Arnold v. United States

• Decision Date: 13 January 1938
• Docket Number: No. 1540.,1540.
• Citation: 94 F.2d 499
• Parties: ARNOLD v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

94 F.2d 499 (1938)

ARNOLD v.UNITED STATES.

No. 1540.

Circuit Court of Appeals, Tenth Circuit.

January 13, 1938.

Kenneth W. Robinson, of Denver, Colo. (Philip S. Van Cise, J. E. Robinson, and Robert D. Charlton, all of Denver, Colo., on the brief), for appellant.

Ivor O. Wingren, Asst. U. S. Atty., of Denver, Colo. (Thomas J. Morrissey, U. S. Atty., of Denver, Colo., on the brief), for the United States.

Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

John Edwards, John M. McBride, William West, Ralph A. Clifton, Harold P. Kennedy, alias "Hap" Kennedy, alias C. J. Griffin, A. C. James, alias Art C. James, alias Art James, and Oliver Arnold were jointly indicted on September 29, 1936, charged with conspiracy to violate section 317,title 18 United States Code,18 U.S. C.A. § 317,section 194 of the Criminal Code, as amended, and acts amendatory thereto, during the period beginning with the 10th day of January, 1935, and thence continuously from said date to and including the 23d day of May, 1936, to unlawfully buy, receive, conceal, aid in buying, receiving, and concealing, and to have in their possession three Liberty bonds which had been abstracted from the United States mail.

Said Edwards, Kennedy, and Clifton having entered pleas of guilty later became witnesses for the government.Arnold (appellant), McBride, West, and James, having entered pleas of not guilty on trial a verdict of guilty was returned.Appellant alone appealed from the adverse judgment.

The indictment being challenged in the court below by demurrer and motion to quash, same were overruled and exceptions saved.It was there urged and renewed here that it was inconsistent in its allegations, impossible in its averments, and so ambiguous respecting the time element in its charge that it cannot support a conviction.

An indictment is sufficient to withstand a demurrer or motion to quash if it sets forth the offense with such sufficient certainty and particularity as to advise the accused of the specific charge lodged against him, and to enable him to prepare his defense, and to plead the judgment in bar to a subsequent prosecution for the same offense.Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861;Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314;Foster v. United States, 10 Cir., 76 F.2d 183;Weber v. United States, 10 Cir., 80 F.2d 687;Laska v. United States, 10 Cir., 82 F.2d 672, andHyde et al. v. United States, 225 U.S. 347, 32 S.Ct. 793, 797, 56 L.Ed. 1114, Ann.Cas.1914A, 614.

This indictment, though awkwardly drawn, appears to meet these requirements.When the different paragraphs contained in the indictment, including the seven overt acts, are construed together, one continuous conspiracy is attempted to be pleaded.No bill of particulars was sought by the appellant.

John Edwards, a defendant and confessed accomplice, testified that having stolen the bonds from the United States mails at Jefferson, Iowa, and bringing them to Denver, he had a conversation with West and Clifton in regard to the disposition of same, when Clifton said that he had responsible connections through whom they could do business, pointing out Kennedy, and knew a banker who would handle same, and Edwards and Kennedy having discussed the matter with him, Edwards later delivered the bonds to Kennedy who took them to the Denver National Bank, returning with a receipt therefor, and that on the following day Kennedy, going to the bank, returned with the money which they divided.

Clifton testified that having discussed the matter with John Edwards, and stating to him that he had a connection through whom the bonds could be sold, introduced Kennedy to Edwards as the person who could negotiate for the disposition of the stolen bonds, and that he was present when Edwards delivered the bonds to Kennedy, who took them to the Denver National Bank, returning with a receipt for them, and that on the following day Kennedy, going to the bank, returned with the money which they divided.

Kennedy testified that Clifton asked him if he knew where disposition could be made of about $50,000 in Liberty bonds, stating that the bonds were coming through West, and that he(Kennedy) knew James of whom he made inquiry about the sale of such bonds, who said they could be sold at the Denver National Bank, to be taken there to Arnold, and that a few days later, on March 21st or 22d, James took him to Arnold's apartment, where after arrival James told Arnold that Kennedy was the man who would bring the bonds to the bank, and Arnold inquired how many there would be and Kennedy replied in excess of $50,000, and Arnold asked what kind of bonds they were and Kennedy replied Liberty bonds that had been stolen in the middle west, and he had seen the letters of transmittal with which they were sent, and Arnold said he did not want to have anything to do with them if there were just a few, that they would take $10,000 in bonds at a time and further asked when they would be there with them, directing him to call in advance, and asked him how much they wanted for the bonds and Kennedy replied 60 cents, and Arnold asked if that could not be reduced some and Kennedy replied he did not know, and it was agreed that Kennedy would come into the bank with the bonds, and Arnold would introduce him to another man, the other man to take care of the transaction, and James said he did not want to get into trouble, Arnold replying there would not be any trouble, and if there was to head it off.

