Chitwood v. United States

• Decision Date: 27 April 1907
• Docket Number: 2,455.
• Citation: 153 F. 551
• Parties: CHITWOOD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

153 F. 551

CHITWOOD v. UNITED STATES.

No. 2,455.

United States Court of Appeals, Eighth Circuit.

April 27, 1907

Geo. W Murphy (Charles T. Coleman and W. M. Lewis, on the brief) for plaintiff in error.

William G. Whipple, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

Defendant Chitwood, a clerk in the post office at Hot Springs, Ark was indicted under section 5467 of the Revised Statutes (U.S Comp. St. 1901, p. 3691) in seven counts: (1) For secreting and embezzling a letter containing a watch fob; (2) for stealing and taking the watch fob out of a letter; (3) for stealing and taking a $10 bill out of a letter; (4) for stealing and taking a $5 bill out of a letter; (5) for stealing and taking another $5 bill out of a letter; (6) for secreting and embezzling a letter containing a post-office money order; (7) for secreting and embezzling a package containing a lady's belt. He was tried and found guilty on the first count and not guilty on the others. He now prosecutes this writ of error to secure a reversal of the judgment.

There was evidence on the part of the government tending to show that while he was engaged in discharging his duties as clerk in the evening of March 9, 1906, a letter came into his possession as such clerk to be forwarded and delivered to one Abe Levy, to whom it was addressed; that Chitwood cut it open, took a watch fob from it, threw the envelope down and took the fob and placed it in an empty pigeonhole. The inspectors, who were watching at a distance, observing the foregoing facts, arrested him before he left the post-office building. The defendant taking the stand in his own behalf contradicted the evidence of the inspectors, and testified that he found the fob loose on his table while he was assorting mail; that he picked it up and put it in a pigeonhole, intending, if he did not find the package from which it came, to turn it over in the morning to the proper clerk for disposition; that the letter addressed to Levy was open when it came into the post office, and that the defendant did not open it. In support of his testimony to the effect just stated, defendant called three witnesses, clerks and former clerks in the Hot Springs post office, and asked them, in substance, if it had not been, for two months prior to the night in question, a common and usual thing for letters and packages to be received at that post office in bad condition, with edges so broken and worn out that trinkets or other enclosures might fall out; and he offered to show that for those two months the incoming mails had been heavy and that letters and small packages had been frequently found unsealed, torn, and broken open, as circumstances tending to support his theory of the facts and his innocence. The questions so asked and the offers to prove so made were objected to by the government, the objections sustained by the court, to which the defendant duly excepted.

We think it was error to exclude that evidence. The defendant was standing on his plea of not guilty, and the burden was on the government to establish his guilt. It produced witnesses who testified directly to seeing the defendant do things consistent only with guilt. The value of their testimony depended upon the accuracy of their observations, the reliability of their memory in describing what they saw, and the credibility due them as witnesses. Defendant denied doing what they swore they had seen him do. A sharp and vital issue was thus presented for the consideration of the jury. We think, if it were true that immediately preceding and up to the time in question it had been and was a common practice in that post office for mail to come into the office in bad condition and with ends and edges so broken or worn out that solid substances might readily fall from them, such fact would be a circumstance tending to support defendant's theory. Its value might not be great as against the other direct and positive testimony with which the trial court compared it and on account of which rejected it; but that was for the jury, and not for the court, to decide. The defendant had an undoubted right to buttress his own testimony by any and all circumstances and facts fairly tending to support it, and we think the facts offered to be proved by him were admissible for that purpose. For the error in excluding that evidence, the judgment must be reversed.

As one of defendant's contentions has been earnestly debated before us and probably will be the occasion of controversy at the next trial, we deem it proper to express our opinion concerning it. Witness Reaves was permitted to testify for...