Before L. HAND, CLARK, and FRANK, Circuit Judges.
This appeal brings up for review a trial of charges of improper manufacture of munitions of war had upon two indictments filed in the District Court on August 25, 1943. The first indictment charged the present appellants, Antonelli Fireworks Co., Inc., Amerigo Antonelli, John and Joseph DeRitis, and Dominick Barbollo, in fifteen counts with wilfully defective manufacture of war material in violation of 50 U.S.C.A. § 103; while the second charged these same defendants and three others, Bennie Piteo, Frank Bianchi, and Angelo Costanza, in a single count with conspiracy to defraud the United States in its war effort in violation of 18 U.S.C.A. § 88.*fn1 Piteo and Bianchi pleaded guilty. The court consolidated the two indictments; and after a trial which lasted from May 1 to June 10, 1944, and produced a record of nearly 4,000 pages, the jury acquitted the defendants of all charges of the first indictment, but found the corporation, Antonelli, the DeRitis brothers, and Barbollo guilty as charged in the second indictment. Costanza was found not guilty. The court imposed fines upon the corporation and upon Antonelli, and sentences of imprisonment for eighteen moths upon Barbollo, and for two years upon the other individuals. Their appeal seeks reversal of their convictions on the grounds of insufficiency of the evidence, errors in the conduct of the trial, and repugnancy in the verdict.
Antonelli Fireworks Co., Inc., was a family corporation, all the stock of which was owned by its president and treasurer, the defendant Amerigo Antonelli. John and Joseph DeRitis, stepsons of Antonelli, were superintendents of the factory; and Barbollo, husband of a stepdaughter of Antonelli, was a foreman. Although organized in 1925, its debts appear to have been consistently greater than its assets until November, 1941, when, through the Chemical Warfare Service of the Army, it obtained a contract with the United States covering, inter alia, the loading of 3,000,000 incendiary bombs at a unit price of 33 1/2 cents, or a total of $1,005,000. This munitions contract was an immediate boon, for the government not only made an advance payment of 30%, but also provided the money for new buildings and equipment, salaries of employees, and retirement of a corporate indebtedness of roughly $15,000. Production of bombs started in February, 1942; and in July, 1942, the corporation obtained the other government contract here in question, for the manufacture of 1,000,000 M-14 incendiary grenades at a unit price of 17 1/2 cents, or a total of $175,000. Since magnesium was not available at the time of the bomb contract, the corporation was permitted to make a substitute steel-jacket bomb, subject to the government's option to require magnesium on 30 days' notice.
Both contracts contained strict specifications of manufacture. The contract for bombs imposed the obligation of inspection primarily upon the contractor; and the grenade contract provided that invoices for materials produced should bear the certification of the contractor that the bill was accurate and the conditions in all respects complied with. The specification in both contracts with which we are here particularly concerned was that a charge of Therm-8, or incendiary mixture of specified weight, was to be loaded into the grenade or bomb, whether steel-jacket or magnesium, in four approximately equal increments, each increment to be successively consolidated.*fn2 Eighty per cent of the bombs were to be ordinary incendiary bombs, and twenty per cent were to be made with burster charges. On the trial, a colonel in Chemical Warfare Service, qualified as an expert on incendiary munitions, testified that the employment of separate increments was necessary to obtain a uniform center of gravity, and that the functioning of the bombs would be seriously impaired by consolidation of a lesser number of increments than called for by the specifications. He further testified that the purpose of the requirement for burster charges in 20% of the bombs was to discourage fire fighters from approaching the bombs too soon after they had fallen.
The second indictment, that on which the defendants were found guilty, charged them with conspiracy, over a period from March 1, 1942, until June 10, 1943, to defraud the United States in its prosecution of the war by defective production of bombs and grenades, by misrepresentations of the munitions to United States inspectors stationed at the plant, by employment of schemes to avoid compliance with specifications, and by presentment of false claims to the United States, as prohibited by the false-claims statute, 18 U.S.C.A. § 80. It alleged many overt acts, most of which consisted of instructions given the employees to use fewer than the required number of increments and to mismark munitions, while others were based on employment of rejected materials, clustering of defective bombs, and making of false invoices and certificates by the defendants themselves.
