author:
BELL, Circuit Judge:
      GEWIN, Circuit Judge

text:
    ADAMS MACHINE & TOOL COMPANY, INC., Plaintiff-Appellee, v. MFB MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 72-1322.
    United States Court of Appeals, Fifth Circuit.
    May 25, 1973.
    Rehearing and Rehearing En Banc Denied Aug. 13, 1973.
    Gewin, Circuit Judge, who would affirm, filed opinion concurring in part and dissenting in part.

      Sam F. Lowe, Jr., Atlanta, Ga., Oscar M. Smith, Rome, Ga., for defendant-appellant.
    John K. Morgan, Chattanooga, Tenn., Bobby Lee Cook, A. Cecil Palmour, Sum-merville, Ga., for plaintiff-appellee.
    Before GEWIN, BELL and GOD-BOLD, Circuit Judges.
   BELL, Circuit Judge:

This appeal arises out of a fire loss. The defenses were arson, increase of hazard, and fraud in the examination under oath. The jury returned a verdict for the plaintiff-insured in the amount of $1,038,945.00. Thereafter, the defendant-insurer (MFB), produced a witness who claimed that he participated with the president of plaintiff corporation in the alleged arson. A motion for new trial was granted as to liability only, the new trial ensued, and the verdict was again for plaintiff. This appeal followed. We find no merit in the assignments of error having to do with damages. We reverse for a new trial on liability only.

There was substantial evidence pointing to a fire which was incendiary in origin. The fire occurred in the early morning hours of May 27, 1969. Plaintiff corporation was engaged in the business of manufacturing metal parts of various types. The company had been successful but had run upon hard times by the time of the fire due principally to the cancellation of a large contract in contemplation of which expensive machinery had been purchased and installed.

The assignments of error go to liability as well as to damages. We will first dispose of the assignments of error which are without merit and as to which no discussion is warranted. The first of these is that the damage occurred because of arson caused or procured by Adams, the president of plaintiff company who owned 50 per cent of the corporate stock. (His wife owned the other 50 per cent of the corporate stock.) The argument is that the insurer carried the “heavy burden” referred to in Hanover Fire Insurance Co. of New York v. Argo, 5 Cir., 1958, 251 F.2d 80, and was therefore entitled to a directed verdict of no liability. It is clear to us that the evidence was disputed both as to the fire having been caused by arson, and also as to it having been procured by Adams. The dispute in each instance was of such substance as to warrant the submission of the question presented to the jury. The district court did not err in submitting the questions to the jury.

MFB also contends that plaintiff, through its officer Adams, committed fraud in the examinations under oath provision of the two fire insurance policies in question to the extent of voiding the policies. We have carefully examined this contention and its factual underpinnings. Our conclusion is that this issue was also due to be submitted to the jury. It was submitted and there was no error in doing so.

From the standpoint of liability this leaves for discussion two contentions which arise under the defense that the hazard was increased by means within the control or knowledge of plaintiff. These contentions have their genesis in the fact that the automatic sprinkler system was inexplicably turned off at the time of the fire.

It was possible to cut off the sprinkler system by closing a post indicator valve but it took 26 complete turns of a large metal handle to do so. The valve was on the outside of the building, adjacent to a street, and exposed to the public. On the Saturday before the fire on Tuesday, employees of plaintiff corporation found the valve in a closed position for the first time since the installation of the sprinkler system in 1965. Mr. Adams directed that the valve be opened, and he then put a padlock through a hasp so as to lock the handle in place. The padlock could be opened only by one key which Mr. Adams placed in a metal box located at a point about 60 feet from the valve, also on the outside of the building. He placed a paper tag on the key bearing the legend “Motorcycle Trailer.” He told only employees Andrews, Gordon, Smith, and Oliver of the location of the key. At the time of the fire, the fireman found the post indicator value in a closed position. The lock was in the hasp but unlocked. The key with tag attached was in the open lock. Employee Andrews saw the post indicator valve in an open position with the padlock in place on the Monday before the fire which occurred in the early hours of Tuesday.

The two policies of insurance in question provide that they are suspended: “(a) while the hazard is increased by any means within the knowledge or control of the insured; . . . ”.

One of these two assignments of error is based on the charge as it related to this provision. This error, as we perceive it, has two prongs. The focus of one lies in the instruction by the district court to the jury that the language of this increase in hazard clause, “by any means within the knowledge or control of the insured”, was to be construed as “means within the knowledge and control of the insured”. In so charging, the court apparently relied on the Georgia decision of Commercial Union Fire Insurance Co. v. Capouano, 55 Ga.App. 566, 190 S.E. 815 (1937), aff’d, 185 Ga. 303, 194 S.E. 521 (1937). In that case the Georgia Court of Appeals construed “or” as being synonymous with “and” in the context used on the reasoning that it could not be said that “a person had control of a thing of which he had no knowledge.” See also DiLeo v. United States Fidelity & Guaranty Co., 50 Ill. App.2d 183, 200 N.E.2d 405, 9 A.L.R.3d 1399, 1407 (1964). Assuming error in the conversion of “or” to “and” arguendo only, the short of the matter is that there was no objection to this charge as such.

The other prong is the position of MFB that it was entitled to a charge that a presumption arose that plaintiff had knowledge that the sprinkler system was off and was required to rebut the presumption by showing that it was off by some means which was not within either the knowledge or control of plaintiff. We think this charge was correctly refused. The theory of MFB is that plaintiff had such control overlthe valve as to give rise to the presumption. The answer to this contention is that, given the evidence, the jury could have found that plaintiff’s control over the valve was not exclusive. This answer is aside from the point whether there is any validity in the first place to the theory of such a presumption, a proposition which is asserted but not supported by authority.

The other assignment of error under the increase in hazard defense rests on the contention that the court submitted as an issue, over objection, whether the sprinkler system was in fact cut off at the time of the fire. The insurer’s argument is that this was an undisputed issue and that it was prejudicial to permit and direct the jury to decide an issue not in dispute. The vice of this error will be seen in the form of the interrogatory which was submitted to the jury:

“At the time of the fire on May 27, 1969, was the automatic sprinkler system cut off by a means within the control or knowledge of the insured?”

The jury was instructed to answer this question yes or no but it turned out that the question came in two parts. The court instructed the jury to first determine whether the sprinkler system was in fact cut off. Second, if off, the jury would go further and determine whether it was cut off by a means within the control or knowledge of the insured. The answer of the jury to the interrogatory was “no”, and this, in effect, was “no” to both questions.

The problem is that the evidence demanded a finding that the sprinkler system was cut off. Counsel for plaintiff announced in his opening statement: “We expect to show you that the sprinkler system was in fact turned off, and we don’t make any dispute about it . . .”. The trial judge was at pains to avoid error with respect to submitting this issue to the jury if, in fact, it was not an issue. In this connection, at the close of the evidence, the court inquired of plaintiff’s counsel as to whether counsel conceded that the sprinkler system was turned off at the time of the fire. The court alluded to the fact that at the first trial, counsel for MFB objected to the court having submitted this question as an issue to the jury. Counsel agreed to discuss the matter with co-counsel and report back to the court. The court reopened the inquiry shortly before charging the jury. Counsel for plaintiff then stated in something of a non sequitur, that “. . . we admit it as a matter of fact but not as a matter of law.” The court dropped the matter with the statement that there was some testimony from Mr. Wilde (the admitted arsonist), that the sprinkler system was on. After the charge and at the point where objections to the charge were being made, and after an objection had been filed to the submission of this issue to the jury, the court reiterated that Mr. Wilde testified that the sprinkler was on when the fire was set.

We have carefully considered the testimony of Mr. Wilde. His testimony at one point was that when he set the fire the sprinkler was on. He testified that he was assuming that the sprinkler system was on. He also testified that he, Adams and Newberry (Adams’ brother-in-law), did not turn the sprinkler system off. At another point he quoted Adams as saying that the fire would be so hot that there would be no need to turn the sprinkler off. However, he then testified that Adams told him, three days after the fire, that the first fire did not catch and that it was necessary for him (Adams) to return and start the fire over and that he (Adams) then turned the sprinkler system off.

The sum of Wilde’s testimony does not rise to the level of evidence which creates a dispute as to the sprinkler system being on. There was no basis for submission of the issue to the jury and it was thus error to submit this issue to the jury. See Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374, for the applicable standard.

We go further and consider whether the error was harmless. Absent the interrogatory, it is doubtful that the jury would have found under the evidence that the sprinkler system was turned on at the time of the fire. It can be argued that the jury simply was answering that the sprinkler system was not turned off by means within the knowledge and control of Adams rather than that it was not turned off at all. The answer to these arguments would seem to be that MFB would be entitled to a new trial had the jury found that the sprinkler system was not turned off. The result is the same under the form of the interrogatory and the answer thereto. Under the charge the jury was required to first determine whether the sprinkler was off. The import of the answer was that it was not cut off. Under these circumstances we cannot say that the error was harmless. The ease must be tried anew as to liability.

On the question of damages, there are no assignments of error as to the sum of $337,886.00 which was awarded for building and fixtures, inventory, and business interruption. (One of the two insurance policies in suit covered business interruption damages). The claimed error goes to the award attributable to machinery damage.

On this question, plaintiffs offered a witness, Mr. Tollefsrud of the American Appraisal Company, on the value of the machines which were damaged or destroyed in the fire. The measure of damages was the lesser of the actual cash value or the cost of repairing the machines. The witness had appraised the machines in January of 1968 as having an actual cash value of $314,466.96. For the purposes of the trial, he valued them as having an actual cash value of $812,455.00 at the time of the fire. It developed on cross-examination that the increased value came from two factors. The first was an actual increase in value due to an increase in the market price of used machinery of the types involved. He then added a second factor which appears to have been as high as forty per cent. He described this factor as being “fair market value for insurance settlement.” His idea was that the market price of machinery would be perforce increased because of plaintiff’s need for such an unusual number of used machines.

