1. Petitioner and one Bennett were tried before a jury for a
conspiracy to violate the statute and regulations governing the
rationing of gasoline. It was charged that petitioner would steal
gasoline ration coupons from the bank where she was employed,
transfer them to Bennett, and share with him the proceeds of their
sale. The evidence was conflicting, and the case against petitioner
was a close one. It appeared that she and three others had access
to the box from which the coupons were stolen. Over objection of
her counsel, the judge charged the jury: "Did she steal them? Who
did if she didn't? You are to decide that." She was convicted.
Held that the probabilities of confusion in the minds
of the jurors as to the burden of proof were so great and the
charge was so vital to the crucial issue in the case as to
constitute prejudicial error, and the conviction is reversed. Pp.
328 U. S.
636-639.
Page 328 U. S. 634
2. An erroneous ruling which relates to the substantial rights
of a party is ground for reversal unless it affirmatively appears
from the whole record that it was not prejudicial. P.
328 U. S.
638.
3. It is not enough for this Court to conclude that guilt may be
deduced from the whole record, since such a course would lead to
serious intrusions on the historic functions of the jury under our
system of government.
Bollenbach v. United States,
326 U. S. 607. Pp.
328 U. S.
638-639.
152 F.2d 342 reversed.
Petitioner was convicted under § 37 of the Criminal Code of a
conspiracy to violate the statute and regulations governing the
rationing of gasoline. The Circuit Court of Appeals affirmed. 152
F.2d 342. This Court granted certiorari. 327 U.S. 771.
Reversed, p.
328 U. S.
639.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner and one Bennett were convicted of a conspiracy
[
Footnote 1] to violate the
statute and regulations governing the rationing of gasoline.
[
Footnote 2] It was charged
that between July 1, 1943 and September 6, 1944, petitioner would
steal gasoline ration coupons from the First National Bank of
Poughkeepsie, New York, where she was employed, transfer them to
Bennett, and share with Benett the
Page 328 U. S. 635
proceeds the the sale. The case was tried to a jury. Petitioner
alone appealed the Circuit Court of Appeals, which sustained the
judgment of conviction, one judge dissenting.
United States v.
Bennett, 152 F.2d 342. The sole question presented below and
here is whether a portion of the charge constituted reversible
error. We granted the petition for a writ of certiorari because the
charge given raised an important question in the administration of
the federal criminal laws.
The crucial issue, so far as petitioner's case was concerned,
was whether she stole the ration coupons from the bank.
Bennett did not take the stand. Statements made by him out of
court were introduced. They implicated petitioner in the scheme.
But they were admissible against Bennett alone, not against
petitioner. And the trial judge so ruled. Two of Bennett's
relatives -- his mother-in law and sister-in law -- testified
concerning conversations they had had with petitioner. Their
versions of the conversations implicated petitioner in the scheme.
Petitioner's version was different. The conflict in testimony
presented a question of credibility for the jury. Bearing on that
was the possible bias of those witnesses, traceable in part to
their hostility to petitioner on account of the fact that she
apparently had been on intimate terms with Bennett prior to his
marriage.
There was no direct evidence that petitioner had stolen the
coupons. There was, however, other evidence from which such an
inference could be drawn. It assumed a place of considerable
importance at the trial. And the alleged error in the charge
relates to it.
Petitioner handled ration coupons which merchants deposited with
the bank. The ration coupons were received by tellers for deposit.
After the coupons had been received for deposit by the tellers,
petitioner checked the
Page 328 U. S. 636
deposits against the deposit slips and kept the rationing
records. After counting the coupons and making the entries, she
placed the coupons in a steel file which was locked. The keys to
the file were kept in her desk, which was not locked. At regular
intervals, petitioner would take the accumulated ration coupons and
box them for transmission to the Office of Price Administration.
She would also prepare a form showing the contents of the box. In
preparing this form, she would not recount the coupons, but would
compile the figures from the daily records which had been prepared
as the coupons were deposited. On September 5, 1944, petitioner
prepared a box for transmission to the Office of Price
Administration, sealed it, and turned it over to the cashier of the
bank. The accompanying form represented on its face that the box
contained gasoline ration coupons for some 156,000 gallons. Its
examination showed a shortage of some 37,000 gallons. Petitioner
had a good record at the bank. The accounts which she kept were
kept well and accurately. She was not the only one who had access
to the coupons in the steel file. At least four other employees of
the bank had equal access to that file. One of these was a lady
with whom, according to petitioner's testimony, Bennett had a
rather intimate acquaintance.
The case against petitioner was therefore a close one. Plainly
there was sufficient evidence for submission of the case to the
jury. But, since one of four other persons might have purloined the
coupons, reasonable doubt as to petitioner's guilt might readily be
inferred.
It was against this background that the trial judge charged the
jury:
"Who would have a motive to steal them? Did she take these
stamps? You have a right to consider that. She is not charged with
stealing, but with conspiracy to do all these things, and you have
a right
Page 328 U. S. 637
to consider whether she did steal them, on the question of
intent.
Did she steal them? Who did if she didn't? You are to
decide that."
(Italics added)
Counsel excepted to the charge on the ground that it was not
"the jury's duty to find out who did steal the stamps." No
modification of the charge was made.
We assume that the charge might not be misleading or confusing
to lawyers. But the probabilities of confusion to a jury are so
likely (
cf. Shepard v. United States, 290 U. S.
