other thing of value, or makes or tenders any con- |

tract, undertaking, obligation, credit, or security for {

the payment of money, or for the delivery or convey- |

ance of anything of value, to any executive, judicial, or

other officer, or to any person acting in any official func-

tion, or to any juror or witness, with intent to influence

the decision, action, verdict, or evidence of any such

person on any question, matter, cause, or proceeding or

with intent to influence him to commit or aid in commit-

ting, or to collude in or allow any fraud, or make any

opportunity for the commission of any fraud, shall be

fined not more than five hundred dollars, or be im-

oe

3

prisoned not more than three years, or both.”” (Mar.

3, 1901, 31 Stat. 1330, ch. 854, Title 861).

Statement

Dr. Henry M. Ladrey, a physician, engaged in the private

practice of medicine in the District of Columbia, and his

wife, Eva W. Ladrey, a government employee working in

the Department of Justice, were indicted, tried and con-

victed of bribery. A motion for a new trial was filed and

argued but was denied by the Trial Justice. Thereupon,

the said defendants were sentenced to serve one to three

years, execution suspended and they were placed on pro-

bation. From this judgment they appealed.

The testimony in the trial showed that one Hazel Queenan

had been the complaining witness in an abortion case then

pending against the appellant Henry M. Ladrey. (R. 3, 10).

This fact was stipulated by counsel for both sides and upon

said stipulation the indictment in the pending abortion was

admitted into evidence. The said indictment showed on its

face that Hazel Queenan was the complaining witness in

that case. On January 7, 1944, the appellant, Eva W.

Ladrey was arrested in the home of Hazel Queenan, after

allegedly attempting to induce the said Hazel Queenan to

withdraw the charges against her husband, Dr. Ladrey,

and leave town. Appellant, Dr. Henry M. Ladrey, was not

with his wife at the time of her arrest. As the detectives

rode around the neighborhood they found appellant, Dr.

Henry M. Ladrey, standing by his car in conversation with

a taxidriver. There was evidence that the taxi had collided

with the doctor’s automobile (R. 33, 40). There was some

testimony that appellant Dr. Ladrey had driven his wife

to the vicinity of Hazel Queenan’s house on the evening in

question, but this was denied by the appellant Dr. Ladrey.

There was no evidence by either side that appellant Dr.

Se

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4

Ladrey knew where his wife was going at that time or what

she was going to do and he denied that he had any knowl-

edge or intent to aid, abet, or engage in any bribery.

When Hazel Queenan was on the witness stand she was

permitted to testify in detail to all of the alleged actions of

the appellant Dr. Ladrey in performing an abortion upon

her. The trial court permitted this testimony on the theory

that it was necessary for the government to show that the

said Hazel Queenan was a ‘‘material’’ witness in the pend-

ing abortion case, even though it had already been stipu-

lated previously and admitted as a fact in evidence that

she was a witness in that case, and the indictment in said

case, showing her name thereon as the complaining witness,

was in evidence and had been read to the jury (R. 3, 4, 5, 6).

The prosecutor in his argument to the jury, in comment-

ing upon the character testimeay adduced in behalf of the

appellants, mentioned certain ‘‘bankers’’ who had been

apprehended several years ago who were supposed to be

of good character. This had nothing to do with any of the

evidence in the bribery case. Counsel for appellants

objected to the improper argument and asked that a mis-

trial be declared, but the motion was denied. Counsel also

made a motion at the end of the government’s case, and

again at the conclusion of the whole case, for a directed

verdict of not guilty in behalf of the appellant, Dr. Ladrey,

on the grounds that there was no evidence that said appel-

lant had any guilty knowledge or guilty intent of the alleged

bribery. These motions were also denied.

Specification of Errors to Be Urged

I

There was no evidence in the government’s case and no

evidence in the whole case that the defendant, Henry M.

Ladrey, had anything to do with the alleged crime. The

5

only circumstance against him was the disputed testimony

that he transported the co-defendant, Eva W. Ladrey, to

or near the scene of the alleged offense. The trial court

erred in refusing to direct a verdict of not guilty as to the

defendant, Henry M. Ladrey, because in order to impute

the necessary elements of knowledge and intent the jury

would have to draw an inference from an inference, which

would be speculation and not allowed according to law.