This method of valuing the machinery seems to exceed the measure of damages which obtained under the insurance policy and the charge of the court to the jury. That definition of actual cash value is as follows:

“. . . the fair or reasonable cash price for which the property could be bought or sold in the market in its condition at the time; . that is, the fair or reasonable cash price for which the property could be bought or sold in the market in the ordinary course of business, but not at a forced sale. . . . ”

Once this method of evaluation surfaced during cross-examination, counsel for MFB made no motion to strike the testimony nor was the court requested to give a limiting or cautionary instruction with respect to the testimony. Counsel relied instead on a previously made and continuing objection as to any testimony that exceeded the actual cash value of the machines.

Assuming a valid objection to this evidence, it was error not to exclude it. However, the question' remains whether this error was harmless. There was an abundance of testimony as to the value of the machines. Neither party to this appeal has favored us with a complete summation of the range of the testimony, but on motion for new trial as to damages, the district court concluded that the verdict with respect to the machines was well within the range of the evidence submitted. As an example, it was pointed out that the insurer’s witness valued the tools and dies located in the “tool crib” at substantially more than had plaintiff’s witnesses and that this was a part of the damages allowed for the machines. This difference was some $158,000.00. We note that there was evidence allowed as to the cost of new machines, the cost of rebuilding the old machines as new, and also the cost of repairs. Moreover, there was evidence showing the cost to Adams of the machine and this figure was quite low. In each instance the evidence was for such weight as the jury might wish to give it in arriving at actual cash value under the standard given in charge. Cf. D. H. Overmyer Warehouse Co. v. Kuniansky, 5 Cir., 1970, 419 F.2d 1280, on the propriety of the fact finder assessing damages within the range of the testimony. In our view the error in admitting the valuations of Tollefsrud was harmless.

Reversed and remanded for further proceedings not inconsistent herewith.

GEWIN, Circuit Judge

(concurring in part and dissenting in part):

In my view the majority has correctly decided that there is no merit in the specifications of error having to do with damages, and therefore, I concur in that portion of the opinion. With full respect for the views expressed by my Brothers of the majority I am in complete disagreement with the conclusion that there should be a new trial as to the issue of liability. In my considered judgment the majority has applied an incorrect standard of review and has abridged the seventh amendment right to trial by jury to which the plaintiff-appellee (Adams) is entitled under the facts of this case.

Against the stubborn and aggressive contentions of MFB Mutual Insurance Company (MFB) two juries have decided that Mr. Adams was not guilty of arson and that he did nothing to increase the hazard or chance of loss by fire. The evidence was developed in a lengthy trial by skillful and effective trial counsel for both parties. There were numerous witnesses and a large volume of exhibits. The evidence was in total conflict and presents a typical situation which requires a factual resolution of claims based on conflicting evidence.

The appropriate standard of review has recently been set forth clearly and unequivocally by this court in Griffin v. Matherne, 471 F.2d 911 (5th Cir. 1973) and reaffirmed in Colvin v. Dempsey-Tegeler & Co., 477 F.2d 1283 (5th Cir. 1973). We quote from the opinion in Griffin v. Matherne:

The Seventh Amendment requires that if there is a view of the case which makes the jury’s answers consistent, the court must adopt that view and enter judgment accordingly. Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798, 806-807 (1962). This court has stated that the test to be applied in reconciling apparent conflicts between the jury’s answers is whether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted, even though the form of the issue or alternative selective answers prescribed by the judge may have been the likely cause of the difficulty and largely produced the apparent conflict. R. B. Company v. Aetna Insurance Company, 299 F.2d 753, 760 (5th Cir. 1962). If on review of the district court’s judgment we find that there is no view of the case which makes the jury’s answers consistent and that the inconsistency is such that the special verdict will support neither the judgment entered below nor any other judgment, then the judgment must be reversed and the cause remanded for trial anew. Missouri Pacific Ry. Co. v. Salazar, 254 F.2d 847, 849 (5th Cir. 1958); Wright v. Kroeger Corporation, 422 F.2d 176, 178-179 (5th Cir. 1970).

471 F.2d at 915.

The interrogatory quoted in the opinion was the first one submitted to the jury. The necessity for that interrogatory arose from the defense vigorously asserted by MFB that Mr. Adams had increased the hazard or chance of loss by fire. It was asserted that he did so by deliberately cutting off the automatic sprinkler system. That issue occupied much of the trial time and evidence relating to it extended over numerous pages of the record. Moreover, the trial judge, thoroughly understood the issue and fully explained it with remarkable clarity in his instructions to the jury. Indeed, in my view, his instructions were very favorable to the defense asserted by MFB. We quote from the court’s instructions with reference to the interrogatory in question:

Now, the word ‘means,’ as used in this provision of the policy refers to a situation or a condition which increases the hazard or chance of loss by fire, here claimed to be the fact that the post indicator valve was closed or shut, preventing water from flowing into the sprinkler system.
Now, if you should determine that the sprinkler system was cut off at the time of the fire, then the Court instructs you that such condition would be a means which would increase the hazard or chance of loss by fire. However, the question is not just whether the valve was on or off, but it must be shown whether if off, such means were within the control or knowledge of the insured.
As used in this policy, the words ‘control or knowledge’ means the same thing as control ‘and’ knowledge. The idea of control assumes the existence of knowledge and the power to do something about it. Thus, a person cannot control a situation or condition if he has no knowledge of it, and as used here, the word ‘knowledge’ means actual knowledge brought directly to a person’s senses.
Thus, it is not enough for it to be shown that the valve was located on the plaintiff's property and subject to the plaintiff’s regulation and closed at the time of the fire or even to show, in addition, that the plaintiff should have known whether it was closed or not. You must find by the evidence that the valve was closed and that the plaintiff actually knew it was closed.
Now, knowledge may not ordinarily be proven directly, that is by direct evidence, because it is seldom possible to have direct evidence of the operation or what is in somebody’s mind. But, you may infer the presence or absence of knowledge from the circumstances surrounding a particular event or transaction. Thus, you may consider any acts done or omitted and any statement made or omitted and all other facts and circumstances which indicate a person’s state of mind at a certain time.
Now, if you find from a consideration of all the evidence that you have heard in this case that Mr. Kenneth A. Adams or someone acting under the direction or with the knowledge of Mr. or Mrs. Kenneth Adams turned off the automatic sprinkler system so that it was off at the time of the fire, then you should answer number one, yes.
Now, you should examine all the facts and circumstances as revealed to you by the evidence and if you believe by a preponderance of the evidence that the valve was closed at the time of the fire and that such condition was one within the control and knowledge of the plaintiffs as explained to you, then you should answer number one, yes. Otherwise, your answer should be no, and you should then proceed to the next question.

Following the standard set forth in Griffin v. Matherne, it is obvious to me that “there is a view of the case which makes the jury’s answers consistent” and in obedience to that standard this court should “adopt that view and enter judgment accordingly.” Simply stated the jury has unequivocally found that at the time of the fire the automatic sprinkler system was not cut off by a means within the control or knowledge of the insured.

The majority insists that the jury’s negative response to interrogatory number one is ambiguous. I would be inclined to agree if the interrogatory was to be analyzed in the abstract. But that is not the proper approach. A reviewing court must pass on questions such as this one in a far broader context and when that is done here the possibility of any ambiguity in the jury’s answer to this interrogatory is extremely remote. At the trial, neither side contested the fact that the sprinkler system was turned off by someone prior to the fire. The evidence presented was directed mainly toward establishing responsibility for that act. In charging the jury, the trial judge placed great emphasis upon this point. In light of these factors, I have no difficulty in assessing the jury’s answer to interrogatory number one. To suggest that it could mean that the sprinkler system was found to be inoperative at the time of the fire is simply to ignore what went on at the trial. There may be some logical consistency in the majority’s opinion but unfortunately there is too little common sense.

In addition it is of some importance to mention the fact that much of the confusion on this issue was created by the testimony of Mr. Wilde, a defense witness presented by MFB. His testimony was confusing, contradictory and rather bizarre. Evidently the jury rejected it, and to my mind, the reasons are obvious. Again I must say, that the insured was not to blame according to the jury’s answer, even if the system was turned off. Adams’ recovery is not dependent upon that fact. Rather the right of recovery is dependent upon whether, if the system was cut off, it was cut off “by a means within the control or knowledge of the insured.”

It is a serious matter to overturn a jury verdict after two different juries have decided a specific and vital issue in favor of a plaintiff and thereby deprive the plaintiff of a judgment in excess of one million dollars.

I would affirm the judgment.

      . The policies in question do not contain so-called “sprinkler” or “due diligence in maintaining fire equipment” clauses.


source: Caselaw Access Project

author: GODBOLD, Circuit Judge: COLEMAN, Circuit Judge

license: Public Domain

text:
    Linroy DAVIS, Petitioner-Appellant, v. Louis B. HEYD, Sheriff, Respondent-Appellee.
    No. 72-1512.
    United States Court of Appeals, Fifth Circuit.
    May 29, 1973.
    Coleman, Circuit Judge, dissented with opinion.

