Colbeck v. United States

• Decision Date: 13 January 1926
• Docket Number: No. 3558,3618.,3560,3562,3558
• Parties: COLBECK et al. v. UNITED STATES, and three other cases.
• Court: U.S. Court of Appeals — Seventh Circuit

10 F.2d 401 (1925)

COLBECK et al. v. UNITED STATES, and three other cases.^*

Nos. 3558, 3560, 3562, 3618.

Circuit Court of Appeals, Seventh Circuit.

December 8, 1925.

Rehearing Denied January 13, 1926.

James E. Carroll and William Baer, both of St. Louis, Mo., and L. S. Harvey, of Kansas City, Kan., for plaintiffs in error Colbeck and others.

Thomas J. Rowe, Sr., of St. Louis, Mo., for plaintiffs in error Lanham and another.

Edmund Burke, of Springfield, Ill., for plaintiff in error Hackethal.

Edward Pree, of Springfield, Ill., for plaintiff in error Eppelsheimer.

Thomas Williamson, of Springfield, Ill., and Horace L. Dyer, of St. Louis, Mo., for the United States.

Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

The plaintiffs in error, with several others, were charged in the court below with the violation of sections 194 and 197 of the Criminal Code (Comp. St. §§ 10364, 10367). The indictment is in four counts, and charges all the defendants, in the first count with robbing persons having lawful charge of the mails; in the second, with robbing such persons and in effecting the robbery, putting the life of the persons having custody of the mails in jeopardy by the use of deadly weapons; in the third, with receiving and concealing stolen mail matter, knowing that it was stolen; and, in the fourth, with having possession of stolen mail matter with knowledge that it was stolen. Plaintiff in error Dietmeyer was found guilty on counts 1 and 2, and the other eight plaintiffs in error were found guilty on all counts. Each was sentenced to the penitentiary for 25 years. Some of them assigned errors and petitioned for writs together and some separately. They are all here on one record; their cases have been heard together, and will be so disposed of. The errors chiefly relied on in the briefs and urged upon the argument are: (a) The overruling of the motions to quash the indictment; (b) the instructions upon alibi; (c) the refusal to allow impeaching witnesses to say whether they would believe an impeached witness under oath; and (d) the instruction upon reasonable doubt.

(a) The motion to quash.

The indictment was returned on September 3, 1924. On October 10, Dietmeyer and Lanham filed their motions to quash. These motions were identical in terms and were based wholly upon the alleged fact that the indictment was found and presented on the evidence of a convict. On October 21, Eppelsheimer filed his motion to quash "because said indictment was not found and presented by the grand jury on legal and competent evidence, but was found and based wholly and entirely on illegal, incompetent, and hearsay evidence." No other conclusion and no facts whatever were alleged in his motion. The case came on for trial on November 10, 1924, and on that morning, just before the trial began, while the jury was in waiting, Colbeck, Daugherty, Robinson, Smith, and Ryan asked leave to withdraw their pleas of not guilty and to file a motion to quash. This motion to quash was based upon the allegation that the indictment was returned upon illegal and incompetent evidence and without legal evidence to connect defendants with the crime charged. These motions were all sworn to upon information and belief.

"A motion to quash is always addressed to the discretion of the court, a decision upon it is not error, and cannot be reviewed on a writ of error." United States v. Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. Ed. 857; United States v. Rosenberg, 7 Wall. 580, 19 L. Ed. 263; Logan v. United States, 144 U. S. 263, 282, 12 S. Ct. 617, 36 L. Ed. 429; Durland v. United States, 161 U. S. 306, 314, 16 S. Ct. 508, 40 L. Ed. 709; Radford v. United States, 129 F. 49, 51, 63 C. C. A. 491. But, aside from this, the motions of Dietmeyer and Lanham were based upon the erroneous notion that a person convicted of an infamous crime is an incompetent witness. The old common-law rule of the incompetency of felons as witnesses is no longer in force in the courts of the United States. Rosen v. United States, 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406; Peace v. United States (C. C. A.) 278 F. 180.

Eppelsheimer's motion stated no facts and alleged mere conclusions and was bad on its face. The request of Colbeck, Daugherty, Robinson, Smith, and Ryan for permission to withdraw their pleas of not guilty and file motion to quash came just as the court was entering upon the trial, and the refusal to permit them to withdraw their pleas of not guilty and file their motion was purely within the discretion of the court. On October 31, the motion of Eppelsheimer came on to be heard. He called the district attorney to the stand, who testified that persons, eyewitnesses, testified before the grand jury to the subject-matter in all its phases, and, in answer to a question, whether there was other evidence before the jury besides the statements of the convict to connect the defendant with the crime the district attorney said "there was positive identification by witnesses." So it appears there was already evidence in the case ten days before the day of trial that competent and legal evidence upon all phases of the matter had been presented to the grand jury. This case illustrates the abuses to which such practices would lead if they were encouraged. If a defendant, without any knowledge of the facts, upon a motion sworn to upon information and belief, can compel a review of the evidence before the grand jury, which returned the indictment against him, to ascertain whether it was competent or sufficient, then all the evidence received must be brought before the court to be weighed and examined. Such practice should not be tolerated, much less encouraged.

In the case most cited in support of such procedure, the reason given for it is that "no person should be subjected to the expense, vexation, and contumely of a trial for a criminal offense, unless the charge has been investigated, and a reasonable foundation laid for an indictment or information." As stated by the court, in Radford v. United States, supra, after conviction this reason no longer exists, a jury, under the guidance of the judge, having heard the evidence in open court and having come to the conclusion, not only that there was reasonable ground for the charge but also that the charge was true.

(b) Alibi.

This defense means that the defendant was elsewhere, away from the scene of the crime when it was committed, and therefore could not have taken part in it. To be effective, it must appear that the defendant was elsewhere during all the activities which go to make up the crime and show his connection with it. The defendants were all indicted as principals. There was evidence to show that a part only perpetrated the actual robbery, while the others were accessories before the fact. Under section 332 of the Criminal Code (Comp. St. § 10506), accessories before the fact are principals, and it has been held that an accessory before the fact may be charged as a principal, and the charge will be sustained by proof showing him to be an accessory before the fact. Vane v. United States, 254 F. 32, 165 C. C. A. 442; Di Preta v. United States, (C. C. A.) 270 F. 73. It is not necessary that one who aids and abets the commissions of a crime be present when the crime is committed. Parisi v. United States (C. C. A.) 279 F. 253, 255. In Jin Fuey Moy v. United States, 254 U. S. 189, 41 S. Ct. 98, 65 L. Ed. 214, the Supreme Court upheld the conviction of a physician upon a charge of "selling" morphine when the evidence showed him to have aided and abetted the sale by issuing a prescription upon which a druggist made the sale. The evidence of the so-called alibi went only to the time of the actual robbery. There was no effort to show that the defendants urging this defense were not at the places at the times when the evidence tended to show...