II

During the trial the court permitted the prosecuting wit-

ness to testify in great detail concerning an alleged act of

abortion for which the defendants were not then on trial,

the instant charge being bribery of the said complaining

witness. Such testimony in detail was totally unnecessary

because counsel for both sides had previously entered into

a stipulation acknowledging as a fact that the complaining

witness in the bribery case was also the complaining wit-

ness in the alleged abortion case and the indictment of

that case was admitted into evidence.

III

Government witnesses were allowed to testify that the

defendant, Eva W. Ladrey, made certain statements out

of the presence of the co-defendant, Henry M. Ladrey; said

statements being hearsay so far as Henry M. Ladrey was

concerned and could be admissible only against Eva W.

Ladrey.

IV

The prosecuting attorney was permitted to argue to the

jury about matters that had no bearing whatever to the

facts of the case on trial and could not have any effect ex-

cept to unduly influence the minds of the jury against the

defendants,

er res oA PORES AEE ET ENB ETS BR mee i .

6

Reasons for Granting the Writ

The Court erred in refusing to direct a verdict of not

guilty as to the defendant Henry W. Ladrey at the

conclusion of the government’s case and at the end

of the whole case.

The only evidence in the whole case concerning the de-

fendant, Henry M. Ladrey, was testimony that he had

taken the co-defendant in his automobile to, or near the

home of the complaining witness on the night in question.

There was no other evidence whatever connecting him with

the alleged bribery. The appellant, Henry M. Ladrey, con-

tends that this meager testimony is not sufficient to sustain

a conviction against him because there was no proof that

he had any knowledge that the co-defendant was going to

the home of the complaining witness to offer her a bribe, and

further, there was no proof that he had any intent to join

in, engage in, aid or abet in the alleged enterprise. In

fact, all of the evidence was that he did not know where

his wife, the co-defendant, was going or what she was going

to do (R. 20, 23, 31, 32).

The trial court insisted that the jury should be allowed

to draw inferences from the disputed fact that because

Henry M. Ladrey drove his wife to the scene, he had both

knowledge and intent to join in the alleged crime. Knowl-

edge and intent are not the same thing. Knowledge is

‘‘information as to a fact; the act of knowing; clear per-

ception of the truth; firm belief; information.’’ Intent

is ‘‘the design, resolve or determination with which a per-

son acts.” Watters v. United States, 70 App. D. C. 316,

319 (1939).

If it were a conceded fact that Dr. Ladrey drove Mrs.

Ladrey to the scene (the point was denied by Dr. Ladrey

on the stand R. 33), in order to convict him the jury would

—

7

have to derive the following inferences from that cireum-

stance:

a. That he knew where she was going.

b. That he knew why she was going there.

ce. That he did not object to her going.

d. That he took her there for the purpose of offering

a bribe.

Thus it can be seen that it was necessary for the jury to

draw four different inferences from one circumstance, the

first two pertaining to guilty knowledge and the latter two

pointing to guilty intent. It is urged that the latter two

inferences could not be logically drawn unless the former

two were established as a proved fact. But the former

two, namely, those concerning guilty knowledge, are not

proven facts, but are inferences themselves, to be derived

from a circumstance. Hence we have an inference based

upon an inference, which the law does not allow.

Inferences and deductions which the jury may be per-

mitted to draw must be based upon some substantial evi-

dence tending to establish the guilt of the defendant.

Otherwise to permit the jury to convict upon inferences

and deductions would merely mean to permit the jury to

speculate as to the guilt of the defendant. This sort of

procedure the courts uniformly condemn. Sleight v. United

States, 65 App. D. C. 203.

In order to warrant a conviction on circumstantial evi-

dence, it is necessary to prove the circumstantial facts and

there must be no uncertainty as to the facts from which the

controlling inferences are to be drawn. Such facts must

be proved by direct evidence. Circumstantial evidence

from which an inference of this existence may be drawn

by the jury is not sufficient, and one presumption of fact

cannot be based on another, There cannot be an inference

derived from an inference. Spalitio v. United Sictes, 39

F. (2) 782. While natural inferences can be drawn from

circumstances to prove guilt, such inferences cannot be sub-

stituted for the circumstances themselves. Gerson v.

United States, 25 F. (2) 49.

