Hughes v. United States, 7192.

• Decision Date: 15 August 1963
• Docket Number: No. 7192.,7192.
• Citation: 320 F.2d 459
• Parties: Cleo Francis HUGHES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

320 F.2d 459 (1963)

Cleo Francis HUGHES, Appellant, v. UNITED STATES of America, Appellee.

No. 7192.

United States Court of Appeals Tenth Circuit.

July 26, 1963.

Rehearing Denied August 15, 1963.

Joseph C. Ryan (of Seligman & Ryan), Albuquerque, N. M., for appellant.

Lewis O. Campbell, Asst. U. S. Atty., Albuquerque, N. M. (John Quinn, U. S. Atty., Albuquerque, N. M., on the brief), for appellee.

Before PHILLIPS, PICKETT and SETH, Circuit Judges.

PICKETT, Circuit Judge.

The defendant, Hughes, appeals from a conviction on an 8-count indictment charging him with using the mails for the delivery of nonmailable matter, in violation of 18 U.S.C. §§ 1718, 1461, and 1463.¹ This appeal presents the questions of the sufficiency of the evidence to sustain the verdict; error in the admission of evidence of crimes or acts other than those set forth in the indictment; and prejudicial examination of an expert witness by the court.

At the conclusion of the prosecution's case, the court denied a motion for a judgment of acquittal. The defendant then offered evidence in his own defense, and the motion was not renewed at the conclusion of all of the evidence. We have repeatedly held that if, after the denial of a motion for acquittal or for a directed verdict, a defendant presents evidence in defense of the charge, he waives any objection he may have had to the denial of the motion. In the absence of a motion for a judgment of acquittal at the close of all of the evidence, federal appellate courts will not pass upon the sufficiency of the evidence to support the verdict. Corbin v. United States, 10 Cir., 253 F.2d 646; Johns v. United States, 10 Cir., 227 F.2d 374.

In view of the insistence that the evidence is insufficient to sustain the verdict, and the statement of defendant's counsel in oral argument that the conviction is a miscarriage of justice, we, regardless of procedural deficiencies, reviewed the evidence in detail and have concluded that the verdict and the judgment and sentence thereon have ample support in the evidence. Viewing the evidence and the inferences to be drawn therefrom in the light most favorable to the prosecution, as we must,² it reveals that over a period of years there had been a very close association between the defendant and his wife with William J. Slusser and his wife, Ora, and their four minor children. The Slusser children spent considerable time in the Hughes' home, and were taken on numerous trips by them over a period of years. The Hughes insisted that they loved the children to the same extent as though they were their own, and continuously lavished attention and expensive gifts upon them. They seemed to be particularly fond of a 13 year old daughter. In 1960 they took Mrs. Slusser and her daughter on a three weeks' trip to Florida. Early in 1961 the Slussers concluded that it would be to the best interest of the children to put a stop to this relationship, or at least to curtail it. Hughes was indignant when told of this and for a considerable time thereafter he continuously harassed Mrs. Slusser with numerous telephone calls. At first these calls were friendly, but later his statements became abusive. The telephone calls continued until the Slussers obtained an unlisted number. In a conversation Hughes told Mrs. Slusser that he would make her sorry of the day they met, and would make her children sorry of the day that she was their mother.³ During this conversation, he also displayed a "mimeographed letter" to Mrs. Slusser, telling her that he had 20 to 25 of these prepared and that she would receive the first letter the next day. Shortly thereafter printed material came through the mail addressed and delivered to the Slussers which was exceedingly filthy, vile and lascivious. During the same period similar material was found in the mail boxes or at the homes of a number of friends, neighbors and relatives of the Slussers. This material was all reproduced by a machine which was referred to in the evidence as a "Ditto" machine. A typewritten, obscene letter was left at a school for delivery to the daughter.

The reproduced material was all prepared by the same kind of a machine, and Mrs. Slusser testified that it was of the same type as that which had been shown to her by Hughes during their conversation. Hughes was employed in an office where he used a Ditto machine that reproduced typewritten material similar to that received in the mail and distributed in the Slusser's neighborhood. This material was also similar to an exhibit which Hughes admitted he had prepared on the Ditto machine in connection with another matter. Throughout the exhibits there was a tendency to misspell certain words. In a known writing which Hughes prepared for a postal inspector this tendency existed as to these words. After the investigation and interview of Hughes by the postal inspector, no more such material was received through the mail or distributed in the area where the Slussers lived. Although much of the evidence is circumstantial, it appears that it would have been difficult for a jury to arrive at any other verdict than it did.

The appellant contends that the trial court erred in admitting into evidence the obscene material found by neighbors and relatives of the Slussers which was not identified with the charges in the indictment. This material was circulated during the period that similar material was sent to the Slussers through the mail. Considering the circulation of the obscene material to be a crime, this does not necessarily make it inadmissible in this case. Proof of other crimes is not ordinarily admissible in the trial of a criminal case, but such evidence may be admissible to prove "intent, design, and system," Lisenba v. California, 314 U.S. 219, 227, 62 S.Ct. 280, 86 L.Ed. 166; "a continuing course of conduct," Doty v. United States, 10 Cir., 261 F.2d 10, 13; "guilty knowledge, intent, design or mental predisposition," Harbold v. United States, 10 Cir., 255 F.2d 202, 204; "intent * * * course of conduct, or * * * the crime charged," Jones v. United States, 10 Cir., 251 F.2d 288, 294, cert. den. 356 U.S. 919, 78 S.Ct. 703, 2 L.Ed.2d 715; or "capacity, habit, plan, knowledge, intent, motive, or identity", United States v. Frascone, 2 Cir., 299 F.2d 824, 828, cert. den. 370 U.S. 910, 82 S.Ct. 1257, 8 L.Ed.2d 404. The evidence in this instance was admissible to establish a course of conduct and to identify the defendant.⁴

Finally, it is contended that the court erred in its questioning of a psychiatrist who was called by the defendant to testify as to the mental competency of Hughes. It is urged that the court's questioning tended to adduce answers from the witness...