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312 U.S.

know what the testimony was which is relied upon for the amnesty. We think that neither offer was an adequate proffer. In neither instance was the petitioner given an opportunity to cross-examine; no witness produced the transcript; it was not certified as a part of the record from the trial court or as a part of the records of the agency." The record certified to the Circuit Court of Appeals is the record on which the appeal is to be heard. Criminal Appeals Rules VIII and IX.

The refusal to permit the accused to prove his defense may prove trivial when the facts are developed. Procedural errors often are. But procedure is the skeleton which forms and supports the whole structure of a case. The lack of a bone mars the symmetry of the body. The parties must be given an opportunity to plead and prove their contentions or else the impression of the judge arising from sources outside the record dominates results. The requirement that allegations must be supported by evidence tested by cross-examination protects against falsehood. The opportunity to assert rights through pleading and testimony is essential to their successful protection. Infringement of that opportunity is forbidden.12

Other Objections. As the case must be remanded, petitioner's objection to the three-year sentence on the conspiracy count is sustained without discussion. Criminal Code, 37; 18 U. S. C. § 88. Frivolous objection is made to the indictment because it is endorsed "A true bill, Ernest W. Clarke, Foreman" instead of "Foreman of the grand jury." This contention is rejected.

Petitioner brings here for review his demurrer to the indictment and each count thereof. The Circuit Court of Appeals found the conspiracy count sufficient against

"Cf. R. S. § 882, as amended, 48 Stat. 1109. "Cf. Walker v. Johnston, 312 U. S. 275.

473

Opinion of the Court.

an attack that, in charging a conspiracy to violate the Securities Act of 1933 by selling unregistered securities, the count failed to charge that the securities so sold were not of the class exempted from registration under section three of the Act and the rules and regulations thereunder. With this ruling we agree.' 13 As the sentence under count eleven, the conspiracy count, was for as long a time as any of the other counts upon which concurrent sentences had been imposed, the Circuit Court of Appeals did not review the alleged deficiencies of the other counts.

Counts four and five are charged with the same fault as eleven. For a like reason we hold them good. Counts one and two describe the scheme to defraud and allege instances of the use of the mails. The brief of petitioner fails to raise any question deserving consideration as to their sufficiency and we see none. Petitioner challenges count three for failure to state the materiality of facts which the count charges were omitted, although they were required to be stated to avoid misleading purchasers. But the count, after describing various omitted facts by paragraphs, ends such paragraphs with the allegation

14

"such fact being well known to said defendants and each of them at all times herein mentioned, and such fact being material in order to make the statements made by said defendants, in the light of the circumstances under which they were made, not misleading.

The facts alleged were obviously material. Counts six to ten inclusive are based upon the mail fraud statute.15 Petitioner's objection to these counts is that a later act, the Securities Act of 1933, makes it unlawful to use the

13

11

McKelvey v. United States, 260 U. S. 353, 357.

"§ 17 (a) (2), Securities Act of 1933; 15 U. S. C. 77q (a) (2).

mails to defraud by the sale of securities. His argument is that, in so far as the later act prohibits the fraudulent sale of securities by mail, it repeals by implication the provisions of the old mail fraud statute in so far as they cover securities. We see no basis for a conclusion that Congress intended to repeal the earlier statute. The two can exist and be useful, side by side.16

Reversed.

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

BREISCH v. CENTRAL RAILROAD OF NEW

JERSEY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 384. Argued January 17, 1941-Decided March 3, 1941.

1. The remedy of an employee of an interstate railway for personal injuries suffered while he was engaged about intrastate transportation and caused by a breach of the Federal Safety Appliance Acts, is the remedy afforded by the common or statutory law of the State. P. 486.

2. The Federal Safety Appliance Acts create the right; the remedy is within the State's discretion. P. 486.

3. A fixed interpretation of a state statute by the supreme court of the State should be accepted by the federal courts when it does not obviously depend altogether on a misconception of federal law. P. 488.

4. In construing the state Workmen's Compensation Act as inapplicable to causes of action arising under the Federal Safety Appliance Acts and in ruling that the remedy in such cases is by action at law, the Supreme Court of Pennsylvania does not

16

18 Cf. United States v. Rollnick, 91 F. 2d 911, 918; United States v. Montgomery, 21 F. Supp. 770; United States v. Alluan, 13 F. Supp. 289.

484

Opinion of the Court.

appear to have been actuated entirely by a misunderstanding of the federal Acts. P. 489.

Confirmatory of this conclusion is the Pennsylvania statute providing "That when a court of last resort has construed the language used in a law, the Legislature in subsequent laws on the same subject matter intend the same construction to be placed upon such language," and the fact that the state court's constructions of the Compensation Act and of jurisdiction over claims arising under the Safety Appliance Acts remain undisturbed by the subsequent amendments of the Compensation Act. P. 491. 112 F. 2d 595, reversed.

CERTIORARI, 311 U. S. 634, to review the reversal of a judgment for personal injuries resulting from violations of the Federal Safety Appliance Acts.

Mr. Fred B. Gernerd, with whom Mr. David Getz was on the brief, for petitioner.

Mr. Henry B. Friedman, with whom Mr. George W. Aubrey was on the brief, for respondent.

MR. JUSTICE REED delivered the opinion of the Court.

This certiorari brings here the question as to whether the law of Pennsylvania limits recovery under the provisions of the Federal Safety Appliance Acts to the procedure and awards of that state's Workmen's Compensation Act in accidents where the railway employee is engaged in an intrastate activity at the time of injury.

The suit was brought at common law in the Federal District Court for the Eastern District of Pennsylvania on the ground of diversity of citizenship. The employee, petitioner here, was a citizen of Pennsylvania and the defendant was a corporation created under the laws of New Jersey, handling transportation moving between states. The basis of the action was respondent's violation of the Safety Appliance Acts by failure to furnish efficient hand

Opinion of the Court.

312 U.S.

brakes for a car. This failure resulted in an injury to petitioner in Pennsylvania. No interstate commerce was involved. He recovered in the trial court but the judgment was reversed by the Circuit Court of Appeals on its determination that the remedy of the petitioner lay solely in the Compensation Act and was not cognizable at law." We granted certiorari because of an alleged conflict on a question of local law between the judgment below and Miller v. Reading Company.

No issues arise except the one upon procedure. It is clear that an employee injured in intrastate transportation by defective equipment of an interstate railroad comes under the Safety Appliance Acts. Nor is there any longer a question as to the power of the state to provide whatsoever remedy it may choose for breaches of the Safety Appliance Acts. The federal statutes create the right; the remedy is within the state's discretion. In this case we are to find what remedy the State of Pennsylvania has provided.

This Court had occasion to consider the matter of what remedies for breach of the Federal Safety Appliance Acts had been provided by a state in Tipton v. Atchison, T. & S. F. Ry. Co. The circumstances there were quite similar to the present case. Tipton was an employee of a railroad which was a highway of interstate commerce and suffered injury through violation of the safety acts while engaged within California in intrastate transpor

'Act of April 14, 1910, § 2, 36 Stat. 298.

2112 F. 2d 595.

292 Pa. 44; 140 A. 618.

*Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33; Tipton v. Atchison Ry. Co., 298 U. S. 141.

"Moore v. Chesapeake & Ohio Ry. Co., 291 U. S. 205; Gilvary v. Cuyahoga Valley Ry. Co., 292 U. S. 57; Tipton v. Atchison Ry. Co., supra note 4.

6 298 U. S. 141.