To support the indictment, the government relied primarily upon the testimony of employees of the defendant corporation and of government inspectors located at the plant. That there was defective manufacturing was thoroughly established; that it reached truly appalling amounts seems likewise clear. This was shown by the testimony and report of a disinterested X-ray specialist, who stated that in tests of Antonelli products, made at random and thus fairly representative of the entire output, he found that out of 777 steel-jacket bombs, only 291 contained four increments, and that out of a total of 272 magnesium bombs tested, none contained four increments and only 23 contained three increments. Similarly shocking results were reported as a result of visual testing by the Chief of the Incendiaries Branch, Chemical Warfare Service. Indeed, the defendants did not seriously dispute the fact of extensive misproduction, but rather contended that the deficiencies were entirely accidental and due to the sudden necessity of mass production, or that, if any criminal intent did exist, it was entirely on the part of subordinate employees.
It is quite clear, however, that the jury was justified in concluding otherwise. Two witnesses, one a government inspector and the other a plant employee, testified that they had seen Antonelli himself take rejected grenades out of their box and place them in the outgoing line of production; and five witnesses were equally positive as to observation of similar acts on the part of Barbollo or the DeRitis brothers. The testimony by plant workers that defendants had instructed them to use fewer than the specified number of increments (at times warning them to use the full number in the presence of government inspectors) and to use rejected bombs and grenades was so abundant that detailed review is impracticable and unnecessary. It is sufficient to say by way of summary that a foreman, together with two subordinate employees, testified that Antonelli personally instructed them either to use rejected material, or to omit the specified charges, or both; that five witnesses testified to receiving similar instructions from Joseph DeRitis, and two from John DeRitis. One witness stated that John DeRitis promised her a raise for turning out more work by using a deficient number of charges, and that in her presence he told the defendant Piteo to see that his instructions were carried out. Two employees testified that their production rate was literally doubled by use of an insufficient number of increments.
The verdict as to each defendant was therefore amply supported by the evidence. It is true, as defendants point out, that there were other employees who testified that they had been exhorted to produce in accordance with specifications; but questions of credibility are for the jury. There was express testimony by an impressive array of employees to support the conviction. And additional credence is afforded the jury's conclusion by the extent of the defective manufacturing, so great as to cast serious doubts on the asserted obliviousness of the corporate officials to what was going on, and by the further fact that they, and not the workers, who were paid by the hour, stood to gain from the fraud.
Turning, therefore, to the defendants' extensive assignment of errors as to the conduct of the trial, we dismiss at the outset their contention that the consolidation of the two indictments itself constituted reversible error. The summary of the indictments and of the testimony already given amply demonstrates the near identity of the defendants, the similarity of the offenses charged, and the necessarily overlapping nature of the evidence in support of each. The facts of the case place it well within the terms of 18 U.S.C.A. § 557, authorizing consolidation when "there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together." See United States v. Smith, 2 Cir., 112 F.2d 83; McNeil v. United States, 66 App.D.C. 199, 85 F.2d 698; Federal Rules of Criminal Procedure, Rules 8, 13, and Advisory Committee Notes thereto. It has been repeatedly held that the question of consolidation is one for the trial court, and that its decision will be reversed only for abuse of discretion. United States v. Lotsch, 2 Cir., 102 F.2d 35, certiorari denied Lotsch v. United States, 307 U.S. 622, 59 S. Ct. 793, 83 L. Ed. 1500; United States v. Perlstein, 3 Cir., 120 F.2d 276; Firotto v. United States, 8 Cir., 124 F.2d 532; Jarvis v. United States, 1 Cir., 90 F.2d 243, certiorari denied 302 U.S. 705, 58 S. Ct. 25, 82 L. Ed. 544; United States v. Silverman, 3 Cir., 106 F.2d 750.
We can find no abuse of discretion, but rather a wise employment of judicial economy, in the consolidation ordered here.And the joint trial was admirably conducted, for the court took great pains to keep the charges separate, summariziang to the jury each indictment and the related statutes and emphasizing the difference in proof required to support conviction in each case. True, defendants with some ingenuity assert the presence of special reasons against consolidation in this case because of alleged "inflammatory elements" in the first indictment. But the other charge, that of defrauding the government in its war effort, cannot be considered devoid of emotional content in the setting of May and June, 1944; and the difference between the two can be one only of degree, not justifying the duplicating of the substantially similar evidence in separate trials. Actually the jury acted with discrimination in holding the defendants on the lesser, and more clearly proven, charge; and the defendants not only were not harmed, but were probably materially advantaged by the consolidation.
