Petitioners Brief — Petrelli v. United States

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1942.

ANTHONY JOSEPH PETRILLI, ;

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent. |

BRIEF IN SUPPORT OF PETITION.

OPINION BELOW.

The opinion of the United States Circuit Court of Ap-

peals for the Eighth Circuit is not yet reported, but will

be found annexed to the transcript of the record, page 103.

JURISDICTION.

The opinion of the Circuit Court was rendered on July

8, 1942. On July 21, 1942, an order was entered staying

the mandate of the Circuit Court of Appeals for the pur-

pose of permitting the within application for a writ of

certiorari.

The jurisdiction of this Court is invoked under Section

240 (a) of the Judicial Code, as amended.

STATEMENT OF CASE.

The statement of the case is contained in the petition.

inten

SPECIFICATIONS OF ERROR.

I.

The petitioner did not receive a fair trial, because the

Government read twenty-eight aliases to the jury and then

failed to offer proof as to a single one of them.

United States v. Salowitz, 99 F. (2nd) 714;

D’Allessandro v. U. S., 90 F. (2nd) 640.

II.

The evidence is insufficient to sustain conviction.

Pearlman v. U.S., 10 F. (2nd) 460;

Forte v. U. S., 94 F. (2nd) 236;

Brady v. U. S., 24 F. (2nd) 399;

Van Gorder v. U. S., 21 F. (2nd) 939;

Isbell v. U. S., 227 F. 788.

III.

The proof does not follow the allegations. There is a

variance between allegation and proof. The indictment

sets forth and describes in particularity sixty-one items,

but no proof in particularity was made.

U. S. v. Howard, 3 Summ. 12, 14, 15;

Kutler v. U. S., 79 F. (2nd) 440.

IV.

The proof failed to show that the defendant possessed

the alleged stolen property.

Willsman v. U. S., 286 F. 582.

V.

There was no proof that the jewelry found in St. Louis

County had a fair market value of five thousand dollars in

Texas.

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VI.

The Court erroneously charged that the evidence showed

the defendant was in possession of the stolen property.

Willsman v. U. S., 286 F. 582.

VII.

The sentence pronounced by the Court is void.

Title 18, U. S. C. A., Section 551.

Vill.

The Circuit Court of Appeals’ decision did not fully con-

sider the issues raised.

ARGUMENT.

1.

The Petitioner Did Not Receive a Fair Trial, Because the

Government Read Twenty-Eight Aliases to the Jury

and Then Failed to Offer Proof as to a Single One of

Them,

The petitioner was practically convicted before a word

of testimony was adduced, because the Government, in

order to prejudice the jury against appellant, read a list

of twenty-eight aliases. Appellant objected (R. 15) and

warned the Court that such was objectionable, but when the

Government counsel said to the Court, ‘‘WE ARE GOING

TO PROVE THESE ALIASES,” the Court permitted coun-

sel to proceed. The Government closed without proving

a single one of the aliases. Such prejudicial tactics ought

not to receive the approval of any United States Court.

The point is fully raised, objection and warning (R. 15)

in appellant’s motion for directed verdict (R. 73). We

now urge the Court to condemn this unfair practice and

set this point at rest in the interest of fair trials. Other

courts have condemned this practice and indicated when

the point is properly raised that the practice will be de-

nounced.

In United States v. Salowitz, 99 F. (2nd) 714 (1938), the

Court commented on the practice of indicting a defendant

under aliases as follows:

‘Tt is also urged that appellant was prejudiced by

charging him and his co-defendant under a number of

aliases. True, this practice has been criticized by

some courts, and, we think, not without merit. Of

course, if a person had used names other than his

right name, as the record discloses was the case so

far as appellant is concerned, and the government

proves such aliases, there can be no legitimate com-

—

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plaint. Otherwise, it is not difficult to see how a

defendant might be prejudiced before a jury. We do

not believe, however, the aliases attached to appel-

lant’s co-defendant, under the circumstances shown

to exist, could have any harmful effect as to appel-

lant.’’

