Berry v. United States, 17751.

• Decision Date: 21 December 1959
• Docket Number: No. 17751.,17751.
• Citation: 271 F.2d 775
• Parties: Kenneth John BERRY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

271 F.2d 775 (1959)

Kenneth John BERRY, Appellant, v. UNITED STATES of America, Appellee.

No. 17751.

United States Court of Appeals Fifth Circuit.

November 23, 1959.

Rehearing Denied December 21, 1959.

Leonard Moriber, Miami, Fla., for appellant.

Lavinia L. Redd, Asst. U. S. Atty., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee.

Before HUTCHESON, TUTTLE and WISDOM, Circuit Judges.

HUTCHESON, Circuit Judge.

Appealing from his conviction and sentence on a one count indictment charging him with causing the transportation in interstate commerce of a falsely made and forged security with unlawful and fraudulent intent, knowing the same to have been falsely made and forged, defendant is here urging two specifications of error.

One of these is that a judgment of acquittal should have been, and should be here, directed. The other, in the alternative, is that the judgment should be reversed and the cause remanded because of the admission of evidence, tending to prove the commission of other offenses than the one charged, and the failure to instruct the jury as to the limited purpose and effect of such evidence.

As to the first ground of error, with respect to which the appellant confidently relies on the Hubsch case from this court, Hubsch v. United States, 256 F.2d 820, appellee points out that in that case the instrument was a check on a bank and the defendant, admitting that he had made and signed the instrument, claimed only that in executing it he had not committed forgery because he had signed his own name, though an alias, while here the instrument was a travelers check and the defendant, disputing the testimony of the government's witnesses, denied that he had signed it or had had anything to do with it.

As to the claimed procedural grounds of error, appellee points out that the evidence complained of was in itself admissible as tending to prove knowledge or intent. Ehrlich v. United States, 5 Cir., 238 F.2d 481; Anthony v. United States, 9 Cir., 256 F.2d 50; that the defendant did not object to its admission or request or suggest any limiting instructions; and that it has been held that failure to give such limited instructions is not error. Fowler v. United States, 5 Cir., 242 F.2d 860; Wright v. United States, 4 Cir., 192 F.2d 595.

We find ourselves in complete agreement with these views. The Hubsch case was not intended to, it did not, go beyond the "true name" doctrine. Marteney v. United States, 10 Cir., 216 F.2d 761; Greathouse v. United States, 4 Cir., 170 F.2d 512; cf. Edge v. United States, 5 Cir., 270...