      Robert Glass, New Orleans, La., (Court-Appointed), for petitioner-appellant.
    Maurice R. Franks, Byron P. Legendre, Asst. Dist. Attys., Parish of Orleans, New Orleans, La., for respondent-appellee.
    Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge:

This appeal is by Davis, a state prisoner under a 15-year sentence for manslaughter, from the denial of federal ha-beas relief. The central legal issue is nondisclosure by the prosecution of evidence favorable to the petitioner and material to his guilt. The nondiselosed evidence consisted of written out-of-court statements by witnesses and photographs of petitioner, all taken shortly after the incident out of which the charge arose. We reverse.

The death for which petitioner was convicted occurred in an affray between Davis on the one hand and Reverend Dyer and his sons Joseph, James, and John on the other. Following an earlier difficulty between Davis and members of the Dyer family, Reverend Dyer and his three sons sought out Davis at his mother’s home. After words between Reverend Dyer and Davis a scuffle between them ensued, the three sons joined in, and during the scuffle Davis’ pistol discharged, killing James Dyer. In this context the obvious possible defenses were self-defense and accident. Self-defense was not interposed, however, and no jury instructions on self-defense were requested.

Louisiana law does not require pretrial discovery of statements taken from potential witnesses. According to his affidavit, defense counsel learned of the statements following the trial, and in the offices of the district attorney, when he noticed them in the hands of one of the district attorneys. He filed a motion. for a new trial, and the state then revealed the statements and photographs.

1. The affray

The Dyers found Davis at his mother’s home, standing in the front doorway. Leaving his sons in the car and cautioning them to remain there, Dyer approached petitioner. Reverend Dyer’s trial testimony was that after some brief words on the porch, Davis drew a gun from his pocket and aimed it at Reverend Dyer, Reverend Dyer grabbed him, a tussle ensued, and they fell into the living room. There Davis tried to throw Reverend Dyer down, but Reverend Dyer slung him onto the sofa. At that time, Reverend Dyer said, his three sons came to his aid. The four Dyers struggled with petitioner, who was on the sofa. Reverend Dyer heard but did not see'the gun discharge. John Dyer took the gun from Davis. In addition to his testimony, Reverend Dyer gave a statement the evening of the shooting, but it did not differ materially from his trial testimony.

Joseph Dyer testified at trial that he saw Davis pull the pistol on his father while the two men were on the porch, after which a struggle began, and the three sons left the car and ran to the house. .They found Reverend Dyer holding Davis on his back on the sofa, they tried to take the gun from Davis, but with one hand free and no one holding his arm, Davis aimed the gun at James and shot him.

Joseph and his father gave statements a few hours after the shooting. In his statement Joseph said that his father and Davis were standing on the porch, he turned his head, and when he looked back they were tussling, and they fell into the front room. At this time, Joseph saw Davis “coming out of his pocket with a gun,” and “[w]hen he went to aim it . James grabbed his arm and at this time [Davis] pulled the trigger.” Joseph was the only witness to see the act of shooting.

John Dyer was in Germany in the armed forces at the time of trial and did not testify. He also had given a signed statement after the shooting and in it he stated that while the two men were talking on the porch he saw Davis back up and “go in his pocket.” His brothers ran for the house while he was still in the car. All began tussling and all fell back in the house onto the sofa. When John reached the scene he saw Davis “come up with the gun,” with his finger on the trigger. “He was holding the gun with the barrell [sic] pointed up toward the ceiling. [Dams] started to bring the gun down and James grabbed him by the arm he had the gun in. I then heard the gun go off and I grabbed him by the arm and put his arm back and took the gun away from him.”

Petitioner Davis testified that Reverend Dyer grabbed him and in the ensuing struggle they fell on the floor and Reverend Dyer was choking him. The brothers came in and began kicking him, hitting him in the head, and beating him. His pistol had been stuck in his belt. In the struggle it slipped from his belt and he got it in his hand, how he did not know. He had a finger on the trigger and was attempting to put the safety on with his thumb, they were trying to jerk the gun away from him, he was trying to hold it, and it discharged.

On direct appeal the Supreme Court of Louisiana held that there was no substantial inconsistency between the pretrial statements and the testimony at trial, and thus no unconstitutional suppression of evidence. The federal ha-beas court, D.C., 350 F.Supp. 958, based its denial of habeas relief on alternative grounds: first, the evidence before the habeas court was insufficient to overcome the presumption of correctness to be given to the state court’s findings; second, if it was the duty of the habeas judge to review the record anew, he would have to conclude that there was not error of constitutional dimension, the prosecution, at the worst, having only failed to divulge material that might have assisted in cross-examination.

2. Standard of review

Pursuant to 28 U.S.C. § 2254(d) factfindings by a state court are as a general rule presumptively valid in federal habeas proceedings brought by a state prisoner. The federal habeas court, however, is not bound by the state court’s interpretation of the relevant constitutional law. As Justice Frankfurter wrote in Brown v. Allen, 344 U.S. 443, 506-507, 73 S.Ct. 397, 446, 97 L.Ed. 469, 515 (1953):

State adjudication of questions of law can not, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide.
Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts . . . the District Judge must exercise his own judgment on this blend of facts and their legal values. ' Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.

Accord, Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770, 789 (1963); West v. Louisiana, 478 F.2d 1026 (CA5 1973).

In this case the ultimate question is whether the prosecution failed to disclose evidence so material to the guilt or innocence of the accused that he was denied a fair trial under the teachings of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and related cases. The habeas court reasoned that the out-of-court statements would satisfy the appropriate standard of materiality only if, as a threshold matter, they were inconsistent with the in-court testimony of the Dyers. Thus in explaining the state court’s analysis, the federal court stated, “Here the determination of the state court was twofold: first, the statement was not inconsistent with the trial testimony; second, if it was, the difference was not sufficient to make non-production prejudicial.” The threshold issue of consistency, the federal habeas court stated, was a question of fact: “What is ‘consistent’ or ‘inconsistent’ ... is a complex question, but it is basically one that involves ‘the merits of the factual dispute.’ ” The ha-beas court therefore accorded the state court’s “finding” of consistency a presumption of validity, then ruled that the presumption had not been overcome, and consequently never seriously considered the ultimate legal question of whether the suppressed statements were material to petitioner’s guilt or innocence. To determine whether the habeas court correctly perceived its standard of review, we must briefly review the distinction between law and fact.

To assist in drawing the distinction Professor Morris has suggested as tests: “A question of fact usually calls for proof [whereas a] question of law usually calls for argument,” Morris, Law and Fact, 55 Harv.L.Rev. 1303, 1304 (1942), and “When there is but one account of what happened, and the application of law to that account is problematical, a question of law results,” id. at 1314-1315 (crediting Holmes for the rule). More to the point the Supreme Court in Townsend v. Sain, supra, the precursor of § 2254(d), defined the term “fact” in the following manner:

By “issues of fact” we mean to refer to what are termed basic, primary, or historical facts: facts “in the sense of a recital of external events and the credibility of their narrators .” Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 . . . (opinion of Mr. Justice Frankfurter). So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.

372 U.S. at 309 n. 6, 83 S.Ct. at 755 n. 6, 9 L.Ed.2d at 783-784 n. 6. In illustration of its distinction between fact and law the Supreme Court has stated that the question whether a confession is voluntary is ultimately a question of law. Thus the Court has explained that in the typical case in which a confession is attacked as involuntary, a trier of fact must initially re-create the external events preceding the confession, such as length of questioning, use of drugs, use of physical force, or use of coercive psychological tactics. Against the factual composite re-created a tribunal must apply the appropriate legal standard to determine if the confession is voluntary within the meaning of the Constitution. This process is discussed in depth in Culombe v. Connecticut, 367 U.S. 568, 603-606, 81 S.Ct. 1860, 6 L.Ed.2d 1037, 1058-1060 (1961). Accord, LaVelle v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637, 12 Cr.L. 4187 (March 19, 1973); Townsend v. Sain, supra; Brown v. Allen, supra, 344 U.S. at 507, 73 S.Ct. 397, 97 L.Ed. at 515. In an analogous context this court has recently held that the issue of effective assistance of counsel calls ultimately for a legal determination:

The precise issue of whether a particular defendant enjoyed “effective” assistance of counsel, is, in the end a question of law . [Tjhere is a legal standard, by definition normative and prescriptive, which must be applied to a particular set of facts in order to determine whether an accused received effective assistance of counsel.

Walker v. Caldwell, 476 F.2d 213 (CA5 1973) (emphasis original). Also the due process question of impermissible suggestiveness — sometimes implicated in criminal trials preceded by such identification procedures as showups, photo displays, or lineups — similarly requires application of a constitutional standard to elemental facts. Neil v. Biggers, 409 U.S. 188, 193 n. 3, 93 S.Ct. 375, 379 n. 3, 34 L.Ed.2d 401, 407 n. 3 (1972).

The question of materiality present in eases in which the accused complains of prosecutorial suppression of material evidence is of the same category as the issues of voluntariness, effective assistance of counsel, and impermissible suggestiveness. They are all mixed questions of law and fact calling ultimately for a legal determination. In this case, as the habeas court correctly recognized, the legal question of materiality arises only if the nondisclosed evidence is determined to be inconsistent with the trial testimony, but we feel that the consistency issue is also one of law and therefore not entitled to a § 2254(d) presumption of validity. As a general observation it would seem artificial to treat it differently from the question of whether the prosecution failed to disclose material evidence, because both questions are inextricably intertwined with each other. More importantly, the facts vel non are not in dispute. We know what the statements said, and we know what the witnesses said at trial. The initial task is only to compare the transcribed content of the Dyers’ trial testimony with the transcribed content of their out-of-court statements and then to determine if they are inconsistent. The issue is not factual under any traditional definition of the term “fact”. Its resolution does not require proof instead of argument; it does not involve reconstruction of historical facts; it does not require a finding as to the intent of the witnesses who signed the statements; nor does it require credibility choices based on the demeanors of the witnesses.

