Silverfarb v. United States

ARNOLD, Associate Justice. Defendant was convicted on two informations for violating the Emergency Price Control Act.1 Each information charged that he had sold a sack of onions at a price above the maximum ceiling. The principal testimony on behalf of the Government was given by a witness who had actually made the purchase. To corroborate this testimony the Government introduced evidence that the witness had been searched both prior to the sale and immediately afterwards by an investigator for the Office of Price Administration. At the first search the amount of money which the witness had on his person was ascertained. The second search disclosed how much money he had left when he returned. The witness who purchased the onions was not under observation during his dealings with the defendant. The trial court under objection admitted this testimony on the theory that the difference between the two sums found on the witness before and after his purchase was circumstantial evidence of the amount he paid for the onions. The Municipal Court of Appeals took the same view. Silverfarb v. United States.2 This was error. During the period that the witness was not under observation he could have disposed of money in any number of different ways. The evidence as to the two searches, therefore, does not corroborate the testimony of the witness as to what he did with the money. It is a frequent practice in criminal cases involving illegal purchases to search the purchaser before sending him on his errand and then to make a second search when he returns. In cases where marked money is used such corroboration is often quite convincing. In other cases, where a witness comes back from premises with drugs which are difficult to obtain, and which he did not have when he entered, such testimony has probative value. But where he enters with a number of small objects on his person and comes back without them, this is not evidence that he did not throw them away. [12] The relevancy of this kind of evidence is within the discretion of the trial court. Here its discretion was not properly exercised.3 Nevertheless, we do not find that the defendant was substantially prejudiced merely because evidence of no probative value was permitted to encumber a record which in other respects contained dear evidence on which the jury could return a verdict of guilty. Affirmed. Mr. Justice MILLER concurs in this opinion. Footnotes [1] 50 U.S.C.A.Appendix, § 904(a). [2] 1944, 40 A.2d 82. [3] Cf. Harris v. United States, 6 Cir., 1926, 16 F.2d 117; Wigmore, Evidence (3rd Ed., 1940), § 1104.