Fowler v. United States
| Decision Date | 16 May 1921 |
| Docket Number | 3597. |
| Parties | FOWLER et al. v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Ninth Circuit |
John F Dore, of Seattle, Wash., for plaintiffs in error.
Robert C. Saunders, U.S. Atty., and Francis C. Reagan, Asst. U.S Atty., both of Seattle, Wash.
The plaintiffs in error, Lemuel S. Fowler and Thomas Singer, with 15 others, were indicted under three counts:
Under count 3, for having conspired to defraud the United States by stealing, carrying away, purloining, and embezzling, and converting to their own use, goods and chattels then and there moving in and constituting interstate shipment under federal control, and then and there being in the possession of the United States as a common carrier of goods for hire also certain tools, equipment, and property then and there used in the maintenance and operation of certain railroad routes and transportation systems then and there under federal control.
Certain of the defendants, including Fowler, but not Singer interposed a demurrer to each count of the indictment, which was overruled. After trial, Fowler and Singer were, with others of the defendants, but not all of them, convicted. From the judgment following conviction, Fowler and Singer prosecute a writ of error.
Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.
WOLVERTON District Judge (after stating the facts as above).
By their third assignment of error, plaintiffs in error challenge the sufficiency of each count of the indictment. Counsel in his brief here admits the sufficiency of the first count, but insists that the second and third counts are not good, because the property that it was charged to be the purpose of the conspirators to purloin was not the property of the United States, and could not be so considered, within the purview of section 35 of the Penal Code as amended, or of section 37 of such Code (Comp. St. Sec. 10201).
We think it a sufficient answer to this contention to say that the general government was at the time in the actual control and management of the railroads of the country in pursuance of law, and was acting in that capacity as a bailee for hire. As such common carrier, it had a special property in the goods, chattels, and merchandise carried, and by virtue of such ownership it was entitled to maintain as against third parties an action for damages to the property, or to recover possession thereof, if wrongfully taken from it. 6 Cyc. 435.
So it is that in an indictment for larceny it is sufficient to allege ownership in the lawful possessor of the goods, whether such owner has the legal title or not. 25 Cyc. 89. We are of the opinion, therefore, that such special ownership in the government, in view of the indictment, meets the purposes of section 35 of the Penal Code as amended, and of section 37 of such Code, and that counts 2 and 3 of the indictment are sufficient.
Assignments of error 1, 2, and 4 may be considered together. They relate to certain motions addressed to the court to require the government to elect upon which of several supposed conspiracies it would proceed to trial. For instance, at the conclusion of the testimony given by William Ratcliff, a witness for the government, who was jointly indicted with the other defendants and entered a plea of guilty, and when it was attempted to examine Roy Ayers, also a witness for the government, the defendants moved that the government be required to elect as to which of the several conspiracies that might appear to have been entered into by the several alleged conspirators it would pursue on the trial. The statement of counsel at the time indicates the purpose of the motion. He says:
'Now, to narrow this case, we demand at this time, or at least to save time, the government state to the court what conspiracy they are trying here, and who they intend to prove the conspirators are, and they be permitted to introduce no testimony against any defendant, except such as they may state to the court their proof will show to be members of the conspiracy that Ratcliff has already testified to.'
The court overruled the motion, on the ground that he could not say in advance what the evidence would be. This ruling counsel now admits was not error. At the conclusion of the government's testimony, the defendants again moved:
'That the government be compelled to elect upon which of the number of separate and distinct and unrelated and disconnected criminal agreements the proof as framed shows to have been established the government seeks a conviction.'
This was based upon the contention that the testimony of Ratcliff disclosed that he had an agreement with Dave Jones and Hanson to steal certain shoes and matting, and that he never had any further criminal agreement with any of the other defendants, or any person, except the arrangement he had with the decoy salesman, Ayers.
Ratcliff did say, on cross-examination, that Hanson and Jones were the only defendants with whom he had an agreement to commit a crime against the railroad. This relates to an express understanding he had with these two defendants. Ratcliff was a conductor on a freight train of the railroad. C. H. goldman, Dave Jones, and H. W. Hanson were brakemen on the same train. Ratcliff testified that he overheard a conversation between Jones and Hanson relative to getting some cases of shoes from a freight car; that after the conversation they carried the shoes off the train and put them in the salal brush; that Hanson said he had a sale for the shoes, and that the money would be divided among the three of them (Ratcliff, Jones, and Hanson); that Hanson gave samples of the shoes to a man by the name of Ayers, to be sold at Renton; that later, on the evening of March 27th, the witness, Hanson and his wife, and Ayers went to the place of deposit and got two cases of the shoes, put them into Ayers' car, and took them to Auburn. On arriving there Hanson, claiming to be tired, prevailed upon Ratcliff to go to Renton and collect the money for the shoes. Witness and Ayers went to the St. Elmo Hotel in Auburn to find Fowler, one of the plaintiffs in error. Not finding him there, they went to the foot of Cemetery Hill and worked a signal a few times, in response to which...
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