The policies underlying § 2254’s presumption of factual validity fully support the conclusion that the consistency issue is one of law. For example, the principle that federal habeas courts should defer to a state judge’s credibility choices is not violated by de novo review of the consistency issue in this ease —credibility choices are not required in measuring the transcribed out-of-court statements against the recorded trial testimony. Also, in many § 2254 proceedings the state court’s factfindings are likely to be more accurate than those of a federal court because they are made closer in time to the historical event. The danger of decreasing accuracy is not present in this case, however, because the testimony and statements have been transcribed, and it is only their relationship to each other that is in question. Nor is there a threat of needless expenditure of federal judicial resources in historical factfinding, since in this case consistency between the statements and testimony can be determined without an evidentiary hearing. See generally Developments—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1113-54 (1970). The Louisiana Supreme Court itself seemed to treat the consistency issue as one of law. On an independent review of the evidence it ruled that the statements were consistent with the trial testimony without questioning the propriety of making such a finding at the appellate level. We therefore conclude that our review is not constricted by presumptions of validity and turn to the merits of Davis’ petition.

3. Material inconsistency

With deference to both courts, we are compelled to say that their conclusions cannot stand under the scalpel of constitutional scrutiny. The Louisiana Supreme Court made these important rulings. (1) The statements were “essentially the same” as the trial testimony of Reverend Dyer and Joseph, which was that after Reverend Dyer remonstrated with Davis then Davis drew a gun, following which the four Dyers scuffled to disarm him. (2) The pretrial statements of Reverend Dyer and John were almost identical to the foregoing trial version. (3) Although in his testimony Joseph said the pistol was drawn on the porch, whereas in his statement he had said it was drawn inside the house after the fight was in progress, this was a “seeming inconsistency” which “might possibly be explained as a matter of imperfect articulation trying to describe the moment when Joseph observed the gun being aimed at his brother.” And, assuming the inconsistency was not mere “imperfect articulation” concerning when the gun was aimed, nevertheless Joseph’s pretrial statement, “in essential outline,” did not differ from the trial testimony which was that the accused drew his gun while arguing with Reverend Dyer and that the Dyers’ only object was to disarm him and turn him over to the police. (4) Failure to disclose John’s pretrial statement, which might have afforded grounds for a continuance, was not prejudicial because, as the Supreme Court construed his statement, it did not tend to support the theory of accidental discharge. As the court construed the statement, John was saying that Davis was bringing the gun down to shoot one of the Dyers when James grabbed his arm and the gun then fired.

Ruling (3) relates to Joseph’s statement. At trial Joseph specifically testified that Davis pulled the gun from his pocket while Davis and Reverend Dyer were arguing on the porch, following which a struggle ensued that carried into the living room. This account corroborated the testimony of Reverend Dyer and tended to make Davis the aggressor. It contradicted the testimony of Davis, who contended that he did not draw the gun on the porch, but had somehow picked it up when it slipped from his belt during the struggle. In his statement, however, given only a few hours after the shooting, Joseph said-in direct opposition to his trial testimony — that the gun was drawn inside the house after the scuffle was in progress. The version in the statement corroborated the testimony of Davis, contradicted the testimony of Reverend Dyer, and tended to show Reverend Dyer as the aggressor. We confess our inability to understand how this inconsistency relating to when the gun was drawn, can be viewed as an “imperfect articulation” of when the gun was aimed at James. If drawn on the porch, the gun was drawn at a time when the three brothers were-seated in the car some distance away, and no one says it was then aimed at James. The alternative explanation by the Supreme Court — -that Joseph’s testimony did not differ from the trial version that Davis drew while arguing with Reverend Dyer and that the Dyers’ only objective was to disarm him — is no more tenable. This cannot be squared with Joseph’s statement that the gun was drawn inside the house and after the fight was in progress.

In an additional respect not mentioned by the Louisiana Supreme Court Joseph’s statement contradicted the Dyers’ trial version of the struggle. At trial Joseph said that Davis, with his hand free and no one holding his arm, aimed at James and shot him.

Q. Describe exactly what the defendant did with the gun.

A. The defendant, after he told his mother to move back out of the way, he was laying on the sofa and then he aimed the gun [at] my brother and shot him.

Q. At the time that he aimed the gun, was anybody holding his arm?

A. No, he had one of his hands free.

Q. He had one hand free ?

A. Yes, he did.

In contrast Joseph said in his statement, “When he went to aim it James grabbed his arm and at this time [Davis] pulled the trigger.” This statement corroborated Davis’ contention that the gun had accidentally discharged when the Dyers tried to jerk it from his hand, and contradicted the Dyers’ trial version that Davis had, with his arm free, intentionally shot James.

Rulings (2) and (4) bear on John’s statement. The statement is not “almost identical” to the Dyers’ trial version. According to his statement John did not see the weapon drawn on the porch but only saw Davis “go in his pocket.” He fixed the position of the gun, when the struggle was occurring in the living room, as aimed at the ceiling and described the discharge as occurring when James grabbed Davis’ arm. This statement both contradicted the Dyers’ trial version that Davis, as the aggressor, drew the gun on the porch, and conflicted with Joseph’s testimony that Davis’ arm was free and that Davis aimed at James and shot him. Ruling (4) construes John’s statement to be that “Davis was bringing the gun down to shoot one of the Dyers when James grabbed his arm.” (emphasis added) The critical italicized phrase attributing to Davis an intent to shoot (and agreeing with Joseph’s trial version that petitioner aimed at and shot James) is an interpolation. The statement contains no reference to Davis’ intent.

Ruling (1) is a summary of the overall content of all the statements versus the trial testimony, and what we have already said covers it.

Under Supreme Court precedents the prosecution’s failure to disclose these statements denied Davis his fourteenth amendment right to a fair trial. As the Supreme Court explained in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) :

As long ago as Mooney v. Holohan, 294 U.S. 103 [, 55 S.Ct. 340, 79 L.Ed. 791, 98 ALR 406] (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with “rudimentary demands of justice.” This was reaffirmed in Pyle v. Kansas, 317 U.S. 213 [63 S.Ct. 177, 87 L.Ed. 214] (1942). In Napue v. Illinois, 360 U.S. 264, [79 S.Ct. 1173, 3 L.Ed.2d 1217] (1959), we said “the same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id., at 269 [79 S.Ct. at 1177, 3 L.Ed.2d at 1221]. Thereafter Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.” . . . When the “reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of evidence affecting credibility falls within the general rule. ... A new trial is required if “the false testimony could . in any reasonable likelihood have affected the judgment of the jury. ...”

Id. at 153, 92 S.Ct. at 766, 31 L.Ed.2d at 108. See also Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

In this case the statements not disclosed were so material to guilt or innocence that they easily could have affected the verdict. They were, for example, material to the issue of whether Davis committed manslaughter, which is defined in Louisiana as “[a] homicide which would be murder . . . but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La.Rev.Stat.Ann. § 14:31. The statements specifically corroborated Davis’ defense of accidental discharge and specifically contradicted the Dyers’ trial version of intentional killing in the heat of a struggle. In indicating that Davis was not the aggressor the statements would have been material to a plea of self-defense. Davis did not raise self-defense or request jury instructions on that issue. Under Louisiana law an aggressor may not claim self-defense unless he withdraws from the conflict and his adversary knows or should know of the withdrawal. Id. § 14:21. At trial both Reverend Dyer and Joseph pictured Davis as the aggressor, while Davis described Reverend Dyer as the aggressor. Joseph’s statement strongly substantiates Davis’ version, and John’s does also though to a lesser degree. With the full information available, defendant might have elected to plead self-defense.

John’s statement has an additional significance not possessed by the others. In Louisiana failure to produce a witness within a party’s control raises a presumption that his testimony would not have aided the party. Id. § 15:432. To negative the presumption the prosecutor introduced the subpoena unserved on John because he was in Germany. The defense, with knowledge of his statement, could have moved for a continuance which, if granted, would have caused the prosecution to prescribe. La. Code Crim.P.Ann. art. 578.

Prior to motion for new trial Davis’ trial counsel did not request disclosure of the out-of-court statements. Compare Brady v. Maryland, supra 373 U.S. at 87-88, 83 S.Ct. 1194, 10 L.Ed.2d at 218-219. Case-by-case development since Brady has made clear that a demand by defense counsel is not a uniform prerequisite to federal habeas relief based on the state’s failure to disclose evidence material to guilt or punishment. See, e. g., Jackson v. Wainwright, 390 F.2d 288 (CA5 1968); Ingram v. Peyton, 367 F.2d 933, 936-937 (CA4 1966); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287, 290 (CADC 1966); Barbee v. Warden, 331 F.2d 842, 845-846 (CA4 1964). See generally 8 Moore, Federal Practice ¶ 16.06 [1]; at 16-66 to 16-67 (Cipes ed. 1972); Annot., 34 A.L.R.3d 16, 32-38 (1970). In this case the state does not argue that absence of a demand vitiates the constitutional challenge based on nondisclosure of material evidence. Petitioner’s trial counsel did request disclosure, in part because, as he explained in a post-trial affidavit, he did not know the statements existed. The evidence in question was in the state’s possession and it was so material to guilt that it “could scarcely have failed to attract and sustain prosecutorial awareness.” United States v. Keogh, 391 F.2d 138, 147 (CA2 1968). Under these circumstances ritualistic imposition of a requirement to request unknown evidence would further no useful policies, but would instead undermine the constitutional guarantee to a fair trial.

