Kaye v. United States

Decision Date05 January 1910
Docket Number1,454.
PartiesKAYE v. UNITED STATES.
CourtU.S. Court of Appeals — Seventh Circuit

Petition for Rehearing Overruled February 11, 1910.

Under an indictment in five counts plaintiff in error was found guilty by the jury and sentenced by the court to two years' imprisonment at hard labor.

The indictment was drawn under sections 1 and 3 of the act of February 10, 1891 (26 Stat. 742, c. 127; section 5462, Rev St. (U.S. Comp. St. 1901, pp. 3686, 3687); Act March 3, 1903 c. 1015, 32 Stat. 1223; section 5462, Rev. St. (U.S. comp St. Supp. 1903, p. 445)), which are as follows:

'Section 1. That every person who, within the United States or any territory thereof, makes any die, hub or mold, either of steel or plaster or any other substance whatsoever, in likeness or similitude, as to the design or the inscription thereon, of any die, hub or mold designated for the coining or making of any of the genuine gold, silver, nickel, bronze, copper or other coins of the United States that have been or hereafter may be coined at the mints of the United States, or who willingly aids or assists in the making of any such die, hub, or mold, or any part thereof, or who causes or procures to be made any such die, hub, or mold, or any part thereof, without authority from the Secretary of the Treasury of the United States or other proper officer, or who shall have in his possession any such die, hub, or mold with intent to fraudulently or unlawfully use the same, or who shall permit the same to be used for or in aid of the counterfeiting of any of the coins of the United States hereinbefore mentioned shall, upon conviction thereof, be punished by a fine of not more than five thousand dollars and by imprisonment at hard labor for not more than ten years, or both, at the discretion of the court.'

'Sec. 3. That every person who makes, or who causes or procures to be made, or who brings into the United States from any foreign country, or who shall have in possession with intent to sell, give away, or in any other manner use the same, any business or professional card, notice, placard, token, device, print, or impression, or any other thing whatsoever, in likeness or similitude, as to design, color, or the inscription thereon, of any of the coins of the United States or of any foreign country that have been or hereafter may be issued as money, either under the authority of the United States or under the authority of any foreign government, shall, upon conviction thereof, be punished by a fine not to exceed one hundred dollars.'

First count was for having in possession, with intent to use, two 'devices, prints, and impressions' made of metal and plaster and other substances in similitude of the 25-cent silver coin of the United States.

Second, third, and fourth counts, differing only as to denominations of the coins, were for having in possession, with intent to use the same fraudulently and unlawfully, dies, hubs, and molds made of metal and plaster and other substances in similitude of (severally specified) silver coins of the United States.

Fifth count was for making and causing to be made two dies, hubs, and molds of metal and plaster and other substances in similitude of the 25-cent silver coin of the United States, without authority from the Secretary of the Treasury of the United States or other proper officer, and with the intent to use the same fraudulently and unlawfully.

Section 5457 (U.S. Comp. St. 1901, p. 3683), referred to in the opinion, reads as follows: 'Every person who falsely makes, forges, or counterfeits, or causes or procures to be falsely made, forged, or counterfeited, or willingly aids or assists in falsely making, forging, or counterfeiting any coins or bars in resemblance or similitude of the gold or silver coins or bars which have been or hereafter may be coined or stamped at the mints and assay offices of the United States, or in resemblance or similitude of any foreign gold or silver coin which by law is or hereafter may be current in the United States, or are in actual use and circulation as money within the United States, or who passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or bring into the United States from any foreign place, knowing the same to be false, forged, or counterfeit, with intent to defraud any body politic, or corporate, or any other person or persons whatsoever, or has in his possession any such false, forged, or counterfeited coin or bars, knowing the same to be false, forged, or counterfeited, with intent to defraud any body politic or corporate, or any other person or persons whatsoever, shall be punished by a fine of not more than five thousand dollars and by imprisonment at hard labor not more than ten years.'

The further facts, necessary to be considered, are stated in the opinion.

John F. Greeting and Arthur V. Lee, for plaintiff in error.

Edwin W. Sims, U.S. Atty., W. A. Northcott, U.S. Dist. Atty., and H. A. Converse, Asst. U.S. Dist. Atty.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER Circuit Judge (after stating the facts as above).

Charges of misdemeanor and of felony were joined in the indictment the jury returned their verdict in the form of, 'We, the jury, find the defendant guilty,' and the court assessed the punishment for felony. Upon this, defendant insists that the judgment must be reversed because, matching the verdict with the indictment, it does not appear but that the jury intended only to find him guilty of misdemeanor. But we are of the opinion that the verdict should be read in the light of the record which defendant helped to make. The trial, with defendant's acquiescence, was an investigation of an alleged misdemeanor and of two classes of alleged felonies. The misdemeanor charge was distinguished from the felony charges in the court's instructions to the jury. Taking the instructions as a whole, we find that the court told the jury to return a verdict of guilty only on such count or counts as they believed beyond a reasonable doubt were sustained by the evidence. No instructions as to the form of the verdict were requested by defendant. No exceptions to the instructions in that regard were taken. No objection was interposed to the...

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