Barrett v. United States

• Decision Date: 17 March 1936
• Docket Number: No. 5718.,5718.
• Citation: 82 F.2d 528
• Parties: BARRETT v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

82 F.2d 528 (1936)

BARRETT v. UNITED STATES.

No. 5718.

Circuit Court of Appeals, Seventh Circuit.

March 17, 1936.

Fred C. Gause and W. H. Thompson, both of Indianapolis, Ind., for appellant.

Val Nolan, U. S. Atty., and B. Howard Caughran and Paul A. Pfister, Asst. U. S. Attys., all of Indianapolis, Ind.

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

The appellant, George W. Barrett, was charged by a grand jury indictment with having murdered Nelson B. Klein, a special agent of the Division of Investigation of the Department of Justice, on August 16, 1935, at College Corner, Union County, Indiana. Appellant interposed a plea of not guilty. The jury found him guilty of murder in the first degree without qualification of the verdict. The judgment followed the verdict and he was ordered executed in the Marion County jail at Indianapolis on March 24, 1936.

As defined by section 273 of the Criminal Code, murder in the first degree is the unlawful killing of a human being with premeditated malice; murder in the second degree is the unlawful killing of a human being with malice but without premeditation. 18 U.S.C.A. § 452. According to section 274, manslaughter is the unlawful killing of a human being without malice. 18 U.S.C.A. § 453.

The statute under which appellant was indicted and convicted, 18 U.S.C.A. § 253, is as follows:

"Whoever shall kill, as defined in sections 452 and 453 of this title, any * * * special agent of the Division of Investigation of the Department of Justice * * * while engaged in the performance of his official duties, or on account of the performance of his official duties, shall be punished as provided under section 454 of this title."

Title 18, § 454, just referred to, is as follows:

"Every person guilty of murder in the first degree shall suffer death. Every person guilty of murder in the second degree shall be imprisoned not less than ten years and may be imprisoned for life. Every person guilty of voluntary manslaughter shall be imprisoned not more than ten years. Every person guilty of involuntary manslaughter shall be imprisoned not more than three years, or fined not exceeding $1,000, or both."

It is provided in section 330 of the Criminal Code, 18 U.S.C.A. § 567, that in all cases where the accused is found guilty of the crime of murder in the first degree, the jury may qualify the verdict by adding thereto "without capital punishment;" and whenever the jury shall return a verdict thus qualified the person convicted shall be sentenced to prison for life.

We shall set forth a short summary of the evidence, and in doing so we follow quite closely the statement as found in appellant's brief:

George W. Barrett, a Kentuckian, fifty-five years old, with several aliases, began dealing in stolen automobiles in 1931. His method was to buy an automobile, obtain title papers for it, steal an automobile of similar description, change its motor numbers to correspond with those on the purchased car, obtain duplicate title papers, and then sell the stolen car to some dealer. In 1935 he was living in Hamilton, Ohio, where a brother of his (then in jail) had a home, and he occasionally visited another brother of his in College Corner, Indiana, where he sometimes received mail under the alias of George W. Ball. In 1934, under that alias, Barrett rented an automobile in San Diego, California, drove it to Kentucky, changed its motor numbers, and sold it to one Bierlein. In 1935 appellant rented an automobile in St. Louis, Missouri, drove it to Ohio, changed its motor numbers to correspond with those on a new car he purchased through the Central Motor Company of Hamilton, Ohio, and sold it to the same car dealer who on August 2, 1935, sold it to one Thomas Farmer. Appellant knew that these were federal offenses. The manager of the Central Motor Company happened to learn that the car sold to Farmer bore the same motor number as the new car which it had sold to Barrett later that day, and the manager gave that information to Donald McGovern, a special agent of the Division of Investigation of the Department of Justice.