4. Section 2254(d) (8)

28 U.S.C. § 2254(d)(8) provides that a state court finding of fact is not to be presumed correct if “the Federal court on a consideration of . . . the record as a whole concludes such factual determination is not fairly supported by the record.” Even if the rulings of the Louisiana Supreme Court are viewed as findings of fact, we would nevertheless hold, for reasons apparent from our preceding discussion, that the record as a whole does not support those rulings and that petitioner has established “by convincing evidence that the factual determination [s] by the State court [were] erroneous.” Id. § 2254(d).

5. Conclusion

The judgment of the District Court is reversed and the cause remanded with instructions that the writ issue, subject to the State of Louisiana’s right to retry petitioner within a reasonable time.

COLEMAN, Circuit Judge

(dissenting) :

I respectfully dissent.

It is to be regretted, I think, that in this collateral attack on a Louisiana manslaughter conviction the majority opinion is likely to have far-reaching future consequences for the federal courts in this Circuit.

The majority opinion quite correctly states that under 28 U.S.C. § 2254(d) factfindings by a state court are as a general rule presumptively valid.

It then proceeds to knock a great hole in the statute by holding that an appraisal of asserted factual inconsistencies in the case now before us is a question of law not of fact. In my view this puts us right back where we were before § 2254(d) was enacted. It means that in the future the federal courts will have to “retry” similar inconsistencies as questions of law, thus adding to the hopeless mound of litigation under which we are presently smothered. I personally believe that a comparison of facts is just another question of fact and that under § 2254(d) the judgment of the District Court should have been affirmed per curiam.

Moreover, there were no material or prejudicial inconsistencies in the statements, even if we are to weigh them legally rather than factually. By all means, there was not such inconsistency as would have required the State sua sponte to have tendered them to the defense.

The opinion of the District Court [Judge Alvin B. Rubin] is reported, 350 F.Supp. 958-971. In an unusually thorough analysis of Davis’ claims Judge Rubin found no federal constitutional grounds for relief. I unhesitatingly agree.

As to the background, I feel that I can do no better than to quote from Judge Rubin’s published opinion, 350 F. Supp., beginning at 960:

“The applicant was convicted of manslaughter in Louisiana state court on September 20, 1968. A motion for a new trial was made by his court-appointed counsel, but was denied by the trial court. Evidentiary material was attached to the state’s response to the application for a new trial. Counsel for the defendant filed a motion for appeal, but failed to perfect the appeal, submit a brief, or appear for argument. Almost two years later, represented by new counsel, the applicant sought a writ of ha-beas corpus in state court, alleging denial of an effective appeal, and requested relief by way of an out-of-time appeal. The state court granted an out-of-time appeal. The evidentiary material attached to the state’s response to the application for a new trial was presented to the Louisiana Supreme Court on the appeal. The issues raised in the state courts, which are the same as those now urged as bases for a federal writ of ha-beas corpus, were that Mr. Davis had been convicted in violation of the due process and confrontation clauses of the United States Constitution because the state had withheld the pre-trial statements of witnesses and photographs that both supported his defense and contradicted the testimony of major State witnesses, and further because, by sustaining objections to two questions put by defense counsel to one of the state’s witnesses, the State trial judge had denied Mr. Davis the right of cross-examination.

“On June 7, 1971, the Louisiana Supreme Court decided both issues adversely to the appellant and affirmed his conviction, State v. Davis, 1971, 259 La. 35, 249 So.2d 193.

“In order to understand the issues, it is necessary to review the events before and during the trial in state court.

“New Orleans police arrested the applicant, Linroy Davis, for the murder of James Dyer on July 26, 1966. The Grand Jury return was ‘Not a true bill’. Then the Orleans Parish District Attorney filed an information charging manslaughter. Almost two years later, and just three days before the prosecution would have prescribed, LSA-C.Cr.P. art. 578, the case was set for trial. After being continued, the trial commenced one day before the lapse of the time within which prosecution is permitted. The jury returned a verdict of guilty by a 10-2 vote. The events recounted at the trial were these:

“On Sunday, July 24, 1966, Linroy Davis, who was in an automobile with another man, spoke from the car to Miss Brenda Mae Dyer, a sister of the deceased, in front of the deceased’s home. Mr. Davis and Miss Dyer were not acquainted. When James Dyer, the deceased, went to Davis’ car to protest Mr. Davis’ remarks to his sister, Mr. Davis got out of the auto and slapped Mr. Dyer on the side of his head with a pistol. Miss Dyer picked up a brick to throw at Mr. Davis, but Mr. Davis returned to his automobile and drove off, pointing the pistol at her. Mr. Davis circled the block and, seeing the decedent’s twin brother, pointed the gun at him and drove off.

“Later that afternoon the Dyers’ father, the Reverend John Dyer, a minister, returned from church. His family told him of the events that had just occurred, and he drove in an automobile with his sons, James, Joseph, and John, looking for Mr. Davis. He saw a car that he recognized as Davis’ from the description, and, as he drove up, he saw Mr. Davis standing in the doorway of the house in front of which the car was parked. The Reverend Dyer left his sons in the car and walked up to Mr. Davis.

“Much of the testimony of the Davis trial consisted of varying accounts of what happened thereafter. The Reverend Dyer testified his objective was to ‘reform the boy;’ after the conversation began, Mr. Davis pulled out a gun; he tussled with Mr. Davis; his sons came to his aid; the gun went off; and James Dyer was shot. Joseph Dyer’s testimony was substantially in accordance with his father’s. John Dyer was absent in the armed forces, stationed in Germany, and did not testify.

“The defense called the defendant’s mother who testified that she came into the room before the shot was fired, and that, in effect, the Dyers were the aggressors in the fray then going on. Mr.; Davis testified that the Reverend Dyer grabbed him and, in the struggle they fell to the floor. The older man began to choke him. Then the other Dyers joined in the fray. He managed to grab the gun, the Dyers tried to take it away, and it went off. Other witnesses confirmed parts of these accounts.

“The Dyers were subjected to vigorous cross-examination by appointed counsel who was then defending Mr. Davis. When the state answered the defense motion for a new trial in 1968, defense counsel learned for the first time that the District Attorney had taken written statements from the Dyers before the trial and also had three photographs of the accused taken shortly after the fray. The failure to produce these at the trial is the basis of the first claim by the applicant.

“These statements and photographs were before the state Supreme Court when it heard Mr. Davis’ out-of-time appeal. Counsel for the applicant was offered an opportunity to file additional evidence in this court. However, no evidence has been offered that was not adduced at the time of the second state appeal, except an affidavit by applicant’s former counsel that he didn’t know of the existence of the written statements and photographs until after the trial; ‘the statements would have been extremely helpful if not crucial for the defense of Davis at the trial;’ they were ‘essential to a fair trial;’ and he believed that with them, he could have obtained a verdict of acquittal.”

This ends the quotation from Judge Rubin’s reported opinion.

MY DISSENTING VIEWS

What kind of manslaughter case was this?

The defense of self-defense was not interposed and there were no jury instructions on self-defense.

Therefore, the only available defense was that the killing was accidental and this was the defense on which the case was tried.

With this beginning, I would weigh this appeal in the light of the following:

1. Judge Rubin found that “The State did not use perjured testimony, did not suppress truth, it did not knowingly foist error on the jury”, 350 F. Supp. at 968;

2. In the State Court, trial counsel made no request for any pre-trial statements made by the Dyers. Reverend John Dyer and Joseph Dyer took the witness stand and were vigorously cross-examined but they were not asked, even then, if they had given any pretrial statements. If counsel had asked for such statements and if they had been furnished what could they have been used for? Obviously, for attempted impeachment only and there was not enough material inconsistency to support impeachment of any worthwhile vitality.

The majority opinion concedes that there were no “inconsistencies” on the part of Reverend John Dyer, so as to his testimony his prior statement would have been wholly useless.

That narrows the controversy, so far as the trial was concerned, to alleged inconsistencies of federal constitutional dimensions between Joseph Dyer’s pretrial statement and his testimony. The Supreme Court of Louisiana found that the statements were “essentially the same”. The majority applies its views to the facts and overturns the findings of the Louisiana Supreme Court, as well as those of the Federal District Court. In my view, the findings are not erroneous; indeed, I agree that they are right.

In his pre-trial statement Joseph Dyer said that the shooting took place in the house. At the trial he said the same. In his pre-trial statement Joseph said that he saw Davis coming out of his pocket with a gun and when he went to aim it James Dyer (the deceased) grabbed his arm (without saying which arm) and at this time Davis pulled the trigger. At the trial, Joseph testified that the Dyers tried to take the gun from Davis while Reverend Dyer whs holding him on the sofa in the house. However, with one hand free and no one holding his arm (presumably his shooting arm) Davis aimed the gun at James Dyer and shot him. The question is: which arm was which? How much impeachment could this have provided? Very little, I daresay.

So, for this minor evidentiary hang-up the Court of Appeals steps in once again to void a state conviction after the State Supreme Court and the United States District Court have held otherwise on the same, identical point. This is particularly regrettable when one recalls that defense counsel never attached enough importance to possible prior statements to ask for them. I doubt, too, that the state prosecutor is to be faulted for not furnishing them sua sponte, when two courts have agreed that there existed no material inconsistency.

