Gesell v. United States

• Decision Date: 19 August 1924
• Docket Number: No. 6098.,6098.
• Citation: 1 F.2d 283
• Parties: GESELL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

1 F.2d 283 (1924)

GESELL et al. v. UNITED STATES.

No. 6098.

Circuit Court of Appeals, Eighth Circuit.

August 19, 1924.

Victor L. Power and George S. Power, both of Hibbing, Minn., and John Ott and Schall & Conley, all of Minneapolis, Minn., for plaintiffs in error.

Lafayette French, Jr., U. S. Atty., and William Anderson, Asst. U. S. Atty., both of St. Paul, Minn.

Before SANBORN and LEWIS, Circuit Judges, and SCOTT, District Judge.

SCOTT, District Judge.

The defendants were indicted in the district of Minnesota in two counts for alleged violation of section 151, Criminal Code of the United States (Comp. St. § 10321). In count 1 it is alleged that "on the 1st day of March, 1921, in the city of Minneapolis, * * * and district of Minnesota, * * * Howard E. Gesell and Nels B. Nelson feloniously did keep in their possession one falsely forged obligation and security of the United States of the tenor following, that is to say:

"`4¾% "`Convertible Gold Note C 152386 of 1922-1923 "`$500 $500

"`The United States of America for value received promises to pay to Albert Lillo or registered assigns the sum of five hundred dollars, on May 20, 1923, and to pay interest on said principal sum from May 20, 1919, until the principal hereof shall be payable, at the rate of four and three-quarters per cent. per annum, payable on December 15, 1919, upon presentation and surrender of the interest coupon hereto attached, and thereafter to the registered holder semiannually on June 15 and December 15, and on May 20, 1923, at the Treasury Department, Washington, or, at the holder's option, at any agency or agencies in the United States which the Secretary of the Treasury may from time to time designate for the purpose. The principal and interest hereof are payable in United States gold coin of the present standard value. This note is one of a series of four and three-quarters per cent. convertible gold notes of 1922-1923, authorized by an act of Congress approved September 24, 1917, as amended, and issued pursuant to Treasury Department Circular No. 138, dated April 21, 1919, to which reference is hereby made for a statement of the further rights of the holders of notes of said series as fully and with the same effect as if herein set forth. All or any of the notes of this series may be redeemed, at the option of the United States, on June 15 or December 15, 1922, at par and accrued interest, as in said circular provided. This note does not bear the circulation privilege.

"`Washington, May 20, 1919. "`Recorded: BJ Examined: VE "`Carter Glass "`Secretary of the Treasury. "`Houston B. Teehee "`Register of the Treasury.

"`Transferable on the books of the United States Treasury Department. Gold note of the United States.

Transfer For value received ...... assign to ..... the within registered note of the United States and hereby authorize the transfer thereof on the books of the United States Treasury Department. Albert Lillo Personally appeared before me the Gold Note above named assignor, known or proved to me to be the payee of the of the within note and signed the above transfer acknowledging the same to United be his free act and deed. Witness my hand, official designation and States seal Signature attesting officer. Seal Official designation. Dated at ....., ........, 19. ...

"`* * * * * * *'

"They, the said Howard E. Gesell and Nels B. Nelson, then and there, to wit, at the time and place of so keeping in their possession the said falsely forged obligation and security as aforesaid, well knowing the same to be falsely forged, and intending to utter and pass the same, and thereby to defraud the person or persons into whose hands the same should come through such uttering and passing, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

In the second count it is alleged that "on the 1st day of March, 1921, in the city of Minneapolis, * * * and district of Minnesota, * * * Howard E. Gesell and Nels B. Nelson, the identical persons named in the first count of this indictment, with intent to defraud one Albert Lillo, feloniously did utter and pass a certain falsely forged obligation and security of the said United States, of the tenor set out in count 1 hereof; they the said Howard E. Gesell and Nels B. Nelson then and there, to wit, at the time and place of so uttering and passing the last mentioned falsely forged obligation and security as aforesaid, well knowing the same to be falsely forged, contrary," etc.