Arnold testified: "I received a telephone call one morning, supposedly from a Chevrolet dealer.I got the impression it was from the Capitol Chevrolet dealer, they had a party there that wanted to buy an automobile moving to Denver from St. Louis.Evidently I told him to send him right down.Pretty soon a party came in the bank and said, `I am here in response to a telephone call in regard to selling some bonds.'I in turn introduced him to Mr. Perkins, our assistant cashier, and he handled the transaction.I don't know anything else about it.I don't recognize Kennedy as the man in question.Don't know whether he is or not.On account of the way my desk was located in the bank I couldn't say how many transactions I would have a day.Some days many more than others, where people would come up to my desk and tell me they wanted to buy bonds or stocks, or securities, and if I was not busy I would spend a minute with them possibly, if Mr. Edwards or Mr. Perkins happened to be busy, until they were at leisure, and then turn them over to Mr. Perkins, or Mr. Edwards, or Mr. Alff, who sometimes handled those transactions.I didn't see Griffin after the incident I have related.If it was Kennedy, I saw Kennedy."

All the evidence in the record connecting Arnold as a party to the conspiracy came from accomplices.

Though the testimony of an accomplice should be subjected to close scrutiny and minute examination, and weighed with great caution, still a conviction may be had upon it without corroboration.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;Tingley v. United States, 10 Cir., 34 F.2d 1;Reger v. United States, 10 Cir., 46 F.2d 38;Hollis v. United States, 9 Cir., 246 F. 832;Graboyes v. United States, 3 Cir., 250 F. 793;Scott v. United States, 7 Cir., 283 F. 117;Henderson v. United States, 8 Cir., 20 F.2d 90, andNibbelink v. United States, 7 Cir., 73 F.2d 677.

Such evidence on the part of the government is sharply contradicted by other direct testimony and circumstances on which appellant relied, conflicting evidence, as a rule, not to be weighed on appeal.Brayton v. United States, 10 Cir., 74 F.2d 389, andLaska v. United States, supra.

Perkins, an assistant cashier of the bank, testified for the government that he took care of the sale of such bonds when William Edwards, its assistant cashier, was at lunch, on vacation, or not immediately available, and that "there is scarcely a day goes by, as a matter of fact, that somebody doesn't come in to transact some business at Edwards' desk while he is at lunch.In that case Mr. Arnold or Mr. Weckbaugh or any of the other officers call on me to wait on them" in the sale of bonds or anything else.

A year or more elapsed.No further stolen bonds passed through said bank, or through Arnold."Griffin" presented no further securities.Only these three bonds are involved.Appellant continued his duties as assistant vice president of the bank, no one accusing him of conspiracy to receive such bonds or with knowledge that they were stolen, until May 12, 1936, when the first accusation was made against Arnold, charging him with knowledge that said three bonds had been stolen, and with conspiracy to receive them with such knowledge.

Four witnesses, in addition to the defendant, referred to by the trial judge as "these respectable women and men," testified that Arnold was with them at two successive birthday dinners, March 21 and March 22, 1935, the first when the appellant was in the company of these witnesses from 5:30 p. m. "until about eleven"; the second when appellant remained from 6 o'clock until eight, leaving then and going with his then fiancée, Mrs. Lewis, now his wife, Mrs. Arnold, to St. Luke's Hospital to visit Mrs. Lewis' sister who was ill there, where his presence was accounted for until later in the night.Also the whereabouts of Arnold on the evenings of March 20th and of March 23d, until after 8 o'clock, was established by certain of these same witnesses.

The trial judge told the jury: "There is some important testimony here which is offered in the nature of an alibi.In other words, these respectable women and men have taken the stand to testify that Kennedy and James could not have had this interview about the time it is said to have occurred because of these evenings that Mr. Arnold spent with his relatives, and the...