Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges.
This is an appeal from a conviction for violation of sections 145(a) and 145 (b) of the Internal Revenue Code, 26 U.S.C.A. The alleged 145(a) violations cover the years 1949 and 1950, while the alleged 145(b) violations cover the calendar years 1946 to 1950, inclusive. The indictment was in seven counts, and the jury returned a verdict of guilty in all. The trial judge sentenced the defendant to imprisonment for one and one-half years on each of counts one to five and for one year on counts six and seven, respectively, but provided that the sentences on all seven counts were to run concurrently.
The defendant has raised numerous points as reasons for reversal of the judgment against him. They will all be noticed but not in the order in which they were presented.
The first and what seems to us the most serious argument for reversal is that the defendant did not get a fair trial. If this allegation were borne out by the record we should, of course, order a new trial as we have in numerous other cases. Obviously the way to investigate this matter is not on the basis of the quotations here and there from colloquies between judge and counsel over an eight-day trial, but to read the report of the proceedings as the trial went on.When this is done the allegations that the defendant did not get fair treatment are not supported. The defendant, who is a member of the bar, conducted most of his own defense. As would be expected under the circumstances, he endeavored to take advantage of all points which he conceived to be in his favor. There were numerous exchanges of remarks between the court and the defendant whose position on some legal points was quite different from that of the judge. Occasionally the judge reproved defendant, but he also assisted him at times in phrasing a question to bring out a point. He allowed very great freedom in crossexamination of the government's witnesses. The impression from the reading of a long record is that the trial was conducted with fairness and with as few clashes as this type of litigation would be expected to produce. See United States v. Stoehr, 3 Cir., 196 F.2d 276, 33 A.L.R.2d 836, certiorari denied 1952, 344 U.S. 826, 73 S. Ct. 28, 97 L. Ed. 643.
Complaint is made also that the judge's instruction to the jury was not a fair one. This complaint is not supported by a reading of the charge. It was full, it was fair. The court endeavored to refresh the memory of the jurors by recounting the testimony of witnesses. The defendant complains that the court emphasized matters unfavorable to him and left out those which were favorable to him. As a matter of fact, the court could have gone much further than it did in commenting on the testimony. It is to be noted that in the course of his instructions the judge told the jury:
"If, during the trial of the case, it was necessary for the court, in a legal fashion, to rap the knuckles of either one of these gentlemen [counsel], that has absolutely nothing to do with the case in the slightest respect because they were advancing their own particular theory of the case as they, as lawyers, must do. So that has nothing to do with it. By and large, I guess, the best yardstick that I could possibly give you is the oath of office that you took when you started to hear the case that 'you and each of you do solemnly swear that you will well and truly try this issue, and a true verdict render, according to the evidence, so help you God.'"
We are completely satisfied that there is no ground for reversal either in the general conduct of the trial or in the instructions to the jury.
The defendant urges that there should be a reversal because one of the jurors became ill during the jury's deliberations and therefore he had a verdict by eleven instead of twelve jurors. What happened was this. After the jury had been out for some time and had received additional instructions on one point, a request came that some Alka Seltzer be secured for one of the jurors. This was agreed to by counsel and the article was sent to the jury room. Subsequent to the trial the defendant offered statements from two of the jurors to the effect that the forewoman was affected by indigestion during the time the jury was out and that she did not take part in the deliberations for a portion of the time. On the other hand, we have a memorandum from the trial judge that he interviewed the juror in question, who declared that she was not incapacitated.
We think a jury system cannot be made to work if, after trials, verdicts may be attacked by such affidavits from jurors. Suppose it is to be shown that one juror took a nap, or that another refused to participate in the general discussion of the case at hand, or that another used bad language and thus intimidated more timid members of the jury. There is no limit to the number of attacks on a verdict which could be made if this kind of thing were permitted. Jurors are selected with care; they take an oath to perform their duty; and their verdict is not to be impeached by affidavits of this type. Parsons v. United States, 5 Cir., 1951, 188 F.2d 878; United States v. Furlong, 7 Cir., 194 F.2d 1, certiorari denied 1952, 343 U.S. 950, 72 S. Ct. 1042, 96 L. Ed. 1352. See also United States ex rel. Daverse v. Hohn, 3 ...