We reach a like conclusion as to defendants' vigorous contention that the court erred in denying the motion of the corporation and its president for the suppression and return of certain records which, they allege, were acquired through illegal search and seizure. It appeared from the evidence that sometime at the end of May or beginning of June, 1943, an agent of the Federal Bureau of Investigation called at the office of the Antonelli Fireworks and was granted permission by Simon, its office manager, to examine certain corporate records. Defendants' present argument as to the illegality of the search is based upon their contention that Simon was not in a position to consent on behalf of the corporation. It is difficult to see, however, how the federal agent could have obtained permission from a more proper individual, since Simon appears to have been in sole control of both the office and the records. Raine v. United States, 9 Cir., 299 F. 407, certiorari denied 266 U.S. 611, 45 S. Ct. 94, 69 L. Ed. 467. Simon himself testified that Antonelli had vested in him complete supervision of the books, and that any corporate officer would have had to obtain either his permission or that of Antonelli in order to take them. Any doubt as to Simon's original authorization, however, must be dispelled by the course of later developments, since shortly after the event in question Simon related it to Antonelli, who not only made no objection, but expressly approved his action. Since the original search was therefore not improper, there can be no objection to Simon's later production under subpoena of the same records or of records whose existence was so discovered. The subpoena was entirely reasonable in its demands; and Simon, being in actual control of the books, was properly called upon to produce them.In re National Public Utility Investing Corporation, 2 Cir., 79 F.2d 302; In re Sykes, D.C.S.D.N.Y., 23 Fed.Cas. page 579, No. 13,707; In re Hirsch, C.C. Conn., 74 F. 928, affirmed 2 Cir., 87 F. 1005; Re Sperry's Will, 138 Misc. 549, 247 N.Y.S. 202. Its direction to him as manager of Antonelli Fireworks was entirely proper. Note, 53 A.L.R. 86, and case cited. That he may no longer have held such office at the time of service is not significant if the books were actually in his control, since the government was entitled to force their production; and the only issue was whether the mandate therefor reached the person with power to produce them.
These and other issues were considered by the District Court on motion before trial and disposed of in a careful and discriminating opinion reported in 53 F.Supp. 870.As a matter of fact, the court did order the return of papers seized in Antonelli's house; and they are not involved here. And the court correctly pointed out that as to corporate papers the right to object was available only to the corporation. United States v. DeVasto, 2 Cir., 52 F.2d 26, 29, 78 A.L.R. 336, certiorari denied DeVasto v. United States, 284 U.S. 678, 52 S. Ct. 138, 76 L. Ed. 573. The objections to the admission of this material in evidence were restated the trial and, after extensive testimony of Simon and the FBI agents, were again overruled. In all this there was no error, but careful consideration of the rights of the accused.
Various objections are made to the summation by the prosecuting attorney. We have examined each of these with care and feel that they are of the type described by us in United States v. Dubrin, 2 Cir., 93 F.2d 499, 506, certiorari denied Dubrin v. United States, 303 U.S. 646, 58 S. Ct. 644, 82 L. Ed. 1107, as the not unusual attempt to turn the trial of the accused into a trial of government counsel. Certainly the first objection based upon counsel's reference to certain letters in evidence, merits little discussion. One was defendant Antonelli's letter to a district official of the Chemical Warfare Service, stating that, unless the rent for the land on which the factory stood was increased from $50 to $150, he would be sued by the owner, one Mrs. DeRitis. The other was a letter from the contracting officer of the Service relating to Antonelli's request for $875 monthly as storage for component parts owned by the government. Counsel in summation merely brought out what had already appeared without objection in evidence, namely, that the allegedly pressing creditor of the first letter was actually Mrs. Amerigo Antonelli, DeRitis being her name from a former marriage, and that the $875 monthly storage demanded was exorbitant in view of the fact that the rent being paid by the corporation for its entire premises was $130 per month. In the light of the charges here involved, it was quite appropriate, if not important, that the evidence before the jury as to defendants' attitude towards the government, including attempts to overreach in negotiations with it, should be emphasized.
Equally unmeritorious under the circumstances here are defendants' objections to certain expressions by the prosecutor of belief in the government's witnesses and in the guilt of the accused, and that the evidence established guilt beyond a reasonable doubt. While the summations of defense counsel were not reported, part of the challenged argument here was expressly stated as a reply to an assertion of a defense attorney that government counsel knew this to be a weak case; and the context shows this to be the quite natural response to that assertion. Defendants are now in no position to complain of what was thus invited. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 241, 242, 60 S. Ct. 811, 84 L. Ed. 1129. Of course this affirmation of belief merely put into words what the very fact of prosecution implied; and its effect on the jury was therefore remote at most. Meyer v. United States, 7 Cir., 258 F. 212, 215. Moreover, any possible error was cured by the forthright charge of the court instructing the jury at the outset to disregard these remarks of government counsel, since the fanction of determining such questions of fact was exclusively its own.