Again, in D’Allessandro v. United States, 90 F. (2nd)

640 (1937), the defendant was indicted and tried under

a long string of aliases, i. e., Joseph D’Allessandro, alias

Joe Reno, ete. The Court held:

‘‘ Another practice which provokes comment is that

of loading a defendant with a long list of aliases.

This, it is true, may afford protection to a defendant,

if called upon to prove former jeopardy. None the

less, the string of aliases may be so arranged as to

carry the implication that the defendant belongs to

the so-called criminal class and thus half convict him

as soon as the indictment is disclosed to the jury.

‘““This appellant, however, cannot be heard to com-

plain either of the form of the indictments or of

their having been submitted together to the jury, be-

cause he made no appeal to the Court to protect him

from the evil consequences which he now charges

followed.’’

The Court will observe, that in the first few minutes of

the trial, the prosecution bombed the petitioner with

poisonous allegations it was not prepared to prove, except

by the naive method supplied de hors the record and re-

peated by the Court at R. 110. It seems that both

learned prosecutor and the august Court have completely

forgotten the spirit and the letter of the commandment

that ‘‘Nor shall he be compelled in any criminal case to

be a witness against himself, nor shall be deprived of

life, liberty, or property, without due process of law’’

(Fifth amendment). The Court’s statement of how and

what the prosecutor (R. 110) said he had expected to

a |

prove, justifies the inference that there was deliberate

intent to prejudice the defendant, because he must have

known that a defendant is not required to take the stand

and, in most cases, never does.

The statement of the Court (R. 108) as to the state of

mind of defendant is not a cogent reason for denying the

petitioner his liberty and is flatly contradicted by the

record at page 84:

‘*While the Court undertook, in so far as it was

possible for it to do so, to withdraw from considera-

tion of the jury the allegation of the aliases, we be-

lieve that this is impossible to do, since the United

States Attorney persisted in reading those; therefore,

the poison being in, it cannot effectively be removed,

and that the defendant has been prejudiced by this

unfair method pursued by the United States Attorney,

and for these reasons we now request the Court to

refuse to let the indictment go to the jury, because it

contains those prejudicial matters.’’

The whole atmosphere of the trial of this case was de-

liberately surcharged with passion and prejudice by the

prosecution, from beginning to end. Beginning with the

reading of the aliases and ending with the prosecutor

shouting ‘‘gangster’’ to the jury in his closing argument

(R. 76):

‘*Mr. Robinson: You men know why that statute was

passed. We didn’t have any highways and _ high-

powered automobiles during the time of our fore-

fathers. The purpose of that statute, and you men

know what the purpose was, is to stop gangsters, like

these men were, who are robbing men on the highway

and transporting the property taken——’’

The Circuit Court of Appeals refused to consider this

assignment of error and dismisses it at Record 107 with

the statement, ‘‘There is no occasion to go on spelling out

om 15 a

inescapable answers to patent propositions.’? We feel cer-

tain that judicial interpretation must consider every phase

of a case, and that if the Court had considered this preju-

dicial statement in connection with the reading of the

alleged aliases, the failure to prove them, that then it

could not have asserted that there was no prejudice in the

trial of this case. Liberty is too precious to be given such

short shrift.

2.

The Evidence Is Insufficient to Sustain Conviction.

The opinion reveals misstatements of facts and even the

mention of facts not in the record. For instance, at Record

104, ‘‘Appellant was apprehended a short time later.’’

There is not a single word in the record that shows appel-

lant was arrested a short time after the ambulance left the

scene of the accident, or, for that matter, any other time.

The only hint in the record as to when petitioner might have

been arrested is at Record 9, when he applied for a bond

on October 1, 1941, which is about twenty-one months after

February 8, 1940, the date alleged in the indictment (R. 5)

as being the date of the alleged crime.