The majority opinion surmises that if Davis or his counsel had known of the allegedly inconsistent prior statements of Joseph Dyer and John Dyer, the younger, they might have pleaded self-defense. This flies in the face of facts which the majority opinion does not mention. Shortly before the fatal difficulty, at another place, at a time when he could have been in no real or apparent danger of death or great bodily harm, Davis, the defendant, had slapped James Dyer, whom he later killed, on the side of the head with a pistol. Then he pointed the weapon at Brenda Mae Dyer. Still later he pointed it at another Dyer brother. Furthermore, Davis admitted that from the beginning of the fatal encounter he had the pistol in his belt. At the time of the shooting the Dyers were unarmed. All this makes very poor food for thoughts of self-defense. It also negates the proposition that the same man who met the visitors with pistol in belt committed an accidental homicide, and that is true regardless of whether he pulled the pistol on the porch or after they got in the house. The whole truth is that the deadly encounter ended within two or three minutes of its inception and testimonial inconsistencies in such a situation are known by experience to be the rule rather than the exception.

It is further said, however, that the defense might have asked for a continuance had it known of the prior statement of John Dyer, the younger, then in Germany. I think it is only reasonable to suspect that such a motion would have been denied. The statement could have been used only to impeach him, but he did not testify. Moreover, his testimony would have been purely cumulative. The record provides no basis for assuming that John would have testified as per his prior written statement, even if it were1 inconsistent. My educated guess is that the defense was glad that John, Jr. was “across the waters” and thus unable to assist the prosecution.

For two reasons, I would affirm the judgment of the District Court:

1. Section 2254(d) has been satisfied, adversely to the appellant;

2. As a matter of fact, not as a matter of law, the allegedly inconsistent statements were not so materially inconsistent, if inconsistent at all, as to have required the state prosecutor to have tendered them sua sponte.

Again with deference, I am of the opinion that the majority has in effect retried this sudden, swirling, quickly completed physical encounter, a function which belonged entirely to the Louisiana courts.

I respectfully dissent.

      . Davis was arrested July 26, 1966, for an alleged murder. The grand jury considered the case and returned “Not a true bill.” Then the district attorney filed an information charging manslaughter. Almost two years later and just three days before the prosecution would have prescribed, La.Code Crim. P.Ann. art. 578, the case was set for trial. Trial commenced one day before the lapse of the time within which prosecution is permitted. The jury reached a verdict of guilty by a 10-2 vote.

      . Petitioner contended in the district court that the trial judge improperly limited the scope of defense counsel’s cross-examination. That contention has been dropped on appeal. Also the issue of suppression of the photographic evidence has not been seriously pressed on appeal.

      . E. g., State v. Cardinale, 251 La. 827, 206 So.2d 510, 511-512 (La.1968), cert. dismissed, 394 U.S. 437, 89 S.Ct. 1161, 22 L.Ed.2d 398 (1969).

      . Exceptions to the general rule are specified in 28 U.S.C. § 2254(d).
      For example, there is no presumption of validity if “the merits of the factual dispute were not resolved in the State court hearing,” or “the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing,” or “the Federal court on a consideration of . the record as a whole concludes that [the] factual determination is not fairly supported by the record.” See generally Parmer v. Caldwell, 476 F.2d 22 (CA5, 1973). Section 2254(d) substantially codifies the standards of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in which the Supreme Court held that federal redetermination of disputed facts was mandatory “unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” Id. at 313, 83 S.Ct. at 757, 9 L.Ed.2d at 785. See LaVelle v. Delle Rose, 410 U.S. 690, 93. S.Ct. 1203, 35 L.Ed.2d 637, 12 Cr.L. 4187 (March 19, 1973); Procunier v. Atchley, 400 U.S. 446, 451 n. 6, 91 S.Ct. 485, 27 L.Ed.2d 524, 529 n. 6 (1971).

      . Wigmore draws the distinction in the following terms:
      “Given, certain facts or groups of facts, and the State predicates a jural relation between A and B, f. e., is ready to lend its force towards a more or less direct realization of that relation. The establishment of a given claim, then, involves the demonstration (1) that certain facts or groups of fact exist, (2) that to the contingency of their existence the State attaches the legal consequences now asserted by the claimant.”
      1 Wigmore, Law of Evidence § 1, at 2 (3d ed. 1940).

      . We agree with the conclusion of Imbler v. California, 424 F.2d 631 (CA9 1970), that the draftsmen of the 1966 amendments to 28 U.S.C. § 2254 used the term “factual issue” in the same sense as it was used in Townsend v. Sain.

      . Our list of various so-called mixed questions of fact and law is, of course, not exhaustive. The distinction between fact and law has been the subject of extensive commentary, and many of the more classic writings are referenced in Professor Morris’ article cited in text.

      . The opinion of the Louisiana Supreme Court is reported at 259 La. 35, 249 So.2d 193.

      . This effect of the inconsistencies as making self-defense a strong or a weak defense was not touched on by the Supreme Court or the habeas court.


author: AINSWORTH, Circuit Judge.

text:
    In re Report of GRAND JURY PROCEEDINGS Filed on June 15, 1972. Appeal of Honorable Jerry WOODARD, et al.
    No. 72-3499.
    United States Court of Appeals, Fifth Circuit.
    June 4, 1973.
    Rehearing and Rehearing En Banc Denied July 3, 1973.
    Joseph A. Calamia, John L. Fashing, Jerry Woodard, Judge, 34th Judicial District Court, El Paso, Tex., for appellants.
    Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for appellee.
    Before AINSWORTH, GODBOLD and CLARK, Circuit Judges.
   AINSWORTH, Circuit Judge.

This is an appeal from the denial of the United States District Court of an application filed by Judge Jerry Woodard, presiding state judge in El Paso County, Texas, to expunge a federal grand jury report from the federal district court’s records at El Paso, Texas. The “Report of Grand Jury Proceedings” was presented by the jury to the federal district court on June 15, 1972. Pursuant to the request of the grand jury, the district judge directed the clerk to file the report as a public record. Judge Woodard then filed an application to expunge the entire report. Before this application was acted upon, Judge Woodard sought and obtained from this Court an order directing the lower court to rule on the application within ten days, without a hearing or the taking of evidence. The district court’s denial of the application followed. The various issues presented on appeal basically raise two questions: whether the federal grand jury had the power or the authority to make the report, and whether the report should be expunged.

The facts underlying this controversy are as follows: Judge Woodard, as presiding judge in the District Court of El Paso County, Texas, Thirty-Fourth Judicial District, dismissed a state narcotics case on April 18, 1972, pursuant to a motion by the assistant district attorney representing the State of Texas. The motion to dismiss the prosecution in the state case was made after a federal agent testifying at the trial allegedly made inconsistent statements. Subsequently the El Paso federal grand jury investigated the circumstances of the dismissal to determine whether there had been any violations of federal statutes involved. Apparently the grand jury was concerned with possible effects on the credibility of the federal agent because of the inference that his testimony was critical to pending federal narcotics cases. This investigation led to the “Report of Grand Jury Proceedings.” Pertinent portions of the text of the report read:

“After hearing numerous witnesses, it was apparent to us that the variances in testimony by the federal officer, who was not even the star witness, and on whose testimony the decision to call a mistrial was based, could have been reconciled without too much difficulty, and indeed, the mistrial could have been avoided altogether had the witness been properly prepared by the District Attorney’s office prior to the trial. It is unrealistic to expect a witness to recall exact dates from as far back as a year ago. Therefore, we strongly recommend that every law enforcement officer who serves as a witness in a trial should not only , be allowed to review the case history prior to the trial, but should be required to do so.
“El Paso has a serious drug problem, and trials are very expensive. It is, therefore,the recommendation of this Grand Jury that in the future the District Attorney’s office take more precaution to prepare their witnesses prior to the trial, and during the actual trial, make a more determined effort to keep the main objectives of the case in mind, making certain any variances in testimony truly cannot be reconciled before calling a mistrial.
“We feel officer DeHoyos has done an excellent job and that all charges and accusations made against him were completely unfounded.
“We feel that the atmosphere surrounding the entire trial i. e. the defense attorney hurling accusations at witnesses, newspaper reporters appearing on cue, etc. was not in the best interests of justice or the people of the City of El Paso.
“We further feel that the Judge and District Attorney by dismissing the charges before completion of the trial did a disservice to the people of El Paso at large and in particular to those persons who were empaneled and sitting as a jury in consideration of this case.
“The Grand Jury recommends that this report be filed as a public record.”

In denying the application, the district judge reasoned that the court had nothing to do with the investigation by the grand jury of the matter involved in the report; that the court could not scrutinize matters considered by the grand jury; and that the court had no power to direct, control, suppress, influence, or interfere with the investigations, deliberations, recommendations, and reports of the grand jury. The court felt that the grand jury lawfully exercised its inquisitorial powers in the investigation of possible federal offenses, and that it acted within its authority in wishing to “clearly reflect its conscientious conclusion as to the public perjury charges against the federal officer and the conduct of the state officials involved therein.” The court further stated: “Undoubtedly, the Federal Grand Jury, having concluded that the charges against this federal officer were unfounded, felt that it should report its findings to the Court. While, as stated above, it is the opinion of this Court that it has no discretion and no power to pass upon the propriety of a report by a Federal Grand Jury, if it did have such power, it would find that the conduct of the Grand Jury in this ease was proper.”

Appellant contends that the grand jury can only lawfully indict or return a no true bill, and that it is powerless to speak publicly of any other matter; indeed, that it has no other public existence. Because we decide the instant case on other grounds, we pretermit the issue of whether a federal grand jury has the authority to make reports. We point out, however, that there is persuasive authority and considerable historical data to support a holding that federal grand juries have authority to issue reports which do not indict for crime, in addition to their authority to indict and to return a no true bill.