In the instant case there was uncontroverted evidence

that Dr. Ladrey was engaged in treating a patient in the

same neighborhood as the home of the complaining witness

(R. 33, 39, 44, 45, 59, 60) at approximately the same time

that the detectives arrested his wife at the house of the

complaining witness. There was also evidence that after

treating the patient, a Mrs. Long, he had an automobile ac-

cident in the nearby vicinity and was engaged in conversa-

tion with the driver of the other vehicle when the detectives

came up to him in the street (R. 33, 40). His treating a

patient is a reasonable explanation for his presence in the

neighborhood at the time and bears strongly on the hy-

pothesis of innocence. There was no direct evidence that

he knew where his wife was or what she was doing at that

time, much less any direct evidence that he knew his wife

was going to the home of the complaining witness or that

she was going there for the purpose of offering a bribe.

Circumstantial evidence may warrant a conviction in a

criminal case provided it is such as to exclude every reason-

able hypothesis but that of guilt of the offense imputed

to the defendant; or, in other words, the facts proved must

all be consistent with and point to his guilt only and be

inconsistent with his innocence. The hypothesis of guilt

should flow naturally from the facts proved and be con-

sistent with them all. If the evidence can be reconciled

either with the theory of innocence or of guilt, she law

requires that the defendant be given the benefit of the

doubt and that the theory of innocence be adopted. Vernon

v. United States, 146 F. 121; Kirkwood v. United States

256 F. 825.

ae

In the instant case there was no probative evidence to

be submitted to the jury concerning the defendant Dr.

Henry M. Ladrey. There was merely evidence that he

drove his wife to a certain place. At best this could only

prove that he did drive her there and nothing else. There

was also evidence that he treated a patient at afyeeeny

the same time in the immediate vicinity.

Whenever a circumstance relied on as evidence of eviminal

guilt is susceptible of two inferences, one of which is in

favor of innocence, such circumstance is robbed of all

probative value, even though from the other inference,

guilt may be fairly deductible. Mere suspicion is not

sufficient on which to base a conviction. Turinette v. United

States, 2 F. (2) 15, 17. Evidence creating a mere proba-

bility of guilt is not sufficient to sustain a conviction; much

less is evidence which gives rise to a mere suspicion or con-

jecture of guilt. Kassin v. United States, 87 F. (2) 183.

Even if the testimony had shown that Dr. Ladrey knew

that his wife was going to bribe the complaining witness

(although such testimony was not adduced at any part of

the trial) it still would not have been any proof that he

approved of his wife’s actions or had any control over them,

or that he intended to willingly aid her in them. It has

been held that evidence, which at the most showed only

that a defendant associated with a codefendant convicted

of the crime, and that he had knowledge that a crime was

to be, or had been, committed, was insufficient to sustain a

conviction. O’Brien v. United States, 299 F. 568.

Both knowledge and intent are separate essential

elements of this crime, which must be proved in order to

sustain a conviction against the defendant Dr. Henry M.

Ladrey. But Dr. Ladrey denied both knowledge and intent

immediately upon his arrest, as shown by the testimony of

the government’s own witnesses (R. 20, 23), and he also

wm aae te er nee nen oe . LAE eRe CNRS SE Ee TOONS

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10

reiterated his denial of both knowledge and intent when he

took the stand in his own behalf (R. 40, 41, 42).

Facts cannot be proved by a circumstance merely consistent

with their existence. Fuguay v. State, 114 So. 892, 22 Ala.

App. 1264. Nor can facts be established by not believing

witnesses who deny them. State v. Poplowski, 133 A. 671,

104 Conn. 493.

The trial court denied a motion for a directed verdict

made by counsel in behalf of the defendant Dr. Henry M.

Ladrey at the conclusion of the government’s case. This

motion was renewed at the end of the whole case and was

again denied. It is respectfully urged that prejudicial

error occurred in allowing the case of the defendant Henry

M. Ladrey to be submitted to the jury without sufficient

proof, but merely on speculation and conjecture.

Ii

The Court Erred in Allowing into Evidence Testi-

mony Concerning Other Offenses for which the Defend-

ants Were Not on Trial.

At the beginning of the trial, counsel for the appellants,

defendants below, entered into a stipulation with the prose-

cuting attorney, whereby it was admitted into evidence that

an indictment, the original document of which was produced

in open court, was then pending against the defendant,

Dr. Henry M. Ladrey, charging him with having performed

an abortion against the complaining witness, Hazel Queenan.

It was also stipulated that the said Hazel Queenan was a

witness in the abortion case still pending. (R. 3, 4, 5).