No demurrer or motion to quash was interposed to the indictment, but at the close of all the evidence defendants' counsel moved the court for a directed verdict in favor of the defendants, on the ground that the evidence presented was insufficient to sustain a conviction for the offenses described in the indictment. There were other elements to the motion not necessary to be noticed here. The motion was overruled, the cause submitted, and a verdict of guilty returned, upon which judgment was pronounced. The defendants have appealed, assigning as error the denial of defendants' motion for a directed verdict.

The evidence introduced by the government tended to show: That Albert Lillo, on and prior to the night of September 14, 1920, was possessed of a number of registered convertible gold notes of the United States, aggregating in all the sum of $5,050, face value. That on the night aforesaid the safe in which Lillo kept the notes was blown open, and these and other valuables stolen. Some months later the defendant Nelson found the obligations, or some of them, so registered in Lillo's name, while burning brush along the highway, some 25 or 30 miles from where they were stolen. Nelson apparently made inquiries of different friends for a person named Albert Lillo, but failed to learn of such a man. Later on a trip to Minneapolis he met defendant Gesell and informed him of the finding of the notes. Nelson and Gesell were informed by a third party, a stranger to Nelson, but an acquaintance of Gesell, that he knew Lillo, and that a reward was offered for the return of the notes. Nelson later brought the notes to Minneapolis and delivered them to Gesell, on the understanding that they would be returned to Lillo through the stranger and the reward obtained and divided. In truth, the stranger did not know Lillo, and Nelson was evidently being deceived.

A short time after the notes were delivered to Gesell, he and Nelson endeavored to borrow $1,500 on them, but without success. They remained in the possession of Gesell. Neither at the time the notes were stolen nor at the time they were found did they bear the indorsement or assignment of Albert Lillo. A little later Gesell sold some of them, and gave Nelson a part of the money received from the sale. Some of the bonds were subsequently found in a bank in South St. Paul, with what purported to be Albert Lillo's signature filled in the blank purporting to assign the notes. There is no question but the notes or bonds were the genuine obligations of the United States; they were neither falsely made, forged, counterfeited, nor altered. The theory and contention of the government is that the allegations of the several counts in the indictment were sustained by proof that an assignment of the note or bond was forged.

The determination of the question here presented involves consideration of several sections of the Criminal Code. Chapter 7 of the Criminal Code (Comp. St. §§ 10317-10348) deals with "Offenses Against the Currency, Coinage, etc." Section 147 (Comp. St. 10317) defines certain securities and obligations of the United States dealt with in subsequent sections including sections 148 and 151 (Comp. St. §§ 10318, 10321). Section 147 is in the following language:

"The words `obligation or other security of the United States' shall be held to mean all bonds, certificates of indebtedness, national bank currency, coupons, United States notes, Treasury notes, gold certificates, silver certificates, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States, stamps and other representatives of value, of whatever denomination, which have been or may be issued under any act of Congress."

Section 148 is in the following language:

"Whoever, with intent to defraud, shall falsely make, forge, counterfeit, or alter any obligation or other security of the United States shall be fined not more than five thousand dollars and imprisoned not more than fifteen years."

Section 151 is in the following language:

"Whoever, with intent to defraud, shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or shall bring into the United States or any place subject to the jurisdiction thereof, with intent to pass, publish, utter, or sell, or shall keep in possession or conceal with like intent, any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than five thousand dollars and imprisoned not more than fifteen years."

It will be observed that section 148 covers and penalizes the act of falsely making, counterfeiting, or altering "any obligation or other security of the United States" with intent to defraud. The words "obligation or other security" are in themselves general terms, and are used in a series of sections relating to the same general category of offenses. Immediately preceding these sections, however, we find section 147, which with precision defines and quotes this very expression. This section enumerates the different classes of obligations and securities which the words quoted in said section and used in the succeeding sections, "shall be held to mean." These sections respectively were taken from sections 5413, 5414, and 5431 of the Revised Statutes of the...