Astwood v. United States

• Decision Date: 20 June 1924
• Docket Number: No. 6410.,6410.
• Citation: 1 F.2d 639
• Parties: ASTWOOD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

1 F.2d 639 (1924)

ASTWOOD v. UNITED STATES.

No. 6410.

Circuit Court of Appeals, Eighth Circuit.

June 20, 1924.

James M. Rader and Frank D. Rader, both of Kansas City, Mo., for plaintiff in error.

Charles C. Madison, U. S. Atty., and W. H. Hallett, Special Asst. U. S. Atty., both of Kansas City, Mo.

Before STONE and KENYON, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

The plaintiff in error, Charles A. Astwood, and one William C. Mallory, were charged by indictment containing two counts with the violation of section 135 of the Criminal Code, 35 Stat. 1113 (Comp. St. § 10305).

The first count charged that Mallory, on or about the 12th day of April, 1922, "unlawfully, knowingly, willfully, fraudulently, and corruptly" endeavored "to influence, obstruct, and impede the due administration of justice in the United States District Court for the Western Division of the Western District of Missouri, by unlawfully and corruptly attempting to induce and entice one Woodie Whittington to fail and neglect to appear and answer to a charge then and there pending against her, * * * by falsely and corruptly representing and stating and causing to be represented and stated to the said Woodie Whittington that the said case had been fixed by the payment of the sum of one hundred dollars ($100.00)," and "that all papers in the case had been destroyed, so it would be unnecessary for her, the said Woodie Whittington, to appear in said court to answer said charge."

It further charged that Astwood "did * * * unlawfully, willfully, knowingly, fraudulently, and corruptly counsel, aid and abet the said William C. Mallory to commit and in committing, the aforesaid offense in the manner and form as aforesaid."

The second court of the indictment charged the said William C. Mallory with a completion of the offense, which it was charged he attempted to commit by the first count of the indictment, and it charged that the defendant, Astwood, aided and abetted the said William C. Mallory in the commission thereof.

Astwood filed a demurrer to both counts of the indictment. The same was overruled. He then filed a plea in abatement to both counts of the indictment, which was likewise overruled. Mallory pleaded guilty. Astwood pleaded not guilty, was tried, found guilty, and sentenced on both counts of the indictment. From the judgment and sentence of conviction, he has sued out a writ of error to this court.

The facts are as follows: One Woodie Whittington had been bound over to await the action of the United States grand jury by a United States commissioner on the charge of violating the Harrison Narcotic Act, and had given bond before the commissioner for her appearance at the April, 1922, term of the United States District Court, Western Division, Western District of Missouri. Mallory executed this bond as surety. Mallory also executed, as surety, bonds for Albert Marshall, Sidney Turner, and two others, conditioned for their appearance at the April, 1922, term of the United States District Court, Western Division, Western District of Missouri. Some time in March or April, 1922, Astwood falsely represented to Mallory that he was in a position to have the cases of the defendants for whom Mallory had signed as bondsman dismissed upon the payment of certain sums of money. Thereafter Astwood executed a writing in which he stated he had succeeded in having certain of these cases dismissed, among them being the cases against Woodie Whittington, Albert Marshall, and Sidney Turner, and authorized Mallory to collect from each of the defendants named the sum of $100 and to assure them that the cases pending against them had been dismissed. Mallory, in pursuance of his agreement and understanding with Astwood, went to Woodie Whittington and her husband on April 13, 1922, and told them the case pending against Woodie Whittington had been dismissed, that the indictment had been destroyed, and that it would not be necessary for her to appear in court on April 24, 1922, when the case against her was set for trial. He collected from her the sum of $50, and gave her a written receipt, in which it was stated the money was received in settlement of the case of United States against Woodie Whittington.

The written statement above referred to, signed by Astwood, was presented to the grand jury that returned the indictment in the instant case, and then returned to the files in the United States district attorney's office. The same was taken from the files in that office on or about the night of November 15, 1922. Diligent search was made in the office and among the files of the United States district attorney, but the same could not be discovered. After laying the foundation for secondary evidence, the government offered evidence to show the contents of the statement and the fact that Astwood signed the statement and delivered it to Mallory.

It was also shown that Astwood met Albert Marshall, one of the defendants mentioned in the paper, in the Federal Building, in the presence of Mallory and one Dinnery, and there collected from him the sum of $100, $50 of which was paid to Astwood and $50 to Mallory, in consideration of the promise of Astwood that he would have the case pending against Marshall dismissed. It was also shown that one Turner met Astwood and Mallory at Mallory's home, that Astwood assured Turner he had already fixed the case against Turner, and thereupon Turner paid Astwood and Mallory $100.

The case against Woodie Whittington was called for trial on April 24, 1922. She failed to appear, because Mallory had told her that the case against her was dismissed and the papers destroyed. Her appearance bond was forfeited and a capias issued.

There are 39 assignments of error. Many of them are not argued in the brief, are without merit, and will not be discussed.

The third assignment of error is predicated upon the overruling of the plea in abatement. Counsel for Astwood contend that, since Mallory was a surety for Woodie Whittington on her bond, Whittington, the accused, was, in legal contemplation, in the custody of Mallory, the surety, from the moment the bond of recognizance was executed until she was discharged or recommitted, and therefore the facts set out in the indictment could not constitute a violation of section 135 of the Penal Code. While it is the theory of the law that the accused, who gives bail for his appearance, is committed to the custody of the sureties on his bond as to jailers of his own choosing, and that he is so far placed in their power that they may at any time arrest him upon the recognizance and surrender him to the court, this does not give a surety the right to induce the accused not to voluntarily appear before the court in accordance with the condition of the bond. If Mallory corruptly persuaded Woodie Whittington not to appear in court in accordance with the condition of her recognizance, he impeded the due administration of justice just as effectually as if he had been a stranger to the bond.

The fourth assignment of error is predicated upon the overruling of the demurrer to the indictment. Counsel for Astwood charge that the indictment was defective in two particulars: One, that it did not allege Astwood knew a case was pending against Woodie Whittington; the other, that it did not allege that any of the acts on the part of Astwood were done with an intent to impede justice.

The first count of the indictment alleges that Mallory knowingly endeavored to influence, obstruct, and impede the due administration of justice by doing certain things which are specifically described and set out, and alleges that Astwood knowingly did aid and abet Mallory to commit and in committing the offense charged against Mallory. The second count of the indictment is substantially the same, except that it charged the completed offense against Mallory. This was a sufficient...