Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.
A jury convicted defendant Morris under a conspiracy count in a three-count indictment which, in substance, charged Morris and Richard (Dixie) Richmond with unlawful possession of counterfeit $20 Federal Reserve Notes and intent to pass, utter, publish and sell. Count I charged these men with possession of one such $20 note, count II alleged possession in each of them of five thousand $20 notes, and count III, charged Morris and Richmond with conspiracy to pass, utter, publish and sell, with intent to defraud and with possession, with intent to defraud of $100,000 in counterfeit $20 notes. Found not guilty on counts I and II, Morris was sentenced to the custody of the Attorney General for 5 years on count III. Jury disagreements terminated two previous trials of Morris under this same indictment originally filed June 3, 1949. His co-defendant Richmond entered a guilty plea and received punishment of 10 years imprisonment.
In this appeal, defendant asks us to enter a judgment of acquittal because of (i) certain asserted erroneous rulings of evidence concerning acts, and declarations of an alleged conspirator in Morris' absence and because, it is urged, no proof aliunde of the conspiracy has been established, (ii) challenged instructions, (iii) the trial judge's remarks to jurors on voir dire examination and, (iv) refusal to allow defendant's motion for judgment of acquittal interposed at the close of all evidence and after the jury's verdict.
When reviewing this record mirrored against defense assignments of error, a marginal note once adopted by Judge Leahy comes to mind; "'The picture of conspiracy as a meeting by twilight of a trio of sinister persons with pointed hats close together belongs to a darker age.'"*fn1 Indeed, there is an undisputed line of cases demonstrating that evidence of an express agreement among alleged coconspirators is unnecessary. "It is seldom capable of proof by direct testimony and may be inferred from the things actually done.It is enough if the minds of the parties meet and unite in an understanding way with the single design to accomplish a common purpose, which may be established by circumstantial evidence or by deduction from facts from which the natural inference arises that the overt acts were in Furtherance of a common design, intent and purpose." United States v. Gordon, 7 Cir., 1943, 138 F.2d 174, 176; Phelps v. United States, 8 Cir., 1947, 160 F.2d 858, 867, reflects yet another facet of this same reasoning: "Such a joining of intentions into a conspiracy may, and ordinarily only can, be established by inference from evidence of relationships and conduct and other probative circumstances."
From the evidence favorable to the Government, the jury could reasonably have believed that the following acts and events took place. A government informer, Jack Richter, was introduced to Morris by Bob Aldrich, a bookie, in February, 1949, at the Chicago Steak House in Los Angeles, California. Having said "hello" to Morris, the witness' testimony, related without objection, best describes what followed:
"Q. Well, did Aldrich have a conversation with him in your presence? A. Yes. Aldrich told Mr. Morris that I was the man who was going to take the counterfeit money, and * * *
"Q. Mr. Morris reminded him that any counterfeit money that was dealt in had to be dealt in $50,000 bundles." (T.R. 24).
Several days before his initial introduction to Morris, Richter, Morris and Aldrich were sitting at a bar, Richter was seated next to Aldrich, one stool away from Morris, and Richter overheard and related this conversation from the witness chair:
"Mr. Morris told Bob Aldrich that he had some counterfeit $10 bills, and asked him if he knew someone who wanted to buy them, or if Bob Aldrich wanted to handle them himself." (T.R. 25).
Richter further said that when he over-heard that conversation the bartender and Dixie Richmond, co-defendant, were present. After his first meeting with Morris, Richter had several conversations with Richmond. On April 15, 1949, Richter received government exhibits 1, 1A, and 2, consisting of the following envelope, letter and a counterfeit $20 bill.
"Special Air Mail Los ...