United States v. Litberg, 9749.

• Decision Date: 14 June 1949
• Docket Number: No. 9749.,9749.
• Parties: UNITED STATES v. LITBERG.
• Court: U.S. Court of Appeals — Seventh Circuit

175 F.2d 20 (1949)

UNITED STATES v. LITBERG.

No. 9749.

United States Court of Appeals Seventh Circuit.

June 14, 1949.

Maurice J. Walsh, Chicago, Illinois, for appellant.

Otto Kerner, Jr., U. S. Atty., John A. Looby, Jr., Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and MINTON and DUFFY, Circuit Judges.

MAJOR, Chief Judge.

The defendant was charged in a four count indictment, each of which alleged a violation on November 29, 1947, of Sec. 265 now § 472, Title 18 U.S.C.A. The first count charged the defendant with passing upon one Roy Worst a counterfeited $5 federal reserve note, with intent to defraud and with knowledge that it was counterfeit. The second count charged the passing of a similar note upon one Mildred Stevens, with intent to defraud and with knowledge that it was counterfeit. The third count charged the passing of a similar note upon Jean Johnson, with intent to defraud and with knowledge that it was counterfeit. The fourth count charged the defendant with possession of four counterfeited $5 federal reserve notes, with knowledge that they were counterfeit. Three of the counterfeited notes referred to in this count are the same as those described in counts one, two and three. The fourth note described in this count is one which it is claimed the defendant burned.

The case was tried to the court without a jury, and at the close of the government's case the court dismissed count three on defendant's motion, for want of proof. The court denied a motion to dismiss as to counts one, two and four, found the defendant guilty, and upon such finding on June 23, 1948 entered its judgment of conviction, from whence this appeal comes.

The principal contention before this court, urged with vigor and apparent sincerity, is that the evidence is not sufficient to support the judgment. Such a contention, where the proof in support of an essential element of the crime is doubtful and particularly where it depends upon inferences drawn from circumstances in proof, presents a difficult and perplexing problem for a court of review. On the one hand, we must keep in mind the oft repeated rule that the weight and credibility to be attached to testimony of the witnesses is a matter for the trier of the facts and that we are required to take that view of the evidence most favorable to the government. On the other hand, while the trier of the facts is entitled to draw all reasonable inferences from the circumstances in proof, a court of review is charged with the responsibility of determining the reasonableness of such inferences. In other words, an inference may not properly be relied upon in support of an essential allegation if an opposite inference may be drawn with equal consistency from the circumstances in proof. In United States v. Tatcher, 3 Cir., 131 F.2d 1002, 1003, the court reversing a conviction based on inferences stated: "To justify conviction of crime where the evidence relied upon is circumstantial in nature the evidence must be such as to exclude every reasonable hypothesis but that of guilt. United States v. Russo, 3 Cir., 1941, 123 F.2d 420. As we have seen, the evidence relied upon to sustain the defendant's conviction is as consistent with his innocence as with his guilt."

In United States v. Russo, 3 Cir., 123 F. 2d 420, 423, where knowledge was an essential element of the offense charged, it was held a judgment could not be sustained where the inference of lack of knowledge was as readily deducible as that of knowledge. See also Isbell v. United States, 8 Cir., 227 F. 788, 792; Pierce v. United States, 6 Cir., 115 F.2d 399, 400; Hammond v. United States, 75 U.S.App.D.C. 395, 127 F.2d 752, 753.

The scienter of the offenses charged is that the notes were passed or possessed "with intent to defraud and with knowledge that they were counterfeited," and in the absence of proof of such intent and knowledge a judgment of conviction cannot stand. United States v. Carll, 105 U.S. 611, 613, 26 L.Ed. 1135; United States v. Ruffino, 2 Cir., 67 F.2d 440.

Thus, our problem is whether we, from the facts and circumstances in proof, should accept the inference indulged in by the trial court that the defendant was possessed of such intent and knowledge. In deciding this question we think we must accept the proof most favorable to the government's theory, even though some of it is of doubtful validity and open to serious dispute. In this view a statement of the controverted facts is unnecessary.

The defendant is a married man with a family of three children. He is a baker by trade and is engaged in the bakery business with two of his brothers. The business has been in existence for four years. He also owns the Arrow Kite Company, which manufactures a new design in kites. A number of witnesses testified at the trial that he sustained a good reputation in the community for truth and veracity and for being a law abiding citizen. Insofar as the record discloses, he has not been in any trouble or difficulty prior to the instant case.

On the evening of November 28, 1947, defendant according to his testimony, which is not disputed, went to the Stadium on West Madison Street to attend a basketball game. While there he made bets with various persons and won about $60. He left the Stadium shortly after midnight and visited two taverns, in each of which he had a drink. After leaving the second tavern he met Esther Pyse, and at his invitation they visited another tavern where they had a drink. The two of them left this place and went to Le Meck's Restaurant at 5300 Lake Park Avenue, Chicago, arriving sometime about 2 a.m. (November 29). Defendant had theretofore frequently patronized this place as it was located near his place of business; in fact, his business at one time was conducted in the same building with the restaurant. He was acquainted with the employees there and they were acquainted with him. The government's case rests upon proof of defendant's activities while at the restaurant on this occasion.

Defendant and Pyse first visited the tavern section of the restaurant where they were served five or six drinks by Roy Worst, a bartender. Worst had known the defendant for a year and a half and also knew Pyse as a former employee of Le Meck's Restaurant. Worst, at defendant's request, changed a $5 bill and placed it in his billfold. This is the note described in the first count of the indictment. Worst did not discover the bill was counterfeit until 7:30 that night. The defendant and Pyse left the tavern section and went to the restaurant part about 4 a.m., where they remained for almost an hour. They were waited on by Caroline Rolleck, who was acquainted with both the defendant and Pyse.

Rolleck testified that she saw the defendant light a cigar with a $5 bill. We will later discuss this incident which, in our opinion is the only circumstance of any consequence upon which an inference of knowledge on the part of the defendant could be deduced. The bill involved in this incident is one of those referred to in the fourth count of the indictment.

While siting in a booth, the defendant and Pyse were joined by Louise Diedrich, another employee of Le Meck's Restaurant whom they invited to have a drink. The three of...