For about four years appellant had been suspected by the Division of Investigation of the United States Department of Justice as a violator of the National Motor Vehicle Act. After the sale of the car to Farmer on August 2, 1935, special agents McGovern and Klein, from the Cincinnati office of the Division, were ordered to investigate appellant's activities in stolen cars. After investigation, they reported to their superior officer on August 15, 1935, that Barrett's brother at College Corner received mail under the name of George W. Ball; that they had traced several cars which had been stolen by Barrett, to Hamilton, Ohio, and that one of the cars bore a number identical with that on another car handled by Barrett; that they had inspected two of the cars stolen by Barrett and found that the original motor numbers had been filed off and new numbers stamped on. On August 16, 1935, word was received at the Cincinnati office that Barrett was then in the office of the Central Motor Company at Hamilton, Ohio. By that time one of the cars was identified as having been stolen from San Diego, California, for which a warrant was out against Barrett from the police of that city, and the other as having been stolen from St. Louis, Missouri. Thereupon, Klein requested the police at Hamilton, Ohio, to arrest Barrett. They failed to find him, apparently because he had been warned by a loiterer at the police station who was friendly to him. Barrett had been expecting arrest by federal officers.

On receipt of this information from his friend, appellant left Hamilton with no intention of returning. He drove to College Corner to see his brother and on the way there he changed license plates on the car he was driving from Indiana to Ohio plates. At College Corner he went to his brother's house, where he secured a loaded gun which he wrapped in a cloth, and started back to his car which was parked more than a block from his brother's home. Upon learning that the Hamilton police had not arrested Barrett, agents McGovern and Klein were instructed by their superior officer to go to Hamilton and also to College Corner and apprehend Barrett. They had no warrant, and applied for none, for at that time the office of the District Attorney was closed. They wore no distinctive uniforms, and they drove a Buick automobile without distinctive markings in the way of official insignia. Not locating Barrett at Hamilton, they proceeded to College Corner, where the dividing line between Ohio and Indiana passes through. Here the agents parked near the residence of Barrett's brother, saw a man having the description of Barrett, looked at the motor number of his car during his absence and ascertained that it was the motor number of the car Barrett had bought from the Central Motor Company on August 2, 1935. Klein telephoned the sheriff's office at Hamilton for aid in making the arrest of Barrett, and he and McGovern then parked near Barrett's car and waited for his return.

In a short time Barrett came walking back toward his car with a package in his hand, which later proved to be the gun wrapped in a towel. As he started to unlock the car door, McGovern and Klein started their car, turned and drove to Barrett's car thinking he was attempting to escape them. Barrett turned from his car and started rapidly up a nearby alley toward a tree. Klein jumped from the government car as they passed Barrett's parked car and called to Barrett, "Stop, we are federal officers!" Barrett turned, unwrapped his gun, and, before McGovern could get out of his car or see what was happening, shots were heard by McGovern and residents in the city. McGovern got to the scene of action and fired at Barrett. Barrett's shots had killed Klein; and shots from either McGovern or Klein had pierced both of Barrett's legs and he had fallen. McGovern, however, testified positively that he was the one who had shot Barrett, and we think the evidence supports McGovern's statement in this respect, beyond all reasonable doubt.

At the trial of this cause appellant was represented by his own attorney from Hamilton, Ohio. After the verdict, that attorney filed a motion for a new trial but declined to represent appellant further and was not present at the court's ruling on the motion. Thereupon, the district judge appointed two eminent members of the bar of that district to represent the appellant. They were present when the motion for a new trial was overruled, and, at appellant's request, they prosecuted this appeal.

The following facts were either admitted or established beyond controversy and are not now disputed: (1) Appellant killed Klein on August 16, 1935, at College Corner, Indiana; (2) at that time Klein was a duly appointed and acting special agent of the Division of Investigation of the Department of Justice; (3) appellant was guilty of violating the National Motor Vehicle Theft Act (18 U.S.C.A. § 408); (4) Klein, together with McGovern, also a special agent of the Division of Investigation of the Department of Justice, had gone from the Cincinnati office to Hamilton and thence to College Corner, Indiana, for the purpose of apprehending appellant, without any warrant for his arrest, but with reasonable ground to believe that appellant had been guilty of violating the National Motor Vehicle Theft Act; (5) on the same day, for some hours before the killing, federal officers were seeking to apprehend appellant for a violation of the National Motor Vehicle Theft Act in transporting stolen vehicles from one state to another and selling them, and appellant was so advised; (6) at the time of Klein's death appellant intended to leave College Corner, but the reason for his departure was disputed. The principal facts about which there was a dispute in the trial were: (1) Whether appellant knew or...