August v. United States

• Decision Date: 27 March 1918
• Docket Number: 5216.
• Citation: 257 F. 388
• Parties: AUGUST v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

257 F. 388

AUGUST v. UNITED STATES.

No. 5216.

United States Court of Appeals, Eighth Circuit.

March 27, 1918

John G Parkinson, of St. Joseph, Mo. (Benjamin Phillip and James W Mytton, both of St. Joseph, Mo., on the brief), for plaintiff in error.

E. B Silvers, Asst. U.S. Atty., of Kansas City, Mo. (Francis M Wilson, U.S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

CARLAND Circuit Judge.

The plaintiff in error, hereinafter called defendant, was jointly indicted with one Kalis for violating section 39 of the federal Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 (Comp. St. Sec. 10203)). The indictment was in two counts. The first count charged, among other things, that the defendant did unlawfully, willfully, knowingly, corruptly, and feloniously offer the sum and amount of $500, the exact description of which was unknown to the grand jury, to one Walter P. Fulkerson, a member and chairman of the local board known and designated as the 'Local Board for Division No. 3, City of St. Joseph, State of Missouri,' with the corrupt intent and purpose to influence the decision and action of Fulkerson as chairman and member of said board in relation to the making of a physical examination of said Kalis and in passing upon and determining his physical qualifications for the military service of the United States. The second count was in the same language, except the person to whom the $500 was alleged to have been offered was one Walter L. Mack, a member and clerk of the above board. A trial on this indictment resulted in the acquittal of Kalis and the conviction of the defendant. From a judgment imposing a fine and imprisonment in the penitentiary, the case is here for review.

To sustain the case of the prosecution, two separate conversations had by the defendant with Fulkerson and Mack were given in evidence. The conversation with the former, as testified to by him, was as follows:

'Well, Mr. August came up about-- I think about 6 o'clock in the evening, and I had just gotten home from the Exemption Board, and he drove up and got out of his car and came up the steps. I turned around. I saw him getting out of his car, and I turned around to meet him; so I walked down the steps and he came up the steps. I live on a terrace probably 10 or 12 steps high; and we met and probably shook hands. I don't remember whether we did that or not; but Mr. August just said-- he says, 'W.P.,' he says, 'How can we get this boy off?' And I had in mind his son. I said, 'What boy do you refer to? or 'What boy are you talking about?' something like that, and he said, 'Why, Ike Kalis.' He says, 'You know Ike.' And about that time Ike hollered at me. Ike was either in the car, or getting out of the car, just down below. Ike hollered at me, and then I recognized him, and A.J. told me it was Joe's brother, and I said, 'Well, I remember him now.' And I told him I didn't know of any way to get Ike off. I said I didn't know of any way to get Ike off, if he is eligible to go; and he said, 'Well, he saw'-- he says, 'I just can't afford to have this boy go, it'll ruin his business.' I thing he mentioned, 'It will kill his old father-- going to ruin his business,' and he says, 'I can't-- just can't afford to have this boy go; I must get this boy off some way'-- something like that.'

Counsel for the United States then asked the following questions and the witness replied as here stated:

'Q. Yes; well, for the purpose of refreshing your recollection, I will get you to state on that occasion if Mr. August didn't say to you, 'I would rather give $500 out of my own pocket right this minute than to lose this boy.' A. Well, substantially that.

'Q. Yes; you know whether or not he did say that, Mr. Fulkerson-- 'I would rather give $500 out of my pocket right this minute than to lose that boy?' A. I think he said, 'I would rather lose $500,' or 'I would rather give $500, than to see this boy go. I would rather go myself' Of course, it has been a good while ago for me to say he said, 'Right this minute;' I don't know that he said that. The idea was that he didn't want this boy to go.

'Q. Your recollection would be probably better in September, when the grand jury met, than after the passage of this much time? A. Yes.

