Cossack v. United States, 7732.

• Decision Date: 02 March 1936
• Docket Number: No. 7732.,7732.
• Citation: 82 F.2d 214
• Parties: COSSACK v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

82 F.2d 214 (1936)

COSSACK v. UNITED STATES.^*

No. 7732.

Circuit Court of Appeals, Ninth Circuit.

March 2, 1936.

Loeb L. Cossack, of Los Angeles, Cal., in pro. per.

Peirson M. Hall, U. S. Atty., and M. G. Gallaher and Joseph J. Irwin, Asst. U. S. Attys., all of Los Angeles, Cal.

Before WILBUR, GARRECHT, and HANEY, Circuit Judges.

GARRECHT, Circuit Judge.

Appellant, Cossack, was indicted with his codefendants, Betty Lang, Fenton, Pollack, and Carlson, alias West. There were two indictments, one involving the robbery of the branch of the California Bank at Forty-Sixth street and Western avenue, Los Angeles, Cal., and taking therefrom $4,300. The other indictment was for holding up the Wilshire & Hauser Branch of the Citizens National Trust & Savings Bank of Los Angeles, and the taking of the sum of $1,523. The cases were consolidated for trial. Originally each indictment was in three counts, but, before the submission of the case to the jury, the second count in each indictment was eliminated. The defendants contended that the first and third count in each indictment charged the same offense in different form. The court instructed the jury that it should find the defendant guilty of only one of these two counts as to each indictment. The jury returned a verdict of guilty as to the first count of each indictment. By this count in each case the defendants were charged with having committed the offense of bank robbery, as defined by 12 U.S.C.A. § 588b (a). Upon the verdict of the jury the District Court pronounced sentence against appellant, Cossack, from which he has appealed to this court.

The evidence discloses that in the method of operation pursued in the case of these robberies defendants Fenton and Carlson would do the actual holdup work; that generally before determining when the robbery was to take place some one would "case the job," which meant a study of the situation in advance as to how many employees there were in the bank, the interior arrangements, the height and situation of counters, and the location of money cages. At times a certain plat of the interior was made, which was gone over in advance of the raid by Carlson and Fenton. In planning the get-away, there would generally be used three or more automobiles, which were located at convenient places, so that Carlson and Fenton in fleeing from the bank would be able to separate and carry on in different cars from the one actually used in the holdup. Some of these automobiles would be rented for the purpose. The testimony shows that appellant did the "casing" for at least one of the jobs involved in one of the indictments; that he also participated in the hiring of cars to assist his robber associates in getting away from the banks; that on one occasion when the loot was divided he was present and, at least once, received the actual money; that at another time Fenton, who formerly was employed about his office, brought the stolen money to the appellant's office, and it was placed into the safe there, and that jointly they used the money for living and other expenses. Appellant admits that he knew his associates were engaged in bank robberies. While he contends that he never had knowledge in advance what particular robbery was to be committed, he admits that after their commission his associates would come to his office and tell him about them. He admits that he received some of the stolen money, which he believed had been stolen when he accepted it, but he contends that the money was received as fees for which he was to render services as attorney, in the event that his associates became involved with the law by reason of these robberies.

When first arraigned, all defendants entered pleas of not guilty. Later, on December 10, 1934, the day before the trial, defendant E. I. Fenton withdrew his plea of not guilty, and by consent of court entered a plea of guilty as to count 1 of each indictment. On the day of the trial the United States district attorney moved that the case as against defendant Joseph Pollack be continued, which motion was granted. Appellant, at the close of the government's case, made a motion for a directed verdict upon the ground that the evidence was insufficient to support a conviction. The motion was denied, and appellant failed to renew this motion at the close of all the evidence. Appellant claims that he was unaware that it was necessary or required to renew this motion at the close of all the evidence to preserve any claim of error as to the sufficiency of the evidence. He insists that there was no substantial evidence of his guilt, and cites the case of Wiborg v. United States, 163 U.S. 632, 16 S.Ct. 1127, 1137, 1197, 41 L. Ed. 289, where the court, among other things, referring to a failure to request that the jury be instructed to find for the defendants, said: "Although this question was not properly raised, yet if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it." Had the motion been made and denied at the close of the case, we could have found no error in the ruling of the court. A careful reading of the record convinces us that there was ample pertinent evidence to support the verdict, and, although much of it was given by the appellant's associates in crime, it was all submitted to the jury under correct instructions of the court.

In Vilson v. United States (C.C.A.9) 61 F.(2d) 901, Judge Neterer, speaking for this court, said:

"In consideration of the evidence on a motion for a directed verdict, the evidence must be considered in its most favorable aspect to the appellee. Citing cases. If there is substantial evidence it must be submitted to the jury, whose function it is to consider and weigh it, and this includes credibility of witnesses. Citing cases.

"The record not only shows there is substantial evidence to sustain the charges, but tended to show that defendant aided and abetted others in the offenses on which defendant is convicted, and that defendant engaged with others in a common conspiracy to do such acts and in either case each of the parties so engaged is guilty of the offenses in issue. Citing cases."

See, also, Abrams v. United States, 250 U.S. 616, at page 619, 40 S.Ct. 17, 63 L.Ed. 1173; Pierce v. United States, 252 U.S. 239, 251, 40 S.Ct. 205, 64 L.Ed. 542; Crono v. United States (C.C.A.9) 59 F.(2d) 339, 340; Maugeri v. United States, 80 F.(2d) 199, decided by this court November 21, 1935.

In the record appellant assigned 96 errors, some of which were abandoned; the remaining being discussed in the brief under 76 specifications of error. It is impractical, and would serve no purpose, to discuss these separately. A large number of assignments of error were to the admission of the testimony of appellant's co-defendants. It is admitted by appellant Cossack that Fenton, one of the codefendants, had for a considerable period worked with him out of his office as an investigator. It is also in evidence that, when codefendant Carlson, alias West, presented himself at the office and told what his business was, appellant directed Fenton to have a talk with him. Growing out of this conversation, Fenton and Carlson engaged in a series of robberies, from the proceeds of some of which Cossack received a part. The appellant likewise had conversations with Lukow and Pollack of such substance and extent as to make the conversations and actions of these parties in connection with the bank robberies admissible in evidence against Cossack, and the court committed no error in the admission of such testimony.

When it is established that persons are associated together to accomplish a crime or series of crimes, then the admissions and declarations of one of such confederates concerning the common enterprise while the same is in progress are binding on the others. It is not the name by which such a combination is known that matters, but whether such persons are working together to accomplish a common result. "* * * The legal principle governing in cases where several are connected in an unlawful enterprise is that every act or declaration of one of those concerned in the furtherance of the original enterprise and with reference to the common object is, in contemplation of law, the act or declaration of all. * * *" 16 C.J. § 1283, p. 646.

The common object of persons associated for illegal purposes forms part of the res gestæ, and acts done with reference to such object are admissible, though no conspiracy is charged. Vilson v. U. S., supra; Sprinkle v. U. S. (C.C.A.) 141 F. 811.

Appellant claims error in the admission of testimony relative to other holdups occurring a short time prior to those involved in the indictment. Cossack's contention was that he was merely acting as attorney for the other defendants and that the money he received from the robberies was purely attorney's fees, and that he had no other connection with them. The testimony objected to and...