Citations
- 164 F.2d 377
Full opinion text
ORR, Circuit Judge.
The appellants were prosecuted upon an indictment of forty counts, Count One charging conspiracy to violate the Emergency Price Control Act of 1942, 50 U.S.C. A.Appendix, § 901 et seq., and the remaining counts charging substantive sales in excess of the legal maximum price and the falsification of entries in documents required to be kept, under the provisions of the Emergency Price Control Act and regulations. Prior to the submission of the case to the jury, the government dismissed sixteen of the substantive counts. Appellants William Shubin and Jack L. Kissel were convicted on all the remaining counts, and appellant Frederick Shubin was found guilty on the one conspiracy count and on six substantive counts. William Shubin and Jack L. Kissel were fined a total of $28,000 and sentenced to one year imprisonment on the conspiracy count, and six months on each of the other 23 counts, all sentences to run concurrently. Frederick Shubin was fined $5,500 and given concurrent sentences of six months on Count One, and three months on each of the other six counts.
The indictment charged in detail that appellants, while engaged as partners in the sale of meat at wholesale under the firm name of Vernon Hotel & Restaurant Supply Company, systematically sold their meat at prices in excess of the legal maximum and made fraudulent entries on their records to conceal their illegal activities.
The undisputed testimony of the three retail meat dealers, Dvorak, Veuhoff and Snider, who testified for the Government, indicated the following:
On or about November 1942, William Shubin had a discussion with Dvorak with regard to Dvorak’s purchasing meat at overceiling prices. Dvorak was told that if he wanted to stay in business he would have to “play ball.” Some months later, Dvorak began to make over-ceiling purchases of meat. Invoices were issued by the Vernon Hotel & Restaurant Supply Company in amounts not in excess of the price ceilings, and the sum on the invoice was paid to a clerical employee. ' An additional sum was paid in cash on each occasion to “either Bill or Jack,” i. e., William Shubin or Jack L. Kissel. Evidence of 16 such over-ceiling purchases by Dvorak in 1944 and 1945 was introduced by the Government. About the first of the year 1945, Veuhoff had a similar conversation with Jack Kissel relative to Veuhoff’s purchasing meat at over-ceiling prices, and Kissel told Veuhoff he would have to pay ten cents a pound over ceiling for bacon and ham, three or four cents for beef and eight or ten cents for pork loins. The same procedure was henceforth followed with Veuhoff who paid the invoice price of each purchase to a clerical employee, and an over-ceiling sum to William Shubin or Jack Kissel. , Four such sales occurred in 1945. Snider, who operated a retail meat business under the name “P. & S. Market,” testified to three similar over-ceiling transactions in 1944 and 1945.
Appellants assign as error the admission into evidence, over appellants’ objections, of the testimony of the witnesses •Dvorak, Veuhoff and Snider. The admission of the evidence of these witnesses is claimed to be improper because said witnesses, with a single exception, failed to-identify the particular appellant who sold them meat at over ceiling prices. Witness-Snider identified appellant Jack Kissel as having made one such sale to him. As to-other instances the witnesses testified they made purchases from “either Bill or Jack.”' In view of the fact that other evidence in the case, which we will hereinafter discuss, connects the appellants with