We find that the substance of the report, however, bears little relevance to federal subject matter and is concerned mostly with a purely local affair. The report itself shows no adequate or sufficient reason to assume a federal concern where critical determinations are made about a local controversy involving the conduct of a state trial for violations of Texas state laws. There is no apparent federal purpose to be served by the reference to Judge Woodard and to the state district attorney, and the United States Attorney has not supplied this Court, in brief or in oral argument, any good and sufficient reason for the grand jury’s report. Accordingly, we have concluded to require that the district judge order expunction of the portions of the report which deal with purely local affairs, as follows:

. [T]he mistrial could have been avoided altogether had the witness been properly prepared by the District Attorney’s office prior to the trial. It is unrealistic to expect a witness to recall exact dates from as far back as a year ago. Therefore, we strongly recommend that every law enforcement officer who serves as a witness in a trial should not only be allowed to review the case history prior to the trial, but should be required to do so.
. It is, therefore, the recommendation of this Grand Jury that in the future the District Attorney’s office take more precaution to prepare their witnesses prior to the trial, and during the actual trial, make a more determined effort to keep the main objectives of the case in mind, making certain any variances in testimony truly cannot be reconciled before calling a mistrial.
We further feel that the Judge and District Attorney by dismissing the charges before completion of the trial did a disservice to the people of El Paso at large and in particular to those persons who were empaneled and sitting as a jury in consideration of this case.

Vacated and remanded with directions that the district court order that the Clerk of the United States District Court, Western District of Texas, El Paso Division, expunge those portions of the “Report of Grand Jury Proceedings” filed on June 15, 1972, which are described above.

Vacated and remanded with directions.

      . The first paragraph of the grand jury’s report states that the testimony of the federal officers was discredited in the trial in question and that the grand jury conducted hearings to inquire into the circumstances involved. At oral argument, the Assistant United' States Attorney stated to this Court that he had referred the matter to the grand jury for their consideration. In his order denying the application for expunction, the district judge stated that the federal agent involved in the state mistrial “had made numerous narcotic cases which were pending in the State Court and some of which were connected with the case that was dismissed. Likewise he had made numerous federal narcotic cases on which a Federal Grand Jury had returned indictments. The United States Attorney had reason to believe that there was a possible conspiracy to discredit this officer in order to prevent the prosecution of these state and federal cases in which he was involved.”

      . Although* there are cases, most of which concern state grand jury reports, which allow expunction and cases which uphold grand jury reports, we have found no case with the same factual situation as the one presented on this appeal. Most decisions are made on the basis of the facts of the case. Among the factors considered are: whether the report describes general community conditions or whether it refers to identifiable individuals; whether the individuals are mentioned in public or private capacities; the public interest in the contents of the report balanced against the harm to the individuals named; the availability and efficacy of remedies; whether the conduct described is indictable.
      The historical development of the grand jury is traced in Morse, A Survey of the Grand Jury System, 10 Oregon L.Rev. 101-122 (1931); Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); In re Charge to Grand Jury, 30 Fed.Cas.No.18,255, p. 992 (1872); dissenting opinion of Harlan, J., in Hurtado v. People of State of California, 110 U.S. 516, 538, 4 S.Ct. 111, 28 L.Ed. 232 (1884); Ex parte Bain, 121 U.S. 1, 11, 7 S.Ct. 781, 30 L.Ed. 849 (1887); concurring opinion of Wisdom, J., in United States v. Cox, 5 Cir., 1965, 342 F.2d 167, 186-188, cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965).
      The history of the grand jury and the grand jury’s authority to make reports which do not indict are discussed in the following: concurring opinion of Wisdom, J., in United States v. Cox, supra, 342 F.2d at 185-190, Younger, The People’s Panel: The Grand Jury in the United States, 1634-1941 (1963) (extensive treatment) ; Kuh, The Grand Jury “Presentment” ; Foul Blow or Fair Play, 55 Col.L.Rev. 1103 (1955); Edgar, Jr., The Propriety of the Grand Jury Report, 34 Tex.L.Rev. 746 (1956); Orfield, The Federal Grand Jury, 22 F.R.D. 343, 394-402, 436-447 (1959). The latter three articles include analyses of state cases and citations to other authorities.
      The grand jury’s reporting function is also considered in 4 Stan.L.Rev. 68, 68-69 (1951); Dession and Cohen, The Inquisitorial Functions of Grand Juries, 41 Yale L.J. 687, 704-712 (1932); United States v. Smyth, 104 F.Supp. 283 (1952); In re Presentment by Camden County Grand Jury, 10 N.J. 23, 89 A.2d 416 (1952); concurring opinion of Wisdom, J., in United States v. Cox, supra, 342 F.2d at 189. In United States v. Cox, supra, in concurring opinions, Judges Wisdom and Brown suggest the return into open court of a “presentment” or “indictment” unsigned by the District Attorney, and therefore insufficient to institute criminal proceedings, which would be equivalent to a grand jury’s report. United States v. Cox, supra, at 184-185, 189. Orfield, supra, comments: “ . . . the full extent of inquisitorial power has never been settled by the precedents. [Application of Texas Co., 27 F.Supp. 847, 850 (1939)]. The powers of the grand jury are not defined in the federal statutes. The statutes authorize the court to call a grand jury, provide for the manner of such calling, define a quorum, and give the court the right to excuse or discharge. Thus the powers of the grand jury have been spelled out by the courts. State law does not determine the powers and functions of federal grand juries. [United States v. Warren, 26 F.Supp. 333 (1939)].” Orfield also cites United States v. Smyth, supra, as authority for the grand jury to make reports. For citations to law review articles on the reporting function, see Orfield, supra, 22 F.R.D. at 446 n. 751, and 447 n. 753-754.
      Some authorities explain that the federal grand jury is recognized by the Fifth Amendment to the United States Constitution’s reference to a right to indictment by a grand jury in enumerated instances, and that it has been held that the powers of the federal grand jury are those of its English prototype at Common Law. See Orfield, supra, citing Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 63 L.Ed. 979; Carroll v. United States, 2 Cir., 1927, 16 F.2d 951, 953; O’Connell v. United States, 2 Cir., 1930, 40 F.2d 201, 205. United States v. Cox, supra, dissenting opinion, 342 F.2d at 178, citing Costello v. United States, 350 U.S. 359, 361, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Ex parte Bain, supra, 121 U.S. at 10, 11, 7 S.Ct. 781; In re April 1956 Term Grand Jury, 7 Cir., 1956, 239 F.2d 263, 268, 269; United States v. Smyth, supra; concurring opinion of Wisdom, J., in United States v. Cox, supra, 342 F.2d at 186, citing Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). 4 Stan.L.Rev. 68 (1951); In re Charge to Grand Jury, supra. Congress has specifically authorized grand jury reports for special grand juries (18 U.S.C. § 3331 et seq.) in 18 U.S.C. § 3333. The legislative history of this section is found in 1970 U.S.Code Cong. and Adm.News, p. 4007.


author: SPRECHER, Circuit Judge.

text:
    Jules R. GREEN et al., Plaintiffs-Appellants, v. WEIS, VOISIN, CANNON, INC., et al., Defendants-Appellees. Henry A. MARKUS, Plaintiff-Appellant, v. WEIS, VOISIN, CANNON, INC., et al., Defendants-Appellees.
    Nos. 72-1441, 72-1647.
    United States Court of Appeals, Seventh Circuit.
    Argued April 19, 1973.
    Decided June 8, 1973.

      William J. Scott, Atty. Gen., William P. Rosenthal, Harvey J. Barnett, Arthur W. Friedman, Chicago, 111., for plaintiffs-appellants.
    Gerald M. Newman, David L. Fisher, Stephen C. Shamberg, Chicago, 111., for defendants-appellees.
    Before MURRAH, Senior Circuit Judge, and KILEY and SPRECHER, Circuit Judges.

       Senior Circuit Judge Alfred Murrah of the Tenth Circuit is sitting by designation.

   SPRECHER, Circuit Judge.

This appeal is concerned primarily with the meaning of the words “sale” or “sell” in the Illinois Securities Act.

Plaintiffs appealed from grants of summary judgments for defendants in a diversity action seeking rescission of stock purchases because of the failure of defendants to comply with the registration requirements of the Illinois Securities Act. Ill.Rev.Stat., ch. 12½, §§ 137.1 et seq. The state of Illinois, which filed a brief as amicus curiae, also urged reversal on the ground that the trial court’s construction of Illinois law would emasculate the protection accorded Illinois citizens by the Illinois Securities Act.

Each of the plaintiffs in No. 72-1441 purchased five thousand shares of the common stock of London Ben, Inc., in March, 1969. The purchase price for the stock in each case was $11,000. Defendants are London Ben and Weis, Voisin, Cannon, Inc., the underwriter and agent for the sale of the London Ben stock.

The facts surrounding these sales are not disputed. All of the plaintiffs are residents of Chicago, Illinois or its suburbs. Each of the plaintiffs, except Nathan Rosenstone, was solicited in Illinois by defendant Weis, Voisin in oral and written communications. Each of these plaintiffs received, in Chicago, an investment letter and selling circular of London Ben, offering to sell the stock of London Ben. The investment letter and selling circular were sent by Weis, Voisin from its Chicago offices. Each of the plaintiffs accepted the offer to purchase by signing the investment letter and sending it, with a check, to the Weis, Voisin offices in Chicago.

Plaintiff Rosenstone, also an Illinois resident, was solicited for London Ben stock in Florida, where he was on vacation, by means of a.telephone call from Weis, Voisin in Chicago. Rosenstone stated at the time of the phone call that he was a resident of Chicago and this information was recorded by the Weis, Voisin representative. Rosenstone signed the investment letter while in Florida and mailed it to the Weis, Vois-in Chicago office. The confirmation of the sale and stock certificates were delivered to Rosenstone’s Chicago residence address.

