Hair v. United States

ARSCHURER, Circuit Judge (after stating the facts as above). Various of the numerous assignments of error involve rulings of the court excluding from the evidence testimony of certain witnesses, and many admittedly genuine letters, all tending to establish the merit and the efficiency of these dry chemical extinguishers, and their capability of extinguishing fires of various kinds, and bearing on the state of mind of defendants in making the alleged fraudulent representations. [ 1 ] The defendants were charged with falsely representing that the product was worth what the agents paid for it, viz. $2 per tube, and that it would readily sell at $3, and that it would easily extinguish all [336] kinds of fires however fierce and savage, when in fact the indictment charges the product was not worth to exceed $1 per tube and would not readily sell at $3 and would not put out fierce or savage fires. The article was made by a secret process, and even if the evidence revealed its ingredients, which it does not, its commercial value would not be determinable alone from the actual cost of such ingredients plus cost of manufacture. Its utility would be an important element bearing on its money value as a manufactured article. If useless and ineffective, it would doubtless be worth commercially less than the cost of the ingredients, since by thus compounding them into a useless product the original value of the ingredients would be impaired, if not wholly lost. If, on the other hand, the product was highly efficient, this fact would tend strongly' to have an opposite effect on its money value. Evidence of efficiency was competent as bearing on the value, desirability, and salability of the product. Under this charge of fraudulently representing the product to be capable of instantly extinguishing all kinds of fires, however fierce and savage, at least one of the government’s witnesses (Zieman) testified that in his experiments only once in a while could he put out a fire, and that he had complained that tire powder would not work. The efficiency of the product to put out fires was an issue, independent of its bearing on the valpe and salability, on which evidence of witnesses as to their experience with it, and as to the character and kind of fires which it would extinguish, was clearly admissible. [2, 3] Of tire essence of any such alleged criminal scheme or artifice is the intent to defraud. If this be wanting, there is no such scheme or artifice, and no crime. Tetters of the'nature of those which were excluded, coming to the attention of the defendants before the time of the alleged offense, and reasonably capable of inducing or confirming or strengthening faith in the excellence and efficiency of the product, are admissible under such charge, on the question whether the representations charged and proved were made in good faith or with intent to defraud. Hibbard v. United States, 172 Fed. 66, 96 C. C. A. 554, 18 Ann. Cas. 1040; Harrison v. United States, 209 Fed. 662, 119 C. C. A. 78; Gould et al. v. United States, 209 Fed. 730, 126 C. C. A. 454; Patterson v. United States, 222 Fed. 599, 138 C. C. A. 123. Indeed, the admissibility of evidence such as that excluded is not seriously controverted on behalf of the government, but it is earnestly insisted ’ that on the trial the government conceded that these dry extinguishers were efficient to put out fires, and that therefore there was rio error in ruling out this evidence; and that in any event in view of such concession by the government, together with the fact that some evidence was admitted to like effect as that which was excluded, no possible harm came to defendants through the exclusion. - Charged with willfully and fraudulently misrepresenting the efficiency and the value and salability of the product, and at least one witness for "the government having testified in support of that charge, it was the right of the defendants to have their evidence in exculpation fully adduced before the jury, and they should not have been required [337] in lieu of such right to accept the concession of the district attorney on a proposition so- material and’ important to1 the defense. [4] This is particularly true in view of the fact that the concession of the government does not appear to be as broad as the charge or the evidence thereunder. The indictment alleged a deliberate and fraudulent misrepresentation as to efficiency and value and salability, and charged that the product “would not instantly destroy by scientifically smothering all kinds of fires no matter how fierce or savage, and that the said fire extinguishers were not capable of extinguishing fierce and savage fires.” The concession of the government was not formal, but appeared in various colloquies between counsel themselves or with the court, occurring at different times during the long trial. In most instances the concession is qualified by the word “incipient,” and thus limited the conceded efficiency of the extinguisher to putting out incipient fires. The concession did not go to the extent of its putting out “all kinds of fires no matter how fierce or savage.” On the argument to the jury counsel for the government undertook .to minimize the concession by saying “the government admits that these extinguishers are good for incipient fires just as a bucket of water would be to smother flames,” and on objection by defendants’ counsel the court said: “This is merely something that you can comment on in your reply. * * * It has been admitted by the government that this is a perfectly efficient powder for putting out incipient fires, and I have already instructed the jury.” If the concession was such that counsel could properly argue that the extinguisher had no greater merit than a bucket of water in putting out fires, evidence of capability far beyond that was proper and material, and its éxclusion erroneous. This indefiniteness and uncertainty of the extent of the concession but emphasizes the impropriety of excluding the offered evidence. Nor can we conclude that through the exclusion of the evidence no substantial harm came to defendants. Where from examination of the entire record the guilt of the accused is so plainly apparent that, even with the rejected evidence admitted, the result could not have been otherwise, the error in rejecting the evidence might be considered harmless, and not sufficient ground for reversal. But such examination of the record here does not satisfy us that the guilt of the defendants is so plainly apparent that, had the improperly excluded evidence been before the jury, a different result might not have been reached. For the error indicated, the judgment is reversed, and the cause remanded, with direction to grant a new trial.