Escolar Documentos
Profissional Documentos
Cultura Documentos
2d 212
completed. Defense counsel had argued to the jury that the amount of defective
work disclosed by the testimony was small in relation to the vastness of the
project, and that since the government proved no other defects, despite the great
amount of data it must have possessed about the project, it could reasonably be
assumed that no other defects were chargeable to Tucker. In replying to this
argument the prosecutor first suggested that about three-fourths of Tucker's
testimony had been false, from which he argued that it could be inferred that
Tucker had actually received several times as many gifts as he had mentioned
on the witness stand. Then the prosecutor proceeded as follows:
3
"The Government has been criticized for the fact that we haven't brought in
more deficiencies at the Tobyhanna Signal Depot. This is only a small part of
the deficiencies there." Here was the plainest misuse of final argument to
introduce prejudicial new evidence from the lips of the prosecutor himself,
though he was not under oath and not subject to cross-examination. Cf. United
States v. Spangelet, 2 Cir., 1958, 258 F.2d 338; Nalls v. United States, 5 Cir.,
1957, 240 F.2d 707; Snipes v. United States, 6 Cir., 1956, 230 F.2d 165.
There was a second occurrence of the same kind during the closing arguments.
There had been evidence that an independent private firm, rather than
subordinates under the supervision of the defendant, had been entrusted with
the large responsibility of day by day inspection of the many details of work in
progress at Tobyhanna. Defense counsel argued to the jury that there had been
no evidence that these inspectors had reported defects to the defendant which
he had ignored. It was also argued that it would have been difficult for the
"There is also an attempt here to lay all the blame on the Architect-Engineer
and blame all these other people, and Mr. Sheridan says: `Where are they?' I
will tell you where they are. They are under indictment. This man Gilboy is
under indictment; Mr. Raff is under indictment; Mr. Brown of the Consolidated
Construction Company is under indictment; Mr. Kemmel, the painter, is under
indictment, and Mr. Laurelli was indicted. I mean, we are doing all we can. We
have got about fourteen of them out there."
We are unable to escape the conclusion that these prejudicial statements by the
prosecutor to the jury constituted reversible error and require that this case be
remanded for a new trial. Turner v. United States, 8 Cir., 1929, 35 F.2d 25;
People v. Ford, 1948, 89 Cal.App.2d 467, 200 P.2d 867.
Finally, we rule without discussion upon a contention that the defendant was
compelled to be a witness against himself before the grand jury which
subsequently indicted him. The record does not sustain this contention.
11
The judgment will be reversed and the cause remanded for a new trial or such
other proceedings as may be consistent with this opinion.