Fuston v. United States

• Decision Date: 17 October 1927
• Docket Number: No. 5175.,5175.
• Citation: 22 F.2d 66
• Parties: FUSTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

22 F.2d 66 (1927)

FUSTON v. UNITED STATES.

No. 5175.

Circuit Court of Appeals, Ninth Circuit.

October 17, 1927.

Thomas Mannix and I. C. Ankelis, both of Portland, Or., for plaintiff in error.

George Neuner, U. S. Atty., and J. N. Helgerson, Asst. U. S. Atty., both of Portland, Or.

Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.

HUNT, Circuit Judge.

Fuston, alias Charley Bennett, plaintiff in error, was convicted of violation of section 28 of the Penal Code (18 USCA § 72), in that he made and forged a certain stockraising homestead application, by signing a false and fictitious name, Charley Bennett, to the application, and that he transmitted and presented the application to the office of the register of the United States land office at The Dalles, Or. He brought this writ of error.

By stipulation certain records were introduced. The government offered a homestead application made by Chester Fuston in 1915 (Exhibit 1), and an additional homestead application by Chester Fuston made in 1917 (Exhibit 2). Counsel for defendant admitted that the exhibits were official documents, but would not admit that they were signed by Fuston. The court admitted them merely as official United States land office documents on file. The signatures were not admitted until proven. Thereupon Exhibits 3, 4, 5, and 6 were also admitted as United States land office records, but the court held that the genuineness of the signatures thereon would have to be proved. Exhibits 3 and 4 are files containing notices of intention to make proof of homestead entry, signed "Chester Fuston." Exhibits 5 and 6 relate to applications for relinquishment to certain lands, and are signed "Charley Bennett." In Exhibit 5 is an answer, verified by "Charley Bennett," in a contest proceeding then pending in the land office. In Exhibit 6 is a return receipt for registered mail, signed "Charley Bennett, by Chet Fuston." Defendant admitted that he signed that receipt. Government's Exhibits 7, 8, 9, and 10 were official documents from the motor vehicle department of the state of Oregon, each being signed "Chester Fuston," and each of which was admitted to be in the handwriting of defendant, Chester Fuston. Exhibit 11 contains a photostatic copy of a check drawn by an official of the land office to the order of Charley Bennett, indorsed "Charley Bennett."

Plaintiff in error argues that the court permitted an expert witness to testify "as to similarity between certain signatures without proving them." The assignment lacks merit, for it distinctly appears that the signatures on Exhibits 7, 8, 9, and 10 (the official state records) were admitted to be genuine, and upon such admission the court ruled that the expert could make comparisons of handwriting between such admitted signatures of Fuston and the name Chester Fuston which appeared on other exhibits introduced. Furthermore, inasmuch as a witness testified that defendant in his presence signed the name "Charley Bennett" to the answer above referred to as filed in the contest matter, it was proper to permit the expert to testify that the handwriting of the signatures "Charley...