269 F.2d 897 (10th Cir. 1959), 6088, Korholz v. United States

Docket Nº:6088-6090.
Citation:269 F.2d 897
Party Name:Herbert Frederick KORHOLZ, Appellant, v. UNITED STATES of America, Appellee. Fred William BIERIG, Appellant, v. UNITED STATES of America, Appellee. ROCK WOOL INSULATING COMPANY, also known as Rock Wool Insulation Corporation, a corporation, Appellant, v. UNITED STATES of America, Appellee.
Case Date:August 20, 1959
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 897

269 F.2d 897 (10th Cir. 1959)

Herbert Frederick KORHOLZ, Appellant,

v.

UNITED STATES of America, Appellee.

Fred William BIERIG, Appellant,

v.

UNITED STATES of America, Appellee.

ROCK WOOL INSULATING COMPANY, also known as Rock Wool Insulation Corporation, a corporation, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 6088-6090.

United States Court of Appeals, Tenth Circuit.

August 20, 1959

Rehearing Denied Sept. 18, 1959.

Page 898

[Copyrighted Material Omitted]

Page 899

Vasco G. Seavy, Sr., Pueblo, Colo. (Charles E. Grover and Anthony F. Zarlengo, Denver, Colo., on the brief), for appellants Herbert Frederick Korholz and Rock Wool Insulating Co.

John J. Gibbons, Denver, Colo., for appellant Fred Willian Bierig.

Robert S. Wham, Asst. U.S. Atty., Denver, Colo. (Donald E. Kelley, U.S. Atty., Denver, Colo., on the brief), for appellee.

Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

These consolidated cases present the appeals of a union official, a corporate employer, and its president, each having been convicted of a violation of 29 U.S.C.A. 186. 1 Claim is made by appellants that the indictment is basically faulty, that the evidence is insufficient to establish the elements of the statutory offense, and that the court erred in rulings as to the admissibility of evidence and in refusing two tendered instructions.

The indictment was in two counts. Count one charged that from about June 15, 1954 to April 17, 1956, Rock Wool Insulating Company did wilfully and unlawfully pay a total of $2,305 in money to Bierig who was then a representative of that company's employees and that Korholz, the company president, did wilfully aid and abet in the commission of the offense. Count two accused Bierig of the unlawful and wilful receipt and acceptance of the prohibited payment. The use of the words 'a total of $2,305.00 in money' premise appellant's principal contentions urging reversal and must be considered with an understanding of the factual background of the transaction.

On August 6, 1953, Bierig borrowed $2,000 from the Arkansas Valley Bank of Pueblo, Colorado, the indebtedness being evidenced by his promissory note due in 180 days and individually guaranteed by Korholz by separate instrument. 2 On the due date, Bierig paid the interest and $500 upon the principal and executed a renewal note for $1,515 representing the balance due under the first note with interest charged in advance. The note was thereafter renewed ten times, Bierig paying the interest but making no further payment upon principal. On one occasion in 1954 the principal amount was increased by $800 which Bierig received from the bank. The note was ultimately discharged on April 17, 1956, after a

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series of principal payments credited by the bank, in accordance with authorization from Korholz, through debiting an account owned by the Korholz family. In one instance only, a direct debit was made against the Rock Wool company account but in each other instance Rock Wool reimbursed the Korholz family account. Rock Wool's books reflected these payments as advances to its president, Korholz, until an accounting adjustment made in 1957 entered the amounts as expenses for labor relations service.

Appellants' complaint as to the indictment lies in the use of the words of aggregation describing payment made by Rock Wool and accepted by Bierig, 'a total of $2,305.00.' The fact that the words were used to signify numerous transactions of delivery and receipt, they urge, is borne out by evidence that the company made thirteen separate payments on eight different notes. Since proof of any one of these transactions would be sufficient to show a violation of that section of Taft-Hartley Act cited above, they contend the indictment is duplicitous and permits the jury to arrive at a verdict of conviction even though the jurors cannot agree as to the fact of any particular transaction. Inductive reasoning leads appellants to assert that Rule 8, Federal Rules of Criminal Procedure, 18 U.S.C.A., and the cases of Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct 710, 59 L.Ed. 1151, and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, require the prosecution to set forth each act in a separate count and prosecute it as a separate offense although concededly such could be done by one indictment and one trial. The Ebeling case permitted the prosecution and imposition of sentence on each of seven counts which separately alleged the cutting of a different mail bag, although all the destruction was a part of the same transaction. The Blockburger case was a narcotics case which approved of the prosecution as separate offenses of two sales of narcotics to the same buyer within a short period of time. But compare these cases with the recent case of Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905, where it was held that the transportation of two women for immoral purposes constituted but one punishable offense.

Whether or not appellants could be charged, convicted and sentenced for thirteen violations of 29 U.S.C.A. § 186 is of little consequence in the present case for the question is not raised by the posture of the case. The charge here was single, a violation of the Taft-Hartley Act, although the indictment undoubtedly proposed proof of guilt by a series of acts. The situation is analogous to that in Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097, where it is said at page 636 of 162 U.S., at page 955 of 16 S.Ct.:

'We are of opinion that the objection to the second count upon the ground of duplicity was properly overruled. The evil that congress intended to reach was the obtaining of money from the United States by means of fraudulent deeds, powers of attorneys, orders, certificates, receipts, or other writings. The statute was directed against certain defined modes for accomplishing a general object, and declaring that the doing of either one of several specified things, each having reference to that object, should be punished by imprisonment at hard labor * * *. We perceive no sound reason why the doing of the prohibited thing in each and all of the prohibited modes may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute. And this is a view altogether favorable to an accused who pleads not guilty to the charge contained in a single count, for a judgment on a general verdict of guilty upon that count will be a bar to any further prosecution in respect of any of the matters...

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