Conley v. United States

• Citation: 23 F.2d 226
• Decision Date: 10 January 1928
• Docket Number: No. 2665.,2665.
• Parties: CONLEY v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

23 F.2d 226 (1928)

CONLEY v. UNITED STATES.

No. 2665.

Circuit Court of Appeals, Fourth Circuit.

January 10, 1928.

J. M. Wells, Jr., of Winston-Salem, N. C. (John C. Wallace, of Winston-Salem, N. C., on the brief), for plaintiff in error.

F. A. Linney, U. S. Atty., of Charlotte, N. C. (Ralph Bingham, Asst. U. S. Atty., of Vilas, N. C., on the brief), for the United States.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

On the night of October 2, 1926, the store of one George Fowler, at Greensboro, in the Western district of North Carolina, was broken into, and among other things stolen were three registered Liberty Bonds — one for $100, registered in the Treasury Department of the United States in the name of Mrs. Mary F. Fowler; one for $100, registered in the name of George O. Fowler; and one for $50, registered in the name of Miss Elyn C. Fowler. A number of the articles taken from the safe in the store were found a short distance from Greensboro, on the highway toward Asheville. Everything of no value was left hidden on the side of the road, but, along with other property, the bonds above mentioned were carried away.

On November 19, 1926, the plaintiff in error and defendant below, John Conley, was arrested in a resort in Detroit, Mich., and the three stolen bonds, with the names of the payees erased, were found by the officers arresting Conley, under the table at which he was sitting with others in the resort. The defendant was brought back to North Carolina, and was indicted in the United States District Court at Greensboro, in that state, at the December term, 1926. The indictment contains three counts, charging violation of sections 148 and 151 of the Penal Code (18 USCA §§ 262, 265), and charged that defendant altered said Liberty Bonds by erasing the names of the payees, and had in possession said bonds, so altered, with intent to defraud.

In July, 1927, the defendant was tried and, the jury having returned a verdict of guilty, was sentenced to ten years' imprisonment in the federal penitentiary, at Atlanta, from which judgment of the court this writ of error was sued out.

There was evidence tending to show that the defendant was in Greensboro at the time of the burglary. Five assignments of error were filed by the defendant, charging that the court erred:

First, in failing to direct a verdict for the defendant at the close of the evidence introduced by the prosecution.

Second, in not directing a verdict for the defendant at the close of all the evidence.

Third, in refusing to give the following charge asked for by the plaintiff:

"The court charges you, gentlemen of the jury, that if the state has failed to satisfy you beyond a reasonable doubt that the defendant had in his possession the bonds set out in the bill of indictment within the state of North Carolina after the same had been altered, or have failed to satisfy you beyond a reasonable doubt that the defendant altered the bonds set out in the bill of indictment within the state of North Carolina, then you will find the defendant not guilty."

Fourth, that the court erred in the giving of the following instructions:

"If you find from the evidence beyond a reasonable doubt that the defendant, alone or in concert with the codefendant, Burns, took the bonds in question from the safe in Greensboro and altered them here in the Western district of North Carolina, or carried them out of the Western district of North Carolina with the intention and for the purpose of altering them elsewhere, and further find that they did alter them by erasing the names of the payees, and further find beyond a reasonable doubt that such alteration was done with intent to defraud, as I have defined heretofore, then it will be your duty to return a verdict of guilty.

"It is necessary for the government to prove beyond a reasonable doubt that the crime was committed in the Western district of North Carolina, or that it was begun in North Carolina and completed elsewhere, before you can return a verdict of guilty."

Fifth, that the court erred in refusing to set aside the judgment.

The contention of the government is that the venue was properly laid under section 1024, U. S. Comp. Stat. Ann. (28 USCA § 103), which reads as follows:

"When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein."

In construing this statute, the Supreme Court has said:

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