96,
290 U. S. 104)
that we conclude that the charge was prejudicially erroneous.
Instructions to acquit if there was reasonable doubt as to
petitioner's guilt were given in other parts of the charge. Those
were general instructions. They would be adequate, standing alone.
But, on the crucial issue of the trial -- whether petitioner or one
of four other persons stole the coupons from the bank -- no such
qualification was made, and the question was so put as to suggest a
different standard of guilt. As stated by Judge Frank in his
dissenting opinion below:
"Literally interpreted, the judge's charge told them that this
was not sufficient to justify acquittal, for it was their 'duty'
(a) to decide that appellant committed the theft unless (b) they
decided that some other specific person did. So interpreted, this
charge erred by putting on appellant the burden of proving her
innocence by proving the identity of some other person as the
thief."
152 F.2d at 348. Or, to put the matter another way, the
instruction may be read as telling the jurors that, if petitioner
by her testimony had not convinced them that someone else had
stolen the ration coupons, she must have done so. So read, the
instruction sounds more like comment of a zealous prosecutor,
rather than an instruction by a judge who has special
responsibilities for assuring fair trials of those accused of
crime.
See Quercia v. United States, 289 U.
S. 466,
289 U. S.
469.
Page 328 U. S. 638
The "harmless error" statute, [
Footnote 3] Judicial Code § 269, means that a criminal
appeal should not be turned into a quest for error. It does not
mean that portions of the charge are to be read in isolation to the
full charge and magnified out of all proportion to their likely
importance at the trial.
Boyd v. United States,
271 U. S. 104,
271 U. S. 107.
Yet, as stated in
McCandless v. United States,
298 U. S. 342,
298 U. S.
347-348,
"an erroneous ruling which relates to the substantial rights of
a party is ground for reversal unless it affirmatively appears from
the whole record that it was not prejudicial."
It seems plain that the inflection or tone of voice used in
giving the challenged instruction could make it highly damaging.
And, in any event, the probabilities of confusion in the minds of
the jurors seem so great, and the charge was so important to the
vital issue in the case, that we conclude that prejudicial error
was committed. We certainly cannot say from a review of the whole
record that lack of prejudice affirmatively appears. While there
was sufficient evidence for the jury, the case against petitioner
was not open and shut. Since the scales were quite evenly balanced,
we feel that the jury might have been influenced by the erroneous
charge. Hence, we cannot say it was not prejudicial and hence treat
it as a minor aberration of trivial consequence. Nor is it enough
for us to conclude that guilt may be deduced from the whole
record.
Page 328 U. S. 639
Such a course would lead to serious intrusions on the historic
functions of the jury under our system of government.
See
Bollenbach v. United States, 326 U. S. 607.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
Criminal Code § 37, 18 U.S.C. § 88.
[
Footnote 2]
Sec. 2(a) of the Act of June 28, 1940, 54 Stat. 676, as amended,
55 Stat. 236, 56 Stat. 177, 50 U.S.C. App. Supp. IV, § 633; § 2.6
of General Ration Order No. 8, as amended, 8 Fed.Reg. 9626, 9
Fed.Reg. 1325, 2746.
[
Footnote 3]
"On the hearing of any appeal, certiorari, . . . or motion for a
new trial, in any case, civil or criminal, the court shall give
judgment after an examination of the entire record before the
court, without regard to technical errors, defects, or exceptions
which do not affect the substantial rights of the parties."
The Federal Rules of Criminal Procedure, effective March 21,
1946, provide that "[a]ny error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded."
Rule 52(a). This is merely a restatement of existing law and
effects no change in the "harmless error" rule.
MR. JUSTICE BLACK dissenting.
The jury found this defendant guilty beyond a reasonable doubt
after the trial judge had charged that:
"A defendant is not required to establish his innocence, but the
Government must establish guilt beyond a reasonable doubt. If the
facts and circumstances surrounding the case are as consistent with
innocence as with guilt, he is not guilty."
Six other times, the judge explicitly charged the jury to the
same effect: the defendant's innocence is presumed; she need not
prove it; the burden is on the Government to prove her guilt beyond
a reasonable doubt. Yet the Court now reverses on the ground that
the jury might conceivably have taken three sentences in the trial
judge's charge to mean that the defendant must prove innocence,
which conceivably might have led the jury to believe that the court
might have intended to withdraw his seven explicit instructions to
the contrary. The three sentences were: "Did she steal them? Who
did if she did not? You are to decide that." Instructions such as
these as to who stole the coupons were necessary because of the
petitioner's defense that somebody else had taken them. The trial
judge was obviously telling the jury not to ignore the petitioner's
defense. No reference was made to burden of proof, and no ordinary
juror, unskilled in legal dialectics, would have suspected the
latent ambiguity which the Court has discovered. Of course,
hypercritical
Page 328 U. S. 640
scrutiny of each word and sentence in every charge when
considered alone would always reveal dual meanings. The sentences
here in question, like the sentences in every charge, should be
given a common sense interpretation in their relationship to all
instructions and the issues raised. When so considered, it is
impossible for me to believe that the jury was confused as to
burden of proof. Seven correct explicit instructions should not be
considered neutralized by legalistic inferences established by
purely formal analysis.
MR. JUSTICE REED and MR. JUSTICE BURTON join in this
dissent.