At Record 104: ‘‘Slifkin’s brief case with the jewelry

was found in the car, and he duly made an identification

of all of the articles at the office of the highway patrol on

the following day.’’ The record nowhere shows that Slifkin

made the identification on the following day.

The Government did not prove in particularity what

jewelry was stolen in Texas or what jewelry was found in

the Minnesota car.

At Record 106:

‘‘In addition, he had previously described generally

the character of the articles stolen, and he had further

produced a detailed list of the sixty-one several items,

which he had prepared and was carrying with him as

a personal inventory at the time of the robbery, and

|

which was made available to appellant’s counsel for

purposes of comparison and cross-examination.’’

This Court will see, at Record 19, that the memorandum

was never identified or introduced in the evidence, and

that the question was withdrawn by the prosecution.

A careful and accurate reading of the record shows, in

the first place, there was no proof of the corpus delicti.

Our brief below was either not clear or the Court mis-

construes the definition of ‘‘corpus delicti,’’ as the Circuit

Court seems to be of the opinion (R. 106) that the alleged

stolen jewelry was the corpus delicti.

In the case of Pearlman v. United States, 10 F. (2nd)

460, under the Dyer Act, it was indicated that the corpus

delicti there is the transporting of a stolen automobile

across state lines with the knowledge that it is a stolen car.

Hence it will be seen that the knowledge of the stolen

character of the goods at the time of their transportation

is really the corpus delicti. Hence, the absence of proof

that the accused was at the scene of the robbery deprives

the Government of a very necessary point of proof which

it would seem could only be supplied by the defendant’s

confession. There was no confession in this case. In the

Pearlman case it was easy enough for the Government to

show that the automobile was stolen property. However, it

was very difficult for it to show that Pearlman had stolen

the car or knew it was stolen, and, while the Court held it

was most necessary, it ruled that the missing link of evi-

dence had been supplied by Pearlman’s confession to the

police when he said to them, ‘‘Well, you have me and that

is all there is to it.’’

Forte v. United States, 94 F. (2nd) 236, contains the

best definition of corpus delicti in transportation cases

(1. e. 243):

‘‘In the instant case the corpus delicti is transpor-

tation of the vehicle in interstate commerce from the

District of Columbia to Maryland knowing it was

—_ vn

stolen. The contention of the Government that the

scienter is not a necessary element of the corpus

delicti cannot be sustained. There is nothing criminal

under the statute about transporting a vehicle across

state lines unless the person transporting it knows it

to be stolen. The law is well settled that the corpus

delicti includes not only the body or fact of the wrong,

in the sense of the death in homicide or the loss of the

chattel in larceny, but also the criminal means by

which the same came about. See 4 Wigmore, Evi-

dence (2d Ed., 1923), Section 2072, where the learned

author, first expressing the personal view that the

term corpus delicti ought to be taken to include only

the first element, the fact of the injury or loss, and

not the second, the criminality which is the source of

the loss, nevertheless concedes that ‘by most judges

the term is made to include the second element also.’ ”’

The record is most inconclusive as to what jewelry was

actually stolen in Texas. The method of proving the alle-

gation of the indictment by the indictment itself is cer-

tainly violative of every rule of law and reason and per-

mits the witness to invade the province of the jury.

This case is devoid of any proof that the property de-

scribed in the indictment was carried across any state line.

The Ford car was not shown by any testimony to have been

in any place other than St. Louis County, Missouri. The

proof wholly fails to show that appellant transported either

the jewelry described in the indictment or the jewelry

found in a wrecked automobile at the intersection of U. S.

Highway No. 66 and Laclede Station road.

The Government predicates its whole case on the fact

that appellant was found in a dazed condition twenty-five

yards (seventy-five feet) away from the wrecked automo-

bile. No witness could or would say appellant was in the

Ford ear.