The appellants contend that this stipulation was sufficient

for the government to proceed with the trial of the instant

ease, charging bribery of the said complaining witness,

Hazel Queenan, because the stipulation established as a

il

fact that the said Hazel Queenan was a witness in a case

that was still pending. Under the wording of the bribery

statute (D. C. Code (1940), 22-701) this was all that was

necessary to be proved by the government to establish that

phase of their case. Nevertheless, the trial court permitted

the prosecutor to interrogate the witness Hazel Queenan

on the stand, concerning all of the details of the alleged

abortion, in spite of the fact that it was already admitted

and made part of the evidence that she was a witness in

the other case. (R. 4, 5).

It is a well-established principle of law that upon the

trial of an indictment, charging a specific crime against

the accused, it is not competent for the prosecution to put

in evidence proof tending solely to show that the defendant

had been guilty of other offenses. Laughlin v. United

States, 67 App. D. C. 353; Ryan v. United States, 26 App.

D. C. 74.

It is admitted that there are exceptions to this gen-

eral rule, which, according to the decisions, are:

When the evidence of other crimes tend to establish (1)

motive; (2) intent; (3) the absence of mistake or accident;

(4) a common scheme or plan; (5) the identity of the person

charged. People v. Molineauz, 168 N. Y. 264, 61 N. E. 286;

Martin v. United States, 75 U.S. App. D. C. 399.

The detailed testimony related on the stand in the instant

case by the witness Hazel Queenan (R. 10, 11, 12) concern-

ing the placing of her upon a certain table in the doctor’s

office, the use of certain instruments upon her person, her

subsequent illness and her admission to a hospital for treat-

ment, had no bearing whatever upon the charge of bribery,

for which the defendants were on trial. Such detailed state-

ments of the witness could only have tended to humiliate

and disgrace the defendant Dr. Henry M. Ladrey and his

Re Ah On Ue eee

12

wife, the co-defendant, Eva W. Ladrey; the testimony was

not necessary to the inquiry on hand, and was likely to

create an adverse and prejudicial feeling against the de-

fendants in the minds of the jury. Silverberg v. United

States 4 F. (2) 908, 909; Dyar v. United States, 186 F.

617; Taliaferro v. United States 213 F. 25.

At another part of the trial a different witness, one Edgar

E. Scott, was permitted to touch upon the pending abortion

case in his testimony (R. 25, 26). It is contended that

this was also improper because it may have had a cumu-

lative prejudicial effect against the defendants in the minds

of the jury.

The trial court insisted that the reason it was permissible

for the government to bring out the details of the abortion

case from the witness, Hazel Queenan, was because it was

necessary for the government to show that she, the said

Hazel Queenan, was a ‘‘material witness’’ in the pending

abortion case. The wording of the statute does not bear

out this theory. It merely states ‘‘any witness.’’ The

action of the trial court was objected to (R. 7, 8, 9) because

it had already been admitted into evidence that an indict-

ment was pending and that Hazel Queenan was a witness

in that case. Her testimony concerning the full details of

the abortion case, for which the defendant, Dr. Ladrey, was

not then on trial, was totally unnecessary as government

proof against the defendants on the bribery charge; it

should not have been allowed, and it is respectfully urged

that prejudicial error occurred in allowing such testimony

to be received.

ee

13

Ill

The Court erred in permitting government witnesses

to testify to alleged statements made by the defendant,

Eva W. Ladrey, out of the presence of the co-defend-

ant, Henry M. Ladrey.

The record shows that the trial court permitted police

officers to testify that Eva W. Ladrey made statements out

of the presence of the co-defendant, Henry M. Ladrey,

following her arrest (R. 19, 23) to the effect that her

husband and co-defendant, Henry M. Ladrey, brought her

to, or near, the scene of the alleged crime. The statements

were objected to and exceptions noted (R. 43, 44, 65, 67).

Such statements were admissible only against Eva W.

Ladrey. They were hearesay in character and had no pro-

bative force against the co-defendant, Henry M. Ladrey.

By virtue of being remote and not spontaneous, they did

‘not come within the exception of the rule of the res gestae.

On the other hand, there was neither a charge of conspiracy

in the indictment, nor the showing of any evidence from

which an alleged conspiracy could be drawn. The trial

court should have directed a verdict in favor of the de-

fendant, Henry M. Ladrey, in the absence of positive

evidence to connect him with the crime charged.

