Asgill v. United States, 3292.

• Decision Date: 01 August 1932
• Docket Number: No. 3292.,3292.
• Citation: 60 F.2d 776
• Parties: ASGILL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

60 F.2d 776 (1932)

ASGILL v. UNITED STATES.

No. 3292.

Circuit Court of Appeals, Fourth Circuit.

August 1, 1932.

M. J. Fulton, of Richmond, Va. (Holmes Hall, of Richmond, Va., on the brief), for appellant.

C. E. Gentry, Sp. Asst. U. S. Atty., of Charlottesville, Va. (Paul W. Kear, U. S. Atty., of Norfolk, Va. on the brief), for the United States.

Before PARKER and NORTHCOTT, Circuit Judges, and WATKINS, District Judge.

WATKINS, District Judge.

This is an appeal pursued in forma pauperis. The transcript of record and brief of appellant's counsel are typewritten. Part of the testimony is in single space and other portions in double space, and the number of erasures and interlineations appearing in the transcript all together contribute to considerable difficulty in its consideration. We call attention to these facts for the purpose of illustrating the lack of care with which records of this kind are frequently presented and for the purpose of emphasizing the propriety of having the court furnished with neat and accurate records.

The case was tried in the District Court for the Eastern District of Virginia, at Richmond, beginning July 7, and being concluded on July 11, 1931. The indictment in appropriate words in a single count charged Sarah Asgill, hereinafter referred to as the defendant, with having committed the crime of perjury by giving certain false testimony in a civil case tried on October 3, 1928, in the United States District Court for the Eastern District of Virginia, at Richmond, the swearing of the witness, the facts sworn to and charged in the indictment to have been material, false and known by the defendant to be false, being elaborately set out. After her conviction and sentence, the defendant brought this appeal upon numerous exceptions which need not be here set out in detail. They involve substantially but five issues: (1) Whether the demurrer to the indictment should have been sustained; (2) the plea of double jeopardy; (3) whether defendant's motion for a directed verdict should have been sustained because of insufficiency of the evidence; (4) whether the trial judge erred in admitting certain evidence; (5) whether the trial judge erred in excluding certain other evidence sought to be produced and used in cross-examination.

1. While the demurrer to the indictment purports to set out four objections, these need not be set out in detail. The sufficiency of the indictment is challenged because of indefiniteness and uncertainty and because of its failure to inform the demurrant of the facts, circumstances, and ingredients of the offense sought to be charged. This is completely answered by what has been said above. It is also claimed that the indictment is defective because of misjoinder of parties and of separate, distinct, and unrelated offenses. Counsel did not argue the exceptions to overruling the demurrer, and we are at a loss to understand how the challenge to the indictment was seriously presented. The defendant alone was included in the indictment, and there was but one charge of perjury in a single particular. These exceptions are overruled.

2. The claim of double jeopardy is based upon the fact that in another case heard at the same term and in the same court, the defendant was tried and convicted of the crime of conspiracy to defraud the United States. Asgill et al. v. U. S., 60 F.(2d) 780. In that case the false swearing, for which defendant was convicted in the instant case, was set out as one of the overt acts committed in carrying out the purposes of the conspiracy. It has been uniformly held that the liability for conspiracy is not taken away by its success; that is to say, by the accomplishment of the substantive offense at which the conspiracy aims. In the conspiracy case the purpose was alleged to be that of defrauding the United States. The false swearing was only the means of accomplishing that purpose. The crime of conspiracy is an independent crime condemned by the statute for the primary purpose of discouraging organized and concerted efforts by two or more people to violate the law. The case of Heike v. United States, 227 U. S. 131, at page 144, 33 S. Ct. 226, 57 L. Ed. 450, at page 455, Ann. Cas. 1914C, 128, is conclusive of this question. See, also, Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136; Steigleder v. United States (C. C. A.) 25 F.(2d) 959; Hostetter v. United States (C. C. A.) 16 F.(2d) 921.

3. The exceptions to the court's overruling the motion for a directed verdict are without merit and must also be overruled. The government produced a number of witnesses who testified to the effect that defendant's testimony was false as alleged in the indictment, the testimony of these witnesses relating to matters peculiarly within the knowledge of appellant, and, if true, as indicated by the verdict of the jury, showing all the facts necessary to establish the charge. It was shown that the defendant was properly sworn in the civil case referred to in the indictment, and every material element necessary to establish the crime was supported by testimony.

4. While the exceptions set forth numerous grounds upon which it is alleged that the court erred in admitting evidence, none of these grounds are meritorious. Among other things, it is alleged that the court erred in admitting evidence to the jury before the corpus delicti had been proved, and that evidence was introduced as to acts both before and after the alleged offense and for acts not alleged in the indictment. The exceptions are rather general, but, waiving any objection thereto for that reason, it appears from the record that the corpus delicti was properly proved and the testimony was in proper order; that all the facts testified to were so related to the main charge as to make them material. These exceptions are overruled.

5. The remaining exceptions relate to the exclusion of a certain letter written, or purporting to have been written, by Alice White Allen, a witness for the government, and the refusal of the court to require the production of other letters written or sponsored by her in connection with her claim for insurance, at the request of defendant's counsel for the purpose of cross-examination. The consideration of this question requires a review of certain facts disclosed by the testimony. The indictment charges the defendant with having given certain false testimony in the trial of a suit upon a war risk insurance policy, brought by Alice White Allen, as the common-law wife of a deceased veteran, against the United States. It appeared from the testimony both in that case and the instant case that one James Allen entered the service of the United States in the World War, applied for and received from the government an insurance policy in the sum of $10,000, payable to the said Alice White Allen, as his common-law wife. After his death, she presented to the Veterans' Bureau her claim for the payment of this policy. She was then living in Virginia. In reply, the Bureau called her attention to...