From this one circumstance, which is just as consistent

with innocence as guilt, the jury had to presume there had

been a robbery of the particular jewelry described in in-

== 18 ...

dictment in Texas; then the jury had to presume that the

jewelry found in St. Louis County was that same jewelry

taken in the robbery in Texas; and then the jury had to

presume on these—presumption upon presumption—that

defendant knew of the robbery in Texas and thereafter

caused the jewelry to be transported across state lines.

‘It is well settled that presumptions cannot be based

upon presumptions.’’ Brady v. United States, 24 F.

(2nd) (C. C. A. 8) 399, 1. e. 404.

There are a number of obvious explanations for appellant

being found dazed off the roadway and seventy-five feet

away from the wrecked ear, and this circumstance is not

sufficient to overcome the presumption of innocence—this

fact is not inconsistent with his innocence.

In Van Gorder v. U. S. (1927, C. C. A. 8), 21 F. (2d)

939, wherein the defendant was convicted of stealing two

post office keys and wherein the only evidence against him

was the possession of the said keys, the Court made the

following comments on the sufficiency of circumstantial

evidence:

‘‘In order to sustain a conviction of a crime on cir-

cumstantial evidence it must be such as to exclude

every reasonable hypothesis but that of guilt of the

accused; the facts proved must all be consistent with

and point to his guilt only and inconsistent with his

‘nnocence. Vernon v. U. S. (C. C. A.), 146 F. 121,

123, 124. The Circuit Court of Appeals of the Second

Cireuit in Norowitz v. U. S., 282 F. 575, 579, declared

that: ‘Unless there is substantial evidence of facts

which exclude every other hypothesis but that of

guilt, it is the duty of the trial judge to instruct the

jury to return a verdict for the accused, and where

all the substantial evidence is as consistent with in-

nocence as with guilt, it is the duty of this court to

reverse a judgment against the plaintiff in error.’

To the same effect are * * *.

‘“The evidence in this case utterly failed to exclude

every other hypothesis but that of guilt. The hypoth-

Pou ray,

ean oie

esis that one of the clerks in the post office who was

present there in the morning of January 17, 1924,

picked up the keys which the substitute letter carrier

had left lying on the table outside the money order

department, dropped or laid them elsewhere, whence

they had been transferred by him or others until they

had come to the possession of the defendant, the

hypothesis that some thief had stolen them, then lost

them, and the defendant had innocently found them, or

that in many other ways without the theft of the

defendant they had come to his possession, is under

all the evidence, more probable in the face of the legal

presumption of the defendant’s innocence and the

requirement that his guilt be proved by the Govern-

ment beyond a reasonable doubt before his conviction,

than the hypothesis that he was guilty of this crime.’’

In Isbell v. U. S., 227 F. 788 (8 Cir., 1915), the Court

went to great length to explain the following rule:

‘*Evidence of facts that are as consistent with inno-

cence as with guilt is insufficient to sustain a convic-

tion. Unless there is substantial evidence of facts

which exclude every other hypothesis but that of guilt

it is the duty of the trial judge to instruct the jury

to return a verdict for the accused, and where all the

substantial evidence is as consistent with innocence

as with guilt it is the duty of the appellate court to

reverse a judgment against him.’’ (Emphasis ours.)

3.

The Proof Does Not Follow the Allegations. There Is a

Variance Between Allegation and Proof. The Indict-

ment Sets Forth and Describes in Particularity Sixty-

One (61) Items, But No Proof in Particularity Was

Made.

This indictment sets forth sixty-one (61) articles of

jewelry with particular descriptions. The proof failed

to describe the articles in particularity. The Circuit

a

Court, in effect, said that with what particularity the

proof must follow the allegations might be a question

when properly raised. The proposition was properly

raised (R. 72) both by motions for directed verdict and

in exceptions (R. 83) and the point was squarely before

the Court, but the opinion here (R. 106) seeks to shift

the burden to petitioner to supply by cross-examination

that which the prosecution has failed to prove. It is

elementary that the prosecution must first support the

allegations of the indictment.