Finally much is made of the concluding sentence of the summation: "I cherish an overwhelming confidence, ladies and gentlemen, in the belief that each one of you, after you have been instructed by the Court, will each render your verdict without malice, but without sympathy, that you will each render a verdict of which you can always be produdly justified in the presence of your fellowmen, those here at home who labor and have labored unceasingly in an honest effort to manufacture munitions of war as well as those of us beyond the seas who look to us for the things they need to sustain them in their hour of extreme sacrifice."
Immediately thereafter the court invited, indeed pressed for, exceptions from the defendants ("Do you have something to say? I was waiting for you if you had something to offer," etc.) and, when they were made, promised to take care of the matter in its charge - a course apparently completely acceptable to the defendants, for they made no other suggestion. Then the court began its charge with extended directions to the jury, made with detailed particularity, to disregard in their entirely the remarks of government counsel as to our men overseas, to eliminate any prejudice or passion which might falsely be considered patriotism, and to do its duty by making an unbiased determination of the issues. This was fully acceptable to counsel at the time, as the exceptions made at the close of the charge concerned other matters entirely. Indeed, no motion for a mistrial, or suggestion of mistrial, was ever made. The defendants' attitude in fact is naively disclosed in the corporate defendant's argument, adopted by the other defendants, to the effect that, while the court "agreed" with the objections and "did attempt to at least lessen the awful effect of this inflammatory charge," "this charge did not have the hoped for effect," because the jury still found guilt. This was in spite of the fact that the jury came in with a question carefully discriminating between the indictments and eventually found guilt only upon the charge of defrauding the government. Hence the thought, now after the event, is that the summation was so objectionable as to be cured only by a verdict of not guilty! Moreover, the corrective charge was so sharp and complete and came so immediately after the summation as to be effective if any words of the judge could operate as a cure.The practical alternative now urged upon us is therefore quite clear; it is that these few words of the government counsel so thoroughly vitiated this long and patiently tried case that the judge could do nothing to save the situation, and that it was his duty to force a mistrial upon the parties even though it had not been requested.
Now had the judge not applied the extensive corrective measures he did, there would still be a question whether reversal would be required. Though the remarks were ill advised and overzealous, they seem insignificant when properly considered in their setting. In fact, by themselves they are no more than an admonition to the jurors to observe their oath of office and thus have the satisfaction of duty well done. They became objectionable only by association with the charge here, but that objection by association is offset by other circumstances. Thus, as government counsel had pointed out, while they had never once used the word "sabotage" and had attempted to avoid prejudice or instill in the jury "some special concern because of the war," yet the defendants had used it very much. Of course, trials in wartime are under the pressure of special emotions; but it is certainly not feasible to postpone all attempts to meet and correct defects in production as extensive as were here uncovered until the uncertain date of the war's close.That this language added anything to the natural feelings of Americans at that time is seriously to be doubted. In fact it shows little confidence in the intelligence of American jurors to imagine that these few inapt words at the end of a long trial could be an important adjunct to the prosecution's case, even had they remained unchallenged. But when the rebuke of the judge was swift and sure, there would seem no reasonable ground for attributing such emotional irresponsibility to this jury.
So far as we can discover, no case has compelled an order of mistrial, without prayer therefor, under circumstances at all comparable to this. In fact, in United States v. Socony-Vacuum Oil Co., supra, 310 U.S. 150, 237-243, 60 S. Ct. 811, 852, 84 L. Ed. 1129, the Supreme Court sustained, as "incidental statements during this long trial," not likely to influence the minds of the jurors, a much more extensive summation painting a sordid picture of a group of influential millionaires or billionaires who had taken over the power to make prices, disclosing that "a hundred lawyers," "the very cream of the American Bar," were working day and night to confuse the issues in the case for the defendants, and begging the jury not to fail the government or its highest officials who earnestly desired a conviction. So obviously the few questioned words in the present case are far from the tirade criticized in the majority opinion in Viereck v. United States, 318 U.S. 236, 247, 252, 63 S. Ct. 561, 87 L. Ed. 734 - where the trial judge had overruled the objection to the argument - or the pervasive and continuous misconduct of the prosecutor, without substantial hindrance from the judge, in Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314. And they are insignificant compared to the extensive and unchecked summation upheld in Ballard v. United States, 9 Cir., 152 F.2d 941, now before the Supreme Court.
