O'BRIEN v. United States
| Decision Date | 17 February 1928 |
| Docket Number | No. 3965.,3965. |
| Citation | 25 F.2d 90 |
| Parties | O'BRIEN et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Seventh Circuit |
L. E. Stone and John G. Friedmeyer, both of Springfield, Ill., for plaintiffs in error.
Walter M. Provine, of Springfield, Ill., for the United States.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
Plaintiffs in error, with one Prenable, who was not apprehended, were indicted on four counts. The first and second charged robbery of the United States mails and assaulting a mail messenger with dangerous weapons, the third charged concealing and aiding in concealing stolen mail matter, and the fourth possession of stolen mail matter. The verdict was guilty, and all were sentenced to 25 years' imprisonment in the penitentiary on each of counts 1 and 2, and 5 years on each of counts 3 and 4, the terms to run concurrently.
It is urged that the evidence does not warrant the judgment, particularly as to Katofsky and Vigas. As to all it may be said that, without the evidence of Kirby or Shelton, the government's case would not have been established. Both witnesses admitted that they helped plan the robbery; Kirby withdrawing a short time before it occurred, because dissatisfied with the arrangements, and Shelton admitting actual participation, having been caught practically in the act. One or both testified in detail as to the part played by each of plaintiffs in error in the planning and organization of the robbery, and as to O'Brien's actual participation in it. Careful scrutiny of their testimony convinces us that, if believed by the jury, it is sufficient to sustain the conclusion that all three were instrumental in the instigation and planning of the robbery, and advised, encouraged, or assisted in devising ways and means for carrying it into execution — Katofsky at St. Louis, but not personally within the district where it occurred, Vigas at Springfield, where the robbery was enacted, but not shown to have been actually present and taking part in the robbery, and O'Brien being shown additionally to have assisted in the robbery.
Unquestionably Kirby and Shelton are both disreputable characters, whose testimony a jury should be cautious in accrediting, especially where its effect may be to deprive one of his liberty. But it may well be conceived that a witness, however degraded and criminal, may tell a story which bears the stamp of truth; and so the federal courts have departed from the rule of wholly rejecting the evidence of accomplice witnesses, unless corroborated by other and credible testimony or by facts and circumstances appearing in evidence, and hold that such evidence, if believed by the jury, may alone afford basis for conviction, the jury being cautioned to scrutinize it with care. Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502 Ann. Cas. 1917B, 1168; Wolf v. United States (C. C. A.) 283 F. 885.
Under this rule, and so tested, we are not at liberty to set aside the judgment against any of these plaintiffs in error because alone of the bad character of these witnesses, and their admitted participation in the planning or executing of the crime.
For Katofsky and Vigas, but particularly the former, who was not shown to have come within the court's jurisdiction, it is especially urged that the conviction cannot be sustained under the indictment, which charges them with being principals, and fails to charge them with being aiders and abettors, or accessories before the fact, as specified in section 332 of the Criminal Code (18 USCA § 550), under which those who aid, abet, counsel, command, induce, or procure the commission of an offense defined in any law of the United States are declared to be principals. In the case of Colbeck et al. v. United States (C. C. A.) 10 F.(2d) 401, the identical proposition was urged on behalf of Hackethal, who was not present at that mail...
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