There can be no question that, from the standpoint of

jeopardy, fair trial and plain justice, when the indictment

describes with particularity, that the proof must follow

the allegations. Allegata et probata.

Numerous decisions are found for the proposition that

when a person, place or thing, necessary to be alleged,

is described more particularly than is necessary, the

allegation must be proved, because such words are requi-

site to the identity of that which is legally essential.

Within this class, opinions are legion which show that

a description of money as silver or gold certificates, cur-

rent money, merchandise, ete., are matters of description

within the exception.

In the case of United States v. Howard, 3 Summ. 12, 14,

15, we find the first application of the exception in the

federal courts. Therein Justice Story said as dicta:

‘*But no allegation, whether it be necessary or un-

necessary, whether it be more or less particular, which

is descriptive of the identity of that which is legally

essential to the charge in the indictment, can be re-

jected as surplusage.e * * *”?

‘‘On the other hand, if a man should be charged

with stealing a black horse, the allegation of color,

although unnecessary, yet, being descriptive of that

which is material, could not be rejected as surplusage.

2 Russ. Crimes 706. So upon an indictment for steal-

ing live tame turkeys, the description of live could

a pon

not be rejected as surplusage, and proof of stealing

dead turkeys would not support the indictment. That

was so held in Rex v. Edwards, Russ. & R. 497.’

In the recent 1935 Circuit Court of Appeals case of

Kutler v. U. S., 79 F. (2nd) 440 (C. C. A. 3 Pa.), the Court,

in the course of the opinion, said:

‘*Where there is an allegation which describes, de-

fines, qualifies, or limits a matter material to be

charged, it is taken as a descriptive averment, and the

general rule is that it must be proved as laid, even

though such particularity of description was unneces-

sary. Trice v. State, 116 Ga. 602, 42 S. W. 1008; U.S.

v. Howard, 26 Fed. Case 388, No. 15,403; State v.

Lashus, 67 Me. 564; State v. Langley, 34 N. H. 529;

Commonwealth v. Dejardin, 126 Mass. 46, 30 Am. Rep.

652. In the case at bar the word ‘receiver’ describes

John M. Hill and such description was essential. It

was accordingly necessary for the Government to

prove it, but the evidence showed that the description

was false and the variance was fatal.’’

4.

The Proof Failed to Show That the Defendant Possessed

the Alleged Stolen Property.

It is crystal clear that the witness testified that appel-

lant was never seen in the wrecked car—the nearest he

is ever placed to it is 75 feet away in a filling station

driveway in a dazed condition. Some jewelry was found

in the automobile. Whether it was jewelry taken in

Texas is doubtful and not clearly proven by competent

evidence. Such facts do not warrant the assumption that

appellant was in possession of the stolen jewelry or any

jewelry, and the law will not permit the jury to ignore

the presumption of innocence by the inference which

arises from the possession of recently stolen property.

POSSESSION MUST BE PERSONAL AND EXCLU-

a

SIVE. APPELLANT WAS NOT SHOWN TO POSSESS

THE JEWELRY.

‘“‘The general rule is that possession, to be incrim-

inating, must be personal and exclusive.’’ Willsman

v. U. S., 286 F. 582.

The presumption of possession of recently stolen prop-

erty does not and could not possibly apply to the facts in

this case, because the evidence fails to show that the peti-

tioner was in the automobile or that he transported the

jewelry from the State of Texas to the State of Missouri.

Even if petitioner had been shown by direct evidence to

have been in the car, the evidence would still be insuffi-

cient to convict petitioner, because the proof in the case

does not show that petitioner was in the State of Texas

or carried the jewelry described in the indictment across

any state line, or that he had knowledge of such trans-

portation. To reach such a conclusion, it is necessary to

pyramid presumptions: (1) It must be presumed that he

was in Texas; (2) that he had knowledge that the jewelry

described in the indictment was stolen in Texas, and (3)

that he transported it across state lines. In the evidence

as it stands there is none to show that he was present in

Texas or that he had any knowledge that the jewelry

described in the indictment was stolen and transported

across state lines.