Next, defendants assert error in the failure of the court to charge that the jury might draw a presumption against the United States from its failure to use at the trial certain witnesses which it had subpoenaed. All of the witnesses in question appear to have been employees at the plant with the exception of one, who was a government inspector there stationed. The prosecution produced on trial three government inspectors and a total of seventeen employees of the factory (in addition to the two defendants who pleaded guilty), some of whose testimony was in fact repetitious beyond the need for corroboration. There is not the slightest indication, nor may we indulge in any presumption, that the witnesses not called were in any better position to have observed operations at the plant than those who were, or that their testimony would be anything more than cumulative. In such a case we have held that no adverse presumption may be drawn. De Gregorio v. United States, 2 Cir., 7 F.2d 295, 296.See also 2 Wigmore on Evidence, 3d Ed. 1940, § 287. Nor is there any reason to disagree with the court's statement that the witnesses were equally available to both sides, in which case the authorities are also clear that no unfavorable presumption may be drawn. Egan v. United States, 52 App.D.C. 384, 287 F. 958; Moyer v. United States, 9 Cir., 78 F.2d 624.*fn3
Defendants' claim of error in the court's charge as to character evidence is perhaps their most important one, for it has some appearance of support from the precedents. Defendant Antonelli introduced six witnesses - two of them ministers, three business men, and one a minor government offical - all of whom stated that Antonelli had a good reputation in regard to honesty and integrity, and two of whom also spoke as to his character. Since defense counsel made no request for a charge on character testimony, the court was not required to charge on the subject. Kreiner v. United States, 2 Cir., 11 F.2d 722, 731, certiorari denied 271 U.S. 688, 46 S. Ct. 639, 70 L. Ed. 1152; United States v. Kelley, 2 Cir., 105 F.2d 912, 918; Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522. It did, however, so charge in these words: "A number of witnesses have testified here as to the reputation of Antonelli and Costanza for truth, veracity, honesty and integrity. These are known as character witnesses. Evidence or good character is not in and of itself sufficient to raise a reasonable doubt as to the guilt of any defendant except when, in the judgment of the jury, the defendant's character is so good as to raise a reasonable doubt of the positive evidence against him." Defendants now claim that this charge constituted reversible error in the light of Edgington v. United States, 164 U.S. 361, 366, 17 S. Ct. 72, 41 L. Ed. 467. But an extensive review of the authorities has not so convinced us.
As we stated in Kreiner v. United States, supra, again in Nash v. United States, 2 Cir., 54 F.2d 1006, certiorari denied 285 U.S. 556, 52 S. Ct. 457, 76 L. Ed. 945, and more recently in United States v. Kelley, supra, all that the Edgington case holds is that the trial court must not tell the jury to consider the character evidence only when the scales are already in balance."But if the judge avoids that pitfall, as here he did, he has as many variants among which to choose as he has in general; evidence of good character is to be used like any other, once it gets before the jury, and the less they are told about the grounds for its admission, or what they shall do with it, the more likely they are to use it sensibly." Nash v. United States, supra, 2 Cir., 54 F.2d 1006, 1007. Here the charge was cryptic and abbreviated; but it did not directly run afoul of the Edgington pitfall. It appears to have been an attempt to suggest to the jury the degree and weight of character evidence sufficient to raise a reasonable doubt, though in total effect it is hardly more than the statement of a truism.
