Smith v. United States

188 F.2d 969 SMITH v. UNITED STATES. No. 12573. United States Court of Appeals Ninth Circuit. February 26, 1951. Rehearing Denied June 15, 1951. Irving Kipnis, Tucson, Ariz., and Jackson E. Nichols, San Francisco, Cal., for appellant. Frank E. Flynn, U. S. Atty., Phoenix, Ariz., for appellee. Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges. ORR, Circuit Judge. 1 The Arizona Institute of Aeronautics, Inc., hereinafter called the Institute, entered into a contract with the Veterans Administration for on-the-job training of veterans. As a part of the training program certain supplies were furnished the students by the Institute and the Veterans Administration billed for the cost, such billing being in the form of vouchers supposed to reflect the true amount due. Appellant, a director and stockholder of the Institute, was indicted, tried and convicted on a charge of having presented to the Veterans Administration, an agency of the United States of America, for payment, a false claim in the name and on behalf of said Institute, in violation of § 287, 18 U.S.C.A. 2 Eight assignments of error are made. In oral argument appellant stressed but one, number 8, later in this…

The Arizona Institute of Aeronautics, Inc., hereinafter called the Institute, entered into a contract with the Veterans Administration for on-the-job training of veterans. As a part of the training program certain supplies were furnished the students by the Institute and the Veterans Administration billed for the cost, such billing being in the form of vouchers supposed to reflect the true amount due. Appellant, a director and stockholder of the Institute, was indicted, tried and convicted on a charge of having presented to the Veterans Administration, an agency of the United States of America, for payment, a false claim in the name and on behalf of said Institute, in violation of § 287, 18 U.S.C.A.

Eight assignments of error are made. In oral argument appellant stressed but one, number 8, later in this opinion considered. Assignments 1 and 2 deal with an alleged defect in the indictment because of its failure to contain certain requirements of § 1001, 18 U.S.C.A. The simple answer to that contention is that the indictment was drawn under § 287, not § 1001. No contention is made of its insufficiency under § 287.

Assignments 3 and 4 are directed at a ruling of the trial court…

(dissenting).

I dissent. Here is a clear case of taking from a defendant the court’s instruction of his presumption of innocence and his right to acquittal unless his guilt is proved beyond a reasonable doubt. This is the necessary result of saying, “You *973 don’t have to pay any attention to my instructions unless you want to.”

Here at 5 p. m. the jury is in a dispute, coming from the jury room so hot and loud that it is heard by the judge in his chambers. He tells the jury it is likely if they do not come to an agreement that they will be locked up for the night. To me it is an absurdity to say of a jury, in such heat it must be reprimanded by the judge, that all the jurors will at once regain the required calm deliberation necessary for what t'he court describes as a “conscientious conviction.” In such heated pressure those for conviction were in a position to say, “The judge himself has told you you don’t have to bother about this business of burden of proof and presumption of innocence. Let’s settle our quarrels and go home.”

No accused in our American system should be put in such a position. The judgment should be reversed.

Rehearing denied; DENMAN, Chief Judge,…