'Q. Now, Mr. Fulkerson, I desire to put this question before you again-- if he didn't say to you in that conversation, 'I would rather give $500 out of my pocket right this minute than to lose that boy'-- if he didn't say that to you as near as you can recollect? A. Well, he said something like that; yes. He said he would rather go himself. Well, I made fun of him, and he said, 'Well, I would rather go myself-- I would rather than $500 not to see this boy have to go.' ' I would rather than anything,' he says, 'I can't afford to have this boy go;' and I just turned it off in a joke with him, and I said, 'Why, A.J., you know you're getting too old to go, and no use talking that way,' and we discussed it in this way.'

On cross-examination the witness testified:

'Oh, he just said, 'I can't have this boy go.' He says, 'I would rather go myself-- I would rather give $500 out of my pocket than to see this boy go.' I said, as I have stated, 'It is out of the question about you going to war; you can't go to war."

Counsel for defendant then asked the following questions on cross-examination and they were ruled upon by the trial court as follows:

'Mr. Parkinson: You never heard Mr. August at any time say anything out at your home that indicated that he intended to corrupt you, or anything of that kind; you never heard him say anything that indicated that?

'Senator Wilson: We object to that, for that is the question to be determined by this jury. That is what this lawsuit is about; what he meant by it.

'The Court: Sustained.

'Mr. Parkinson: Well, we except to the ruling of the court.

'The Court: He may state what was said, but he can't give his opinion about it.

'Q. Well, Mr. Fulkerson, did you hear Mr. August say anything the night he was out at your home that would indicate to you that he wanted to give you $500 to do anything for or against-- for or against this man's being taken into the army or being left out?

'Senator Wilson: We object to that.

'The Court: Objection sustained.

'Mr. Parkinson: We again except. We offer to prove by this witness that nothing was said there that indicated to him that Mr. August intended to bribe him, or offered to bribe him, or offered him in any sense $500, or anything of that kind, in the sense of offering it to him, in the sense of its being offered to him to influence his action, or anything of that kind.

'The Court: The offer is rejected, upon the ground that the witness has stated what was said, and it is for the jury to determine what the purpose was, and the witness is not entitled to state his conception of it.

'Mr. Parkinson: Q. Mr. Fulkerson, did Mr. August offer you $500-- where is that indictment-- did Mr. August offer you $500, or any other sum at your home that night-- offer to you--

'Senator Wilson: That is the same question asked over again.

'The Court: Well, the court will permit whatever is proper about that. If you mean the tender, the physical tender, of money, if you mean by that an interpretation of what those words meant, the court has ruled on that. If you mean to ask him whether he had $500 there which he offered him physically, of course, you may answer that. He has already answered that, and said he did not.

'Mr. Parkinson: Well, this man has been charged on a certain date with-- Mr. August has been charged with offering him $500, and now I want to ask him whether in the language of the indictment this is the man-- whether on that night, or at any other time, he offered him $500, or any other sum.

'The Court: If you want to put that on that ground, the ground of physical offer of money; that is, that the money was there which he offered-- 'Mr. Parkinson (interrupting): No.

'The Court: If that is not what you mean, then the objection is sustained.

'Mr. Parkinson: We except.'

The conversation had with Mack as related by him was as follows:

'So we took a drink of root beer, I believe, if I remember correctly, and turned around and came outside of the store and Mr. August says, 'Mack, I want you to do something for me;' and I said, 'What is it, A.J.?' 'This man Ike Kalis comes up before your board for examination; I don't want him to go to war.' I said, 'Mr. August, if he passes the physical examination, he will have to go to war, so far as my-- so far as I am concerned. I couldn't do any different if he was a brother of mine.' He said, 'I can't afford to lose that man; he's a mighty valuable man. I wouldn't have him go to war of $500 out of my own pocket.' I said, 'If he passes the examination, Mr. August, he will have to go the same as any other boy.' He says, 'How about your doctor?' I says, 'I don't believe you could touch him with a million. You would insult him if you would say anything to him.' He says, 'How about Dr. Weary?' And I repeated what I have said. He said, 'How about Dr. Ladd?' I said, 'If he passes the examination before Dr. Weary, he will never get to Dr. Ladd. If he fails to pass Dr. Weary, he will be re-examined in the...