Before LUMBARD, Chief Judge, and HAND and FRIENDLY, Circuit Judges.
Maybury was indicted in the Eastern District of New York on two counts. Both related to a United States Treasury check for $68 payable to Abraham Kohl. The first count charged that, for the purpose of obtaining or receiving money from the United States, Maybury forged Kohl's name on the reverse of the check in violation of 18 U.S.C. § 495; the second charged that, in violation of the same section, Maybury uttered the check with intent to defraud the united States, knowing the endorsement to have been forged. Maybury was tried before Judge Abruzzo, jury trial having been waived.
It was stipulated that the check was a duly issued Treasury check; that it had been mailed by the government to Abraham Kohl, the payee; and that if Kohl had been called as a witness, he would have testified that he had never received, signed or endorsed it or authorized anyone else to sign or endorse it on his behalf.The check was placed in evidence. On the reverse are the names "Abraham Kohl," "Joseph Maybury" and "William Kozin." There is much similarity in the writing of the names of Kohl and Maybury, but there was no expert testimony whether or not the names were written by the same hand.
A secret service agent identified a statement by Maybury giving the latter's version of what occurred. This was that the check had been in the possession of a man known to Maybury as Barney; that Maybury and Barney had been drinking in Casey's Steak House, a restaurant and tavern in Brooklyn; that after they "had been drinking on and off for about three days, at this tavern, Barney ran short of cash and asked the bartender to cash the subject check for him"; that "in view of the fact that Barney could not write too good, he, Barney, asked me to sign his name to the check"; that Maybury signed "the check for Barney who I believed was the rightful payee"; and that Maybury thereafter signed his own name as a second endorser at the bartender's request. In fact the check was cashed not by the bartender, but by Kozin, who was also in the tavern. Kozin testified that he had known Maybury for about a year as a fellow-patron of the tavern; that no one was with Maybury when Kozin cashed the check; and that Kozin did not know of any habitue of the tavern by the name of Barney.
Judge Abruzzo acquitted Maybury under Count I of the indictment, which charged forgery, but found Maybury guilty under Count II, which charged the uttering or publishing of a forged check with intent to defraud the United States, knowing the same to be forged.The appeal is from the judgment of conviction on this count.
Maybury contends the judgment of conviction must be set aside because the evidence was not sufficient to warant it and because the acquittal on the charge of forgery was inconsistent with the conviction on the charge of uttering a forged check knowing the same to be forged. The government says the evidence was sufficient. Answering the claim of inconsistency in the treatment of the two counts, it says, first, that decisions of this Court and the Supreme Court deprive the alleged inconsistency of legal consequence and, second, that in fact there was none. All of us hold the evidence was sufficient. But a majority of us reject the government's claim that the rule laid down by this Court in Steckler v. United States, 2 Cir. 1925, 7 F.2d 59, and by the Supreme Court in Dunn v. United States, 1932, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356, upholding jury verdicts in criminal cases despite inconsistency as between counts, applies when a criminal case has been tried to a judge, find that, on the facts here, the acquittal on the first count was inconsistent with the conviction on the second, and therefore reverse the conviction. As to thE EFFECT of this, more hereafter.
We said in United States v. Costello, 2 Cir., 1955, 221 F.2d 668, 671, affirmed 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397, citing many cases, that on a trial for crime "the prosecution makes out a sufficient case to go to the jury, if the evidence would have been enough in a civil action; the only difference between the two is that in the end the evidence must satisfy the jury beyond any reasonable doubt." In United States v. Dudley, 2 Cir., 1958, 260 F.2d 439, 440, we applied this same principle in a criminal case tried before a judge. Here the government's evidence would clearly have been sufficient to go to a jury in a civil case; and we must assume the trial judge instructed himself, "respectfully and with a proper show of deference," that he must be convinced beyond a reasonable doubt and dutifully complied with his own instruction.
The government says that, under our decision in Steckler v. United States, supra, and the Supreme Court's approval of this in Dunn v. United States, supra, inconsistency in the disposition of counts in an indictment is without legal significance. Recognizing that these cases dealt with inconsistencies in a jury verdict, the government contends the same principle ought be applied when a criminal indictment has been tried to a judge, and cites our language in United States v. Dudley, supra, that the waiver of a jury "substitutes the judge for the jury in all respects." The question seems to be one of first impression in this circuit and, so far as we have been able to discover, in others, except for McElheny v. United States, 1944, 146 F.2d 932, where the Ninth Circuit applied the Dunn jury verdict rule to a criminal trial before a judge without discussing whether the considerations were necessarily the same. Chief Judge LUMBARD and I believe that they are not and that the Dunn rule should not be extended to a criminal trial before a judge.
The Steckler and Dunn opinions show on their face that the decision to ignore inconsistencies in the verdict of a jury in a criminal case was based on special considerations relating to the nature and function of the jury in such cases rather than on a general principle to be applied even when these considerations were absent. This Court explained in Steckler (7 F.2d at page 60):
"The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity."
In Dunn, Mr. Justice Holmes quoted this with approval (284 U.S. at page 393, 52 S. Ct. at page 190) and added a reference to Horning v. District of Columbia, 1920, 254 U.S. 135, 138, 41 S. Ct. 53, 54, 65 L. Ed. 185, in which he had noted that in a criminal case "the jury has the power to bring in a verdict in the teeth of both law and facts." The vogue for repetitious multiple count indictments may well produce an increase in seemingly inconsistent jury verdicts, where in fact the jury is using its power to prevent the punishment from getting too far out of line with the crime. See United States v. Collins, 2 Cir., 272 F.2d 650.
The special considerations relating to the role of the jury go back to the very beginnings of the use of the jury as a mode of trial. Trial by jury came into being as an alternative not to trial by judge but to the ancient methods of compurgation and ordeal. The greatest historian of our law has remarked that from the outset there was an "arbitral" element in jury trial. "Both litigants have agreed to be bound by a verdict of the country"; each "has asked for it and by it he must stand or fall."*fn1 Professor Plucknett has made the same point in language especially pertinent here:
"At first, the jury was no more regarded as 'rational' than the ordeals which it replaced, and just as one did not question the judgments of God as shown by the ordeal, so the verdict of a jury was equally inscrutable. It is but slowly that ...