Bolland v. United States

• Decision Date: 06 July 1916
• Docket Number: 1448.
• Citation: 238 F. 529
• Parties: BOLLAND v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

238 F. 529

BOLLAND v. UNITED STATES.

No. 1448.

United States Court of Appeals, Fourth Circuit.

July 6, 1916

Rehearing Denied November 28, 1916.

Geo. F von Kolnitz, Jr., of Charleston, S.C., for plaintiff in error.

Francis H. Weston, U.S. Atty., of Columbia, S.C. (J. Waties Waring Asst. U.S. atty., of Charleston, S.C., on the brief), for the United States.

Before PRITCHARD and KNAPP, Circuit Judges, and JOHNSON, District judge.

PRITCHARD Circuit Judge.

This is a criminal action instituted in the District Court of the United States for the Eastern District of South Carolina. The defendant was tried for a violation of section 35 of the federal Penal Code of 1910. The portion that relates to this case is in the following language:

' * * * And whoever shall knowingly purchase or receive in pledge for any obligation or indebtedness from any soldier officer, sailor, or other person called into or employed in the military or naval service, any arms, equipments, ammunition, clothes, military stores, or other public property, whether furnished to the soldier, sailor, officer, or person, under a clothing allowance or otherwise, such soldier, sailor, officer, or other person, not having the lawful right to pledge or sell the same, shall be fined not more than five hundred dollars, and imprisoned for not more than two years.'

The indictment charged the defendant with knowingly receiving in pledge from a soldier certain property of the United States, to wit, a certain Colt automatic pistol.

The witness for the government testified that the pistol in question was found in the store of the defendant, which is a small grocery store on Sullivan's Island, S.C., near the government reservation; that the pistol was government property; and that the defendant confessed to receiving the same in pledge from a soldier. It was sought to be proven by one of the witnesses that the pistol, when its loss was discovered, had been charged to and paid for by the soldier to whom it was issued. The court excluded this testimony, to which defendant excepted. The defendant offered no further evidence, but moved the court to direct a verdict of not guilty on the ground that the corpus delicti had not been established by evidence independent of the extra-judicial confession of the accused. The court below overruled this motion upon the ground that there were circumstances corroborative of the confession made by defendant, and that therefore the same should be submitted to the jury for its consideration, to which defendant excepted. The jury found the defendant guilty, and upon which judgment was entered. The case comes here on writ of error.

The first assignment of error is to the effect that the presiding judge erred in overruling and refusing a motion of defendant for the direction of a verdict of not guilty at the close of the government's evidence. This motion was based upon the contention that the corpus delicti of the crime had not been established by evidence independent of the confession of the accused. We think that this assignment is without merit for the following reasons: In addition to the defendant's confession, the government established the fact that the pistol in question was issued by the quartermaster sergeant to one Cartlidge, a musician and member of the 145th Company of the United States Coast Artillery. It was further shown that defendant's grocery store was located very near the government reservation on Sullivan's Island, where the company to which we have referred was stationed. It is true that some of these facts were only circumstantial, but, nevertheless, they tended to corroborate the confession of the defendant.

In the case of United States v. Williams, 1 Cliff. 28, Fed. Cas. No. 16,707, the Supreme Court said:

'All that can be required is that there should be corroborative evidence tending to prove the facts embraced in the confession; and, where such evidence is introduced it belongs to the jury, under the instructions of the court, to determine upon its sufficiency.'

We think the evidence offered to corroborate the confession of the defendant was such as to warrant the jury in inferring that the defendant knew that Cartlidge was a soldier, and also that the pistol was government property.

This leaves the remaining point as to whether the pistol was actually pledged to the defendant. Section 1242 of the Revised Statutes is as follows:

'The clothing, arms, military outfits, and accoutrements furnished by the United States to any soldier shall not be sold, bartered, exchanged, pledged, loaned, or given away; and the possession of any such property by any person not a soldier or officer of the United States shall be prima facie evidence of such sale, barter, exchange, pledge, loan, or gift. Such property may be seized and taken from any person, not a soldier or officer of the United States, by any officer, civil or military, of the United States, and shall, thereupon, be delivered to any quartermaster or other officer authorized to receive the same.'

Also, section 3748 is as follows:

'The clothes, arms, military outfits, and accoutrements furnished by the United States to any soldier shall not be sold, bartered, exchanged, pledged, loaned, or given away; and no person not a soldier, or duly authorized officer of the United States, who has possession of any such clothes, arms, military outfits, or accoutrements, so furnished, and which have been the subjects of any such sale, barter, exchange, pledge, loan, or gift, shall have any right, title, or interest therein; but the same may be seized and taken whereever found by any officer of the United States, civil or military, and shall thereupon be delivered to any quartermaster, or other officer authorized to receive the same. The possession of any such clothes, arms, military outfits, or accoutrements by any person not a soldier or officer of the United States shall be presumptive evidence of such a sale, barter, exchange, pledge, loan, or gift.'

In the foregoing it is provided that all clothes, arms, military outfits, etc., furnished by the United States to any soldier or officer is not to be sold,...