Berger v. United States, 295 U.S. 78 (1935)

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Berger v. United States

No. 544

Argued March 7, 1935
Decided April 15, 1935
295 U.S. 78

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

1. Where an indictment charges a conspiracy of several persons and the conspiracy proved involves only some of them, the variance is not fatal. P. 81.

2. Where the proof shows two conspiracies, each fitting the single charge in the indictment, and each participated in by some but not all of the convicted defendants, one of them who was connected by the evidence with one only of the conspiracies revealed by it has no ground to complain of the variance if it did not affect his substantial rights. Jud.Code § 269. P. 82.

3. The objects of the rule that allegations and proof must correspond are (1) to inform the accused, so that he may not be taken by surprise, and (2) to protect him against another prosecution for the same offense. P. 82.

4. The purpose of Jud.Code § 269, as amended, was to end the too rigid application of the rule that, error being shown, prejudice must be presumed, and to establish the more reasonable rule that if, upon an examination of the entire record, substantial prejudice does not appear, the error must be regarded as harmless. P. 82.

5. Misconduct of a United States Attorney in his cross-examination of witnesses and address to the jury, in a criminal case, may be so gross and persistent as to call for stern rebuke and repression -- even for the granting of a mistrial -- by the trial judge; and, when no so counteracted, it may required the reversal of a conviction, particularly when weakness of the case accentuates the probability of prejudice to the accused. P. 84.

6. It is as much the duty of the United States Attorney to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. P. 88.

73 F.2d 278, reversed.

Certiorari, 293 U.S. 552, to review the affirmance of a conviction and sentence for conspiracy.