The case thus differs from Oppenheim v. United States, 2 Cir., 241 F. 625, where the court expressly told the jury that the character testimony could create a reasonable doubt only if the evidence were nearly evenly balanced, and from such cases in other circuits as United States v. Quick, 3 Cir., 128 F.2d 832, and Gold v. United States, 3 Cir., 102 F.2d 350, where the court refused to give correct charges based on the Edgington case and requested by defense counsel; from Colbert v. United States, App.D.C., 146 F.2d 10, where the court inadvertently failed to give such a requested charge in a doubtful case where the only witness as to defendant's guilt was an accomplice; from Miller v. United States, 10 Cir., 120 F.2d 968, where the court limited the jury's consideration of character evidence to one part of the case; and from Perara v. United States, 8 Cir., 235 F. 515, where the court indulged in prejudicial remarks as to the unreliability of public opinion as to character. Indeed other circuits have gone far beyond the requirements of the present case to sustain trial courts in refusing to give the Edgington charge even when requested and merely instructing the jury to consider the evidence or to give it such weight as it saw fit. Mannix v. United States, 4 Cir., 140 F.2d 250; Haffa v. United States, 7 Cir., 36 F.2d 1, certiorari denied 281 U.S. 727, 50 S. Ct. 240, 74 L. Ed. 1144. See also Capriola v. United States, 7 Cir., 61 F.2d 5, certiorari denied Walsh v. United States, 287 U.S. 671, 53 S. Ct. 315, 77 L. Ed. 579; Baugh v. United States, 9 Cir., 27 F.2d 257, certiorari denied 278 U.S. 639, 49 S. Ct. 34, 73 L. Ed. 554; United States v. Kushner, 2 Cir., 135 F.2d 668, 674, certiorari denied Kushner v. United States, 320 U.S. 212, 63 S. Ct. 1449, 87 L. Ed. 1850.
Here, too, not only was there no request to charge as to character evidence, but the only exception taken to the charge on this point was a purely general exception "to that portion of your Honor's charge that dealt with the effect of character witnesses," by the attorney for the corporate defendant. There was no objection from the accused directly interested. And the general objection was not such as to bring home to the experienced judge the point of the exception; had it done so "it is inconceiveable that he would not have made it abundantly plain at once that his language should not have been so construed or misconstrued." United States v. Bennett, 2 Cir., 152 F.2d 342, 346, now before the Supreme Court.
Defendants' final contention is that of repugnancy in the verdict. In view of the charges in each indictment, it seems to us entirely logical for the jury to have found guilt in one case and not in the other. As the trial court correctly informed it, the finding of either intent or reason to believe that their acts would deter the government in its war effort, necessary to have held the defendants guilty under the first indictment, was not essential to conviction under the second. The jury, when returning to the courtroom for further instructions, showed that this distinction was considered, for the question asked was whether, if the evidence showed no intent to hinder the war effort, but knowledge of defects, such a finding required dismissal of the first indictment.Its eventual verdict appears, then, as the product of discrimination, rather than illogic. This justification of the result, although obvious, is by no means necessary, however, since it has long been established that an appellate court will not reverse for a seeming inconsistency in the verdict. Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356, 80 A.L.R. 161; Selvester v. United States, 170 U.S. 262, 18 S. Ct. 580, 42 L. Ed. 1029; United States v. Dotterweich, 320 U.S. 277, 64 S. Ct. 134, 88 L. Ed. 48; United States v. Pandolfi, 2 Cir., 110 F.2d 736, certiorari denied Pandolfi v. United States, 310 U.S. 651, 60 S. Ct. 1103, 84 L. Ed. 1416.
We have thus examined with care each assignment of error by itself and apart from its connection with the entire case. For, under our system of law, defendants are entitled to a new trial, however guilty they may be, if error affecting their substantial rights has occurred in any particular. Bollenbach v. United States, 66 S. Ct. 402. And we find no such error in this record. But, further, in a trial of this length and complexity, it seems peculiarly important to consider the over-all fairness of the trial as a whole; for the ultimate test of trial by jury is the fairness of the process, rather than the success of the result, which by hypothesis never can be known with ultimate assurance. Indeed, the Supreme Court has attempted to gauge the total effect of the trial in determining the necessity of reversal in particular instances. Thus, in United States v. Socony-Vacuum Oil Co., supra, 310 U.S. 150, 239, 60 S. Ct. 811, 852, 84 L. Ed. 1129, the Court points out that "this was not a weak case, as was Berger v. United States," supra, in holding reversal unnecessary for the summation of government counsel. And the rules of criminal procedure, which have just taken effect, preserve the statutory admonition against reversals for errors which do not affect substantial rights. Federal Rules of Criminal Procedure, rule 52(a), restating the substance of 18 U.S.C.A. § 556 and 28 U.S.C.A. § 391. This is particularly instructive because of the fact that certain members of the Advisory Committee recommended a rule of compulsion of reversal for "plain error" even though not claimed, and their suggestion was rejected by the full Committee and the Court. See Preliminary Draft of Federal Rules of Criminal Procedure, 1943, Supp. pp. 258, 262, and ...