Circuit Court of Appeals, Second Circuit.
*328 David V. Cahill, of New York City, for plaintiff in error Bentel.
Gallert, Hilborn & Raphael and David J. Gallert, all of New York City, for plaintiff in error Amos.
Emory R. Buckner, U. S. Atty., of New York City (Frederic R. Coudert and David P. Seigel, Asst. U. S. Attys., both of New York City, of counsel), for the United States.
Before ROGERS, HOUGH, and HAND, Circuit Judges.
HOUGH, Circuit Judge (after stating the facts as above).
Of the writ taken by Bentel it is almost enough to say that we think it wholly without merit.
There are assignments of error relating to the admission of evidence, concerning which we think the matters complained of were either discretionary with the trial judge, or illustrate the common complaint of counsel who start an inquiry and feel hurt when opponents pursue the matter to the disadvantage of him that started it.
It is also said to require a new trial that the prosecutor summed up in too forcible, if not a virulent, manner. We see nothing to complain of, except matters of taste, not errors of law. On the main proposition for Bentel, that there was no substantial evidence of his guilt to go to the jury, we must entirely disagree. It was admitted that Bentel was, if not a deviser, a most prominent forwarder, of the scheme for capitalizing Morosco. He promised to be the "watchdog of the treasury," and "watch Leven," with whom he joined hands to defraud the public by misrepresenting what Morosco had, and defraud the latter by withholding what Morosco Company was expected to yield to Morosco.
We perceive no legal question that will be made clearer by discussing the sordid details of evidence. The judgment as to Bentel is affirmed.
Amos is in a different and interesting category. He was never a principal, and he *329 had no part in devising the original advertisements or prospectuses, which contained most of the falsehoods mentioned in the indictment.
He was primarily a salesman, and for a while the sales manager, a position which brought him into intimate business relations with Bentel and Leven. He was, further, a prized salesman, and apparently a most successful one, for, while others had to be content with 15 to 20 per cent. commission, Amos received at least 25 and possibly 30 per cent. The argument on his behalf is this: Amos as an employee sent out circulars and prospectuses as true statements made by his superiors, who never revealed the truth to him, and he was justified in relying on those superiors' statements.
Obviously this argument is, in the main, matter for a jury. We are without power to do more than say whether or not there was evidence to go to the jury, and that, in this case, is equivalent to declaring the rule as to proof of scienter in respect of one who does not form, but as a servant assists in forwarding a scheme to defraud.
A scheme, under section 215, is usually, as in this instance, a method of obtaining money under false pretenses; it is in common speech a cheat by means of lies. But a stock-selling swindle like this was not an indictable cheat at common law; for "when one injured another by a falsehood, the common law said the neighbor should not have believed him"; wherefore the government permitted a private suit, but denied a criminal prosecution. Bishop, Cr. Law (Ed. 1892) vol. 2, § 582. Cf. Rex v. Wheatley, 2 Burr. 1125, per Mansfield, C. J. This was a theory of human responsibility suitable for a simple, if not a rude, state of society, and by statute for more than a century the Legislature has been making crimes of representations which would at common law only have supported an action for deceit, if even that were possible. Section 215, Criminal Code, is emphatically a statute of that kind.
But during the same time that statutory criminal responsibility for cheats has been growing, the civil responsibility for false pretense and fraudulent representation has received much study. It is now plain that one is more or less firmly held to knowledge of falsity by the circumstances under which he states that as true which is in fact false. Thus a man is supposed and required to know matters pertaining to his own business, and one who makes representations, not knowing whether they be true or false, cannot be regarded as innocent, for a positive assertion of fact is by plain implication an assertion of knowledge concerning the fact asserted. Bigelow on Fraud, p. 57, citing cases. And see Angus v. Clifford, [1891] 2 Ch. 449.
The matter is summed up by Lord Cairns in saying that a reckless statement of a fact of which the narrator is ignorant may be equivalent civilly to a statement of that which he knows to be false. Reese River, etc., Co. v. Smith, L. R. 4 H. L. 64.
The measure or rule for what is evidence of the ultimate fact does not change in moving from the civil to the criminal side of the court; only the necessary quantum of probative force changes, and the just cited rules as to knowledge of falsity are applied, when what was once but a civil responsibility becomes by statute a criminal offense. See Wharton, Cr. Law (11th Ed.) §§ 1429, 1452, 1492, 1510, and cases cited.
It always remains true that, when an intent or state of mind is a necessary ingredient of the offense charged, it must be averred and proved beyond a reasonable doubt; but it is just as true that, when that state of mind is a knowledge of false statements, while there is no allowable inference of knowledge from the mere fact of falsity, there are many cases where from the actor's special situation and continuity of conduct an inference that he did know the untruth of what he said or wrote may legitimately be drawn.
This is such a case. The evidence trailed Amos through months of time and many places into talk or writing with many persons whom he induced to buy stock of the Morosco Company. It was amply proven that he told most, if not all, of the falsehoods of the prospectus, and added some equally false statements, apparently devised by himself. The tales he told or wrote were the same sort of positive untruths as the prospectus contained, all calculated to persuade a gullible public that what was sold by him at prices varying with the victim's readiness to pay would yield a return beyond most dreams of avarice. And this was his business, at 25 per cent. or so to himself on every sale made. He was not a humble servant; he had opportunity as sales manager for a time to learn the truth; he was at headquarters, and the sort of statements made, whether taken from the company's "literature" or devised seemingly by himself, were of a kind that any man with a fair business sense of probabilities would have thought required much corroboration. And all was wholly without denial, for Amos offered no denials; he did not testify.
*330 We hold as matter of law that from this kind of evidence the jury could reasonably infer the necessary scienter, and that the quantum thereof was sufficient for their consideration.
The defense that one accused under this statute honestly believed, or had reasonable grounds to believe, the statements put forth, is for the jury. Rudd v. United States, 173 F. 912, 97 Cow. C. A. 462; Horn v. United States, 182 F. 721, 105 Cow. C. A. 163.
Judgment affirmed as to Amos, and by default as to Leven.
