Barrett v. United States
| Decision Date | 11 May 1929 |
| Docket Number | No. 7751.,7751. |
| Citation | 33 F.2d 115 |
| Parties | BARRETT v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James E. Carroll, of St. Louis, Mo., for plaintiff in error.
C. J. Stattler, Asst. U. S. Atty., of St. Louis, Mo. (Louis H. Breuer, U. S. Atty., of Rolla, Mo., on the brief), for the United States.
Before LEWIS, Circuit Judge, and WOODROUGH and McDERMOTT, District Judges.
This case grows out of the failure of the Federal Home Building Corporation, the plan and activities of which are described in Beck v. United States (C. C. A. No. 7993) 33 F.(2d) 107, this day decided, to which reference is made for a review of the facts.
The defendants Barrett and Beck were tried under the same indictment, and that part of the Beck opinion referring to the indictment is adopted in this case.
Barrett was convicted at the first trial; the jury disagreeing as to Beck. Moreover, the conspiracy count (10) was present in the indictment during the Barrett trial, although dismissed after the conclusion of the evidence but before submission to the jury. The claims of errors on the trial must therefore be separately treated.
1. The Books of Account. Reference is made to the Beck opinion as to the admissibility of these books. There was even less identification at this trial of the books of account, for Lister, the bookkeeper who made and identified a few of the entries, was not called as a witness in the Barrett trial, as he was in the Beck trial; nor was his absence accounted for, save that the district attorney's office overlooked subpœnaing him until too late to find him. If the books are necessary evidence, they must be identified as required by the case of Phillips v. U. S. (C. C. A.) 201 F. 259. The objection of Barrett that the corporate books are not binding on him because he is neither an officer nor stockholder of the company is not sound. The government does not offer the books as binding on any one; the government seeks to show how much money came in to the corporation, and where it went, a circumstance bearing on fraudulent intent. If the books, properly identified, assist in proving that fact, they are admissible whether Barrett knew of the books or not. To make the fact of receipts and disbursements material, the government, of course, must show that Barrett knew, at least in general, how the money was being spent. That knowledge is clear as to Beck, for he signed the checks; and doubtless could be found as to Barrett, at least after he became general manager.
2. The Letters. The fact that Barrett's name is signed to the letters does not prove he signed them. This evidence is necessary, either by direct proof, admission, or comparison of signatures. Brady v. U. S. (C. C. A.) 24 F.(2d) 399.
3. The Sufficiency of the Evidence. Barrett was first a salesman of the company, then sales manager, and then general manager. He shared in the commissions on the sale of contracts, but was not a stockholder in the corporation, and hence not in position to share in the profits of the corporation. He, like Beck, apparently overdrew his account, and the corporation was engaged in building him a house. He personally authorized the salesmen to make certain representations. It must be remembered that, as this case went to the jury, the case was simple: Had Barrett devised a scheme to obtain money by false pretenses or promises? Did he, personally or through another duly authorized, make false pretenses or promises? Did he, personally or through another duly authorized, use the mails in furtherance of such scheme? If this simple charge is kept in mind by counsel, the question he suggests as to Barrett not being a stockholder, and many others, will disappear. Otherwise, the comment made in the Beck Case applies.
4. The Scope of the Evidence. As the evidence was going in, the trial court was confronted with a count alleging a conspiracy among six men, and a joint charge of misuse of the mails as to the same six. The court's rulings on the evidence were made in the light of that situation. A great deal of evidence was...
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