The Circuit Court of Appeals ignores the rule of law

that there must be substantial evidence which excludes

every other hypothesis but that of guilt in order to con-

vict on circumstantial evidence, by ruling at record 104,

that the jewelry here was stolen in Texas and transported

to Missouri, and assumes outside the record that it was

possible to reach Missouri in the time elapsing between

2:15 p. m. one day and 5:30 a. m. the next; that the Minne-

sota Ford did such; and that the petitioner was in that

car, when the record shows that no witness would say peti-

ae ae

tioner was in the car and against the fact that he was

found seventy-five feet away from the car off the road in

a filling station lot. He might have been there from any

number of reasons or causes other than that assumed by

the Court.

5.

There Was No Proof That the Jewelry Found in St. Louis

County Had a Fair Market Value of $5,000.00 in

Texas.

The proof of the value of the jewelry is cloudy. We

submit that cross-examination of witness Hoeman (R. 62)

shows that he was no expert at all. Furthermore, the Gov-

ernment’s failure to produce the jewelry at the trial de-

prived appellant of the right to have jewelry appraised by

a qualified and disinterested expert. No proof was offered

to show the value in Texas of the property found in St.

Louis County, or that described in the indictment. The

Kighth Circuit Court of Appeals held, in Husten v. U. S.,

95 Fed. (2) 440, that the value of stolen property is the

market value at the time and place of taking.

6.

The Court Erroneously Charged That the Evidence Showed

the Defendant Was in Possession of the Stolen Prop-

erty.

The Court’s charge (R. 82) injected another unauthor-

ized and prejudicial factor in the case when the Court

charged:

‘‘There is evidence in this case to the effect that the

jewelry in question was stolen. In this connection the

jury is entitled to consider as a circumstance in the

case the fact, if you believe it to be a fact, that the

jeweiry was shortly thereafter in the possession of the

defendant.’’

— ae

There was no evidence that the defendant was ever in

possession of a single piece of the alleged stolen jewelry

or any other jewelry; therefore the Court tried to draw an

inference from the thin air, not from any fact in the case,

and thereby misled the jury into thinking that matters not

in the record were circumstances in the case. There was

not even any competent evidence that the jewelry described

in indictment was stolen.

The Court, after exception by appellant, realized its

error and undertook to withdraw this prejudicial charge

from the jury (R. 84). Unfortunately poison cannot be

withdrawn from the veins of a lawsuit by any such simple

expedient. Jurors heed what they first hear.

The mere fact that jewelry was found in a wrecked car

occupied by two men seventy-five feet from where appel-

lant was found injured raises no presumption of possession

on his part.

In the case of Willsman v. United States, 286 F. 852

(8 Cir.), the Court said:

‘“‘The general rule is that possession, to be incrim-

inating, must be personal and exclusive.’’

Thus we see the case is replete with instances and inci-

dents which plainly militated against a fair trial. First,

the prosecutor read a long list of aliases to create an un-

favorable impression; then he followed this up by calling

the petitioner a gangster; then the Court misstated the

evidence (R. 82), and finally, at record page 79, attempts

to condone the mistake of the prosecution by instructing

the jury to forget that it had heard the prosecutor read

aliases and solemnly assure the Court he would prove

them; forget that the prosecutor called the petitioner a

gangster, and forget that the Court misstated the evidence.

The minds of laymen are too frail to hear so much

prejudicial matter and forget it. How could the jury

sais aes

forget any of these things when their minds had been

inflamed by tactics which charge the court room with

prejudice?

7.

The Sentence Pronounced by the Court Is Void.