Confirmations on each of these sales were issued and mailed to the plaintiffs at their Chicago addresses on April 11, 1969. In August and September, 1970, all of the plaintiffs elected to rescind their purchases of London Ben. Notice was given to the defendants of the decision in each case. Rescission was based on the grounds that the securities had been sold in violation of the Illinois Securities Act because they were not registered, nor were they exempted from registration inasmuch as the defendants failed to file a 4G report.

Section 137.12 of Ill.Rev.Stat., ch. 121½, states that it is a violation of Illinois law to “sell any security except in accordance with the provisions of this Act” or to “fail to file with the Secretary of State any application, report or document required to be filed under the provisions of this Act . . . . ” Section 137.13 provides that “every sale of a security made in violation of the provisions of this Act shall be voidable at the election of the purchaser.” Upon tender to the seller of the securities,

“the issuer, . . . underwriter, dealer or other person by or on behalf of whom said sale was made, and each underwriter, dealer or salesman who shall have participated or aided in any way in making such sale, shall be jointly and severally liable to such purchaser for (1) the full amount paid, together with interest from the date of payment for the securities sold . . . less any income or other amounts received by such purchaser on such securities and (2) the reasonable fees of such purchaser’s attorney incurred in any action brought for recovery of the amounts recoverable hereunder.”

Sale or sell is defined in § 137.2-5 to “include every disposition, or attempt to dispose, of a security for value.” Section 137.4(G) provides that the registration provisions of the Act (§§ 137.5-137.7) shall not apply to sales of securities to 25 persons or less if the issuer or dealer files a report of sale with the Secretary of State within 30 days of the sale including information as to the name and address of the issuer, whether the sale was for the direct or indirect benefit of that person, the total amount of securities sold under the section, the price at which they were sold, commissions, names and addresses of purchasers, and a statement that offers to sell such securities were not made to persons in excess of the number permitted under the section.

It is undisputed that the defendants in this case filed no reports with the Secretary of State. The district court nevertheless held that plaintiffs were not entitled to rescission under the Illinois Securities Act provisions summarized above, basing its decision on two grounds: First, that the sales had taken place in New York and not in Illinois; and second, that even if the sales were in Illinois, there would be no remedy because the remedial provisions of the Illinois Securities Act were “limited to rescinding sales made in violation of the Act, not validly consummated sales which the seller thereafter failed to report.” The district court also held that if the statute were construed to cover the sales in question, constitutional difficulties would be presented.

The second ground for the district judge’s decision, that the Illinois Securities Act would not provide a remedy for failure to file a 4G report even if the sale occurred in Illinois, was not argued by the defendants to that court and they expressly disclaimed any reliance on that ground at oral argument in this appeal, correctly noting that Mark v. McDonnell & Co., 447 F.2d 847 (7th Cir. 1971), holding that the failure to file a report enables a purchaser to rescind, precluded such a result.

The district court’s decision finding that the sale of securities to these plaintiffs did not take place in Illinois is premised upon the fact that after plaintiffs’ checks and investment letters were received in Chicago by Weis, Voisin, the checks were forwarded by the defendant to its New York offices and deposited in its New York bank account. The confirmations and stock certificates were also issued to the plaintiffs from New York. The district court concluded from these facts that the actual sale of securities took place in New York and that the broad definition of sale in § 137.2-5 was irrelevant since' the “sale” plaintiffs were attempting to rescind was the completed sale which was only concluded when the defendants “accepted” plaintiffs’ offer to buy in New York.

The term sale as defined in the Illinois Securities Act cannot be so limited. The language of the statute specifically encompasses the sale of London Ben stock to these plaintiffs. Section 137.-2-5 provides:

“ ‘Sale’ or ‘sell’ shall have the full meaning of that term as applied by or accepted in courts of law or equity, and shall include every disposition, or attempt to dispose, of a security for value. ‘Sale’ or ‘sell’ shall also include a contract to sell, an exchange, an attempt or an offer to sell, an option of sale or a solicitation of an offer to buy, directly or indirectly; . . . ”

The defendants in this case offered to sell the securities in question in solicitations made to persons all but one of whom were in the state at the time of the solicitation, by representatives in Illinois, received acceptances of their offer in Illinois from persons all but one of whom were in Illinois at the time of the mailing of the acceptance, and mailed confirmations and stock certificates to Illinois residents at their Illinois addresses. Whether or not a common law definition of sale would therefore place the consummation of the sale in New York is therefore irrelevant to the statutory definition. Defendants became subject to the statute at least when they successfully completed the sale of London Ben stock after soliciting offers to buy in Illinois. To construe the language of the statute otherwise would permit an issuer or dealer to solicit sales at will in Illinois without complying with the statute, so long as an act entirely within the seller’s control, such as placing the proceeds in a bank account or issuing stock certificates, was performed at or from some other place. Illinois residents should not be so helpless in obtaining protection through their own state legislature or dependent upon the possibility of aid from the laws of another state, particularly when they might be unable to even determine which state would be the state of sale at the time they accepted the offer to purchase.

The purpose of the Illinois Securities Act, as stated by the Illinois appellate courts, also clearly contemplates the sale to these plaintiffs. The Illinois Appellate Court specifically considered the scope of the statutory definition under consideration here in Silverman v. Chicago Ramada Inn, Inc., 63 Ill.App.2d 96, 211 N.E.2d 596, 599 (1965), stating:

“This definition of a sale is in itself liberal. Its obvious purpose is to exclude nothing that could possibly be regarded as a sale. Under this broad and unambiguous definition every step toward the completion of a sale would be a sale. The words ‘shall include every disposition * * * of a security for value’ are themselves all-encompassing. . . .
•X- * * * * #
“The solicitation by the defendants constituted a sale under the statute as did the payments made by the plaintiffs in March and May 1959. The plaintiffs, if they had known that the securities were illegally sold, could have instituted their rescission action after the agreement to purchase was reached; they could have sued to recover after the first payment or after any one of the interim payments. All were sales under the Act and all were voidable at the option of the purchasers.”

This interpretation of the word sale appears to be in accord with the general statement of the paternalistic purpose of the Act stated in Meihsner v. Runyon, 23 Ill.App.2d 446, 163 N.E.2d 236 (1960), and Foreman v. Holsman, 10 Ill. 2d 551, 141 N.E.2d 31 (1957) (interpreting the predecessor to the Illinois Securities Act of 1953). The court in Meihsner, supra, 23 Ill.App.2d 446, 163 N.E.2d at 241, stated that the purpose of the Illinois Securities Act was “to protect innocent persons who may be induced to invest their money in speculative enterprises over which they have little or no control. The Act is paternalistic in character and should be liberally construed to better protect the public from deceit and prevent fraud in the sale of . . . securities within the state.”

The defendants argue, however, that since it is not the preliminary-steps in the sale which plaintiffs seek to rescind, but the completed transaction, the above authorities are inapposite. The fallacy of this argument is that it attempts to impose a common law concept of sale upon the statutory definition. Neither the language nor the Illinois decisions permit such a construction. Cf., Kreis v. Mates Investment Fund, Inc., 473 F.2d 1308, 1312-1313 (8th Cif. 1973). The broad paternalistic purposes of the Act can only be achieved through a literal reading of the statute. Inasmuch as all preliminary steps were taken in Illinois, the confirmations and stock certificates were delivered in Illinois to Illinois residents, and a sale was transacted in each case, the defendants were subject to the Illinois Securities Act and were required to submit a 4G report upon the completion of the sale.

There is no constitutional infirmity in this construction. The Supreme Court long ago upheld the constitutionality of state blue sky laws in Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 37 S.Ct. 224, 61 L.Ed. 493 (1917); and Merrick v. N. W. Halsey & Co., 242 U.S. 568, 37 S.Ct. 227, 61 L.Ed. 498 (1917). The Supreme Court has also upheld specifically the right of a state to regulate solicitations of its citizens by a corporation outside the state. Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 48 S. Ct. 124, 72 L.Ed. 277 (1927).

The final question raised in this appeal relates to the imposition of liability on Weis, Voisin for the failure of London Ben to file the 4G report. Weis, Voisin points to the language in Ill.Rev. Stat., ch. 121½, § 137.4(G), providing that “the issuer, controlling person or dealer” shall file a report with the Secretary of State within 30 days of a sale. However, § 137.13 of the Act, giving a civil remedy of rescission for violations of the statute, states that “each underwriter, dealer or salesman who shall have participated or aided in any way in making such sale . . . shall be jointly and severally liable to such purchaser.” Weis, Voisin participated and aided in the sale to these plaintiffs and was in a position to insure that London Ben complied with the provisions of the Illinois - Securities Act. It is therefore jointly liable for the failure of London Ben to file the 4G report.

We reverse and remand with instructions to enter judgment rescinding the sale of stock in No. 72-1441, wherein the plaintiffs moved for summary judgment. Interest and attorneys’ fees should also be awarded pursuant to Ill.Rev.Stat., ch. 121½, § 137.13. No. 72-1647 is reversed and remanded for proceedings consistent with this opinion.

Reversed and remanded with directions.

      . Plaintiff Rosenstone received his solicitation while in Florida and accepted the offer to buy from that state. The fact that the defendants solicited him from Illinois, knew lie was an Illinois resident, mailed his confirmations to his Illinois address and received his acceptance letter and check in Illinois nevertheless bring this sale within the reach of the Illinois Securities Act.

      . The plaintiff in No. 72-1647 has not yet moved for summary judgment. That appeal is therefore before us only on the granting of summary judgment for defendants.