The appellate court committed error in contending that

the jury was justified in regarding inconsistent statements

as ‘‘in themselves tending to show guilt and the existence

of a conspiracy’’ (italics supplied). The court further

erred in holding that it was immaterial that the indictment

did not specifically charge that the defendants had con-

spired. The case of American Fur Company v. United

States, (2 Pet. 358), relied upon as authority for this posi-

tion by the court, involved statements made by an agent in

connection with libel proceedings brought to confiscate

liquor. The case of Wiborg v. United States, 163 U. S. 632,

<Stennants . b> ue OCURAAS NEE oe eC ONET _ ae ceeenemeen

14

involved the illegal fitting out of a military expedition for

Cuba in violation of the neutrality laws of the United

States and also had no bearing upon the instant case.

In a local murder case, statements made by the wife out

of the presence of her husband were properly excluded by

the Court. Lomax v. United States, 27 App. D. C. 414, 1911.

In another local case, the court was careful to point out

that no declarations should be received in evidence against

a co-defendant unless there was first some evidence tending

to prove a conspiracy which implicated the co-defendant,

United States v. Gunnell, 1886, 5 Mackey (16 D. C.) 196.

See also Minner v. United States, 57 Fed. (2) 506, C. C. A.

1932.

In the case of Itaw v. United States, 223 Fed. 25, 1915,

C. C. A. 9th, the court stated the rule as follows:

‘‘Where two defendants charged with crime, are

tried jointly, a statement made by one of them is ad-

missible in evidence against him but not against his

co-defendant unless made in his presence and assented

to by him either actually or impliedly. Sparf & Ham

sen vs. United States, 156 U. S. 51, 58, 715, 15 Sup. Ct.

273, 39 L. Ed. 343; Alsabrooks v. State, 52 Ala. 24;

Johnson v. State, 70 Ga. 725; Brandt v. Com. 94 Pa. 290;

State v. Cram, 65 Vt. 650, 32 Atl. 502; Com. v. Bishop,

165 Mass. 148, 42 N. E. 560.”

T’o like effect was the court’s ruling in the case of Tresca

v. United States, 183 Fed. 786, 1910 C. C. A. 2d, wherein two

persons were jointly indicted for uttering counterfeit money.

A statement of one defendant out of the presence of the

other alleging that the second had participated in the alleged

crime was held to have been erroneously received by the trial

court. The Court pointed out:

‘There was error therefore in the denial of the mo-

tion to discharge him on the ground that there was no

evidence to connect him with a crime.”’

15

trial court erred in receiving such testimony here.

IV

cuting the Case.

v. United States, 295 U. S. 78, 88.

Conclusion

James R. Kirkuanp,

Rosert I. Mruuer,

JosepH A. McMenamin,

1 Bowling v. Com., Ky. 1910, 126 S. W. 360.

State v. Beebe, Wash. 1912, 120 P. 122, 66 Wash. 463.

McClelland v. State, Md. 1921, 114 A. 584, 138 Md. 533.

Pl. v. Coltra, Cal. 1931, 2 P. (2d) 35, 115 Cal. App. 539.

St. v. Archibald, Ia, 1927, 215 N. W. 258, 204 Ia. 406.

Williamson v. State, Ala. 1938, 186 So. 785.

State v. Perelli, Conn. 1939, 5 Ott (2d) 705, 125 Conn. 321.

McPhee v. Pl., Colo. 1940, 98 P. (2d) 997, 105 Colo. 413.

Pl. v. Vaccaro, N. Y. 1943, 42 N. E. (2d) 472, 288 N. Y. 170.

(5399)

The rule excluding such statements made by one co-de-

fendant out of the presence of the other has been followed

in the state courts.’ Accordingly it is submitted that the

The Court Erred in Allowing Improper Argument to the

Jury by the Assistant United States Attorney Prose-

In his argument, the prosecuting attorney, in commenting

upon the previous good reputation of the defendants, men-

tioned certain ‘‘bankers’’ who had been charged with crime

(App. 66, 67, 68, 69). The case on trial had nothing to do

with any ‘‘bankers’’ and the argument was far removed

from any of the facts of the case. This was unfair argu-

ment and should not have been allowed, because it may have

unduly influenced the jury against the defendant. Berger

For the reasons stated, it is respectfully submitted that

this petition for writ of certiorari should be granted.

Counsel for Petitioners.