Bell v. United States

• Decision Date: 30 December 1938
• Docket Number: No. 8659.,8659.
• Parties: BELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

100 F.2d 474 (1938)

BELL v. UNITED STATES.

No. 8659.

Circuit Court of Appeals, Fifth Circuit.

December 30, 1938.

Norman A. Dodge, of Fort Worth, Tex., and Preston Martin, of Weatherford, Tex., for appellant.

Clyde O. Eastus, U. S. Atty., of Fort Worth, Tex., and Joe H. Jones, Asst. U. S. Atty., of Dallas, Tex.

Before SIBLEY and HUTCHESON, Circuit Judges, and DEAVER, District Judge.

DEAVER, District Judge.

Appellant was charged in three counts with passing counterfeit bank notes.

The first count alleges that defendant passed a counterfeit twenty-dollar Federal Reserve note to E. F. Magee unlawfully, knowingly, wilfully and feloniously, with intent to defraud the United States and any person to whom the note might be passed, and describes the note by serial number and by setting out a copy of the note.

The second count is the same as the first except that it names Bill Riley Wheat as the person to whom the note was passed, gives a different serial number, and describes the note, except as to serial number, by reference to the description in the first count.

The third count is the same as the first except that it names J. A. Thompson as the person to whom the note was passed, gives the serial number, and describes the note by reference to the description in the first count, the serial number being the same as that in the first count.

It is clear from the record that the pleader intended to charge the passing of three different notes, each to a different person, the notes being identical, except as to serial number, and that, instead of placing in the first count the serial number intended, he by mistake wrote into that count the serial number which appears in the third count.

On the trial E. F. Magee, to whom it was alleged in the first count one of the notes was passed, took the stand as a witness and identified a note like those described except that it contained a serial number which did not appear anywhere in the indictment. He also testified that he received the note from the defendant on May 17, 1936, about 9 or 9:30 at night, in payment for 10 gallons of gasoline, giving the defendant approximately $18 in change, and at the same time took defendant's license tag number and wrote that number and the date on the wall near the cash register; that the car was a 1936 Plymouth coach which was bent in the back and which did not have the regular gas cap but a little old black fifteen cent gasoline cap, and which had a rear license number bolted on over another number; that he saw the defendant two days later in Vernon, Texas, and saw the same car in front of the court house in Vernon.

The note identified by the witness was offered in evidence. Defendant objected on the ground that the note was not the one described in the indictment and moved to strike out all the testimony of the witness. The court excluded the note and withdrew the evidence given by the witness.

Bill Wheat, the person to whom the note described in the second count was alleged to have been passed, identified the defendant and the car he was driving and testified that on the night of May 17th, between 8:30 and 9 o'clock, he sold to defendant 7 gallons of gasoline, received in payment the note described in the second count, and gave defendant $18.67 in change.

The note was offered in evidence. Defendant objected on the ground that the note was not set out in the second count and on the further ground that said count was insufficient to charge any offense, in that it failed to allege that defendant knew the note was counterfeit. The objection was overruled.

J. A. Thompson testified that on the night of May 17, 1936, between 10 and 11 o'clock, he sold to defendant 6 gallons of gasoline and received in payment the note described in the third count and gave defendant $19.16 in change.

The note was admitted in evidence. Defendant made the same objections as those made to the admission of the note offered in support of Count Two.

E. F. Magee, whose first testimony was withdrawn from the jury, was recalled and repeated his testimony as to selling gasoline to the defendant, receiving a twenty dollar note, taking the license number of the car and writing it on the wall. The note described by Magee was again tendered in evidence. The court, without waiting for objection, refused to admit the note. Then, counsel for defendant stated: "The record will show that we have got our objections renewed here at this time, with the same ruling and exceptions as before." The court made no reply. The number taken down by Magee was shown by other testimony in the case to be the number of defendant's car.

The notes described in counts two and three and the note identified by E. F. Magee were shown to be counterfeit and to be identical except as to serial number, and to have been made from the same plate.

Defendant denied passing the bills, testified he was not present and produced a number of alibi witnesses.

After defendant's evidence was in, the Government again offered in evidence the note identified by the witness Magee. The objections previously made to it were repeated. The court admitted the note, stating to the jury that the note was not admitted in support of count one but was admitted as bearing on the passage of the other notes and on the question of alibi.

A motion for a directed verdict was made, which was granted as to count one and denied as to the other two counts.

Counsel for the Government in his closing argument stated to the jury the following: "Gentlemen of the Jury, there is one piece of evidence in this case that neither you, nor the defendant, nor the defendant's alibi witness, can ever get around. The witness Magee testified that when he sold the gasoline and took one of these twenty-dollar counterfeit bills, that the witness took down the license number of the automobile that he put the gasoline into. You cannot convict the defendant on this testimony as count one is out but it is admissible as to the defendant's alibi denying that he was in town at about the time the other 2 $20.00 bills were passed."

Defendant objected to the argument on the ground that there was no evidence that Magee took down the license number, that evidence having been excluded.

The court then stated: "Gentlemen of the Jury, I instruct you that this argument may be considered by you in corroboration of the offenses charged in Counts Two and Three of the Indictment, and that the same is appropriate as to those Counts, and when I give you my general charge I am going to instruct you to acquit the defendant on Count One of the indictment, and, therefore, you cannot convict the defendant on that Count relative to which the evidence now being argued and objected to was excluded."

Whereupon, defendant's counsel renewed his objection to the argument.

The jury returned a verdict of guilty on the Second and Third Counts and not guilty on the first count.

A motion in arrest of judgment was made on the ground that each of the counts on which defendant was convicted was fatally defective in that it failed to allege that the defendant knew the note therein described was false, forged or counterfeited. The motion was overruled.

The sentence was ten years. Defendant appealed.

In the assignments of error Appellant complains that the court erred:

1. In permitting the District Attorney in his argument to state that the witness Magee had identified the defendant as the person who passed a counterfeit note upon him and had taken down the license number of the car.

2. In not directing a verdict of not guilty on the second and third counts.

3. In permitting the witness Magee to testify as to the transaction set out in Count One.

4. In admitting testimony that defendant had been accused of other crimes, towit, having in his possession many months before other counterfeit bills and giving them to his wife, who passed them, and stealing an automobile.

5. In denying the motion in arrest of judgment.

6. In...