Finally, the Cireuit Court of Appeals refused to consider

assignment No. 7, which was stated and argued in our

brief below:

The sentence pronounced by the court is void be-

cause the court charged the jury as if appellant were

an accessory after the fact; then, after verdict of

‘‘guilty’’ imposed maximum sentence, when section 551,

title 18, requires that sentence be only half of maxi-

mum.

The Court, apparently realizing that the evidence failed

to show appellant at the scene of the Texas robbery, and

did not show appellant carried any stolen property across

state lines, and failed to place defendant in the automo-

bile where some jewelry was found, apparently concluded

that appellant might be an accessory after the fact. At

any rate, the Court gave the following charge (R. 82):

‘‘Another point should be called to your attention

and that is based upon a federal statute. The statute,

in effect, provides that there is no distinction as be-

tween the guilt of a principal and the guilt of an

accessory; that one may be charged and prosecuted

as a principal, and if it turns out that he is only an

accessory he may, nevertheless, be convicted. A prin-

cipal is one who actually commits a crime. An acces-

sory is one who willfully aids, abets, counsels, or

commands the commission of the offense. All persons

who act together with a common intent in the com-

mission of a crime are equally guilty, and if two or

more persons are so acting together with a common

intent and purpose in the joint execution of the plan,

== 96 —-

then the act of each one is binding upon the other,

and this is true, regardless of whether the others are

present or not.’’

Such a charge, taken in connection with the erroneous

charge on circumstantial evidence and erroneous state-

ments concerning possession, as above set out, undoubtedly

strongly influenced the finding of the verdict of guilty.

Having given such a charge, the Court was bound to

sentence appellant under the provisions of Title 18, U. C.

C. A., Section 551:

‘‘Whoever, except as otherwise expressly provided

by law, being an accessory after the fact to the com-

mission of any offense defined in any law of the United

States, shall be imprisoned not exceeding one-half

the longest term of imprisonment, or fined not ex-

ceeding one-half the largest fine prescribed for the

punishment of the principal, or both, if the principal

is punishable by both fine and imprisonment; or if the

principal is punishable by death, then an accessory

shall be imprisoned not more than ten years.”’

The maximum sentence under section 415 is ten years,

which the Court imposed, when it should have imposed

only five years. Therefore, the sentence as imposed is void.

8.

The Circuit Court of Appeals’ Decision Did Not Fully

Consider the Issues Raised.

It was error for the Cireuit Court of Appeals to refuse

to consider petitioner’s assignment of error No. 3 at record

96-97; assignment of error No. 4 at record 97-98; assign-

ment of error No. 5 at record 99; assignment of error No. 6

at record 100; assignment of error No. 7 at record 100-101.

The Court’s refusal to consider petitioner’s assignment

of error No. 3, which complained that the Assistant United

ow OT ome

States Attorney called the petitioner a ‘‘gangster’’ avoided

the necessity of further noticing the prejudicial manner in

which this case was tried. However, such procedure con-

dones unfair trial tactics and deprives defendant of liberty

without due process of law. This episode throws light on

the prejudicial atmosphere, and when all such incidents

are added together reveals an unfair trial.

It is the duty of the appellate court to review all points

raised in an appeal. To refuse to review all points raised

renders the right of appeal futile. In this case one of the

primary points was unfair and prejudicial acts by the

prosecutor, but, notwithstanding this, the Court is at pains

(R. 107) to show that no prejudice existed. It would

seem, therefore, that the Court should have passed on

assignment No. 3 (R. 96), which complained that Govern-

ment counsel in argument to the jury referred to defend-

ant as ‘‘gangster.’’ The episode in the trial is shown at

R. 76. Since the Circuit Court of Appeals failed to pass

on all the issues in the case, it would seem that it is the

duty of this Honorable Court to grant certiorari to the

end that the petitioner’s case be fully reviewed.

CONCLUSION.

It is therefore respectfully submitted that, for all the

foregoing reasons, the petitioner’s application for a writ

of certiorari should be allowed as prayed.

Respectfully submitted,

BRYAN PURTEET,

Attorney for Petitioner.