Green v. United States, 4324

• Decision Date: 25 August 1949
• Docket Number: No. 4326.,4325,No. 4324,4324,4326.
• Citation: 176 F.2d 541
• Parties: GREEN v. UNITED STATES. HIGGINS v. UNITED STATES. MARKS v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

176 F.2d 541 (1949)

GREEN v. UNITED STATES.

HIGGINS v. UNITED STATES.

MARKS v. UNITED STATES.

Nos. 4324, 4325, No. 4326.

United States Court of Appeals First Circuit.

Heard March 2, 1949.

Decided August 25, 1949.

Wilbur Hollingsworth, Boston, Mass., for appellants.

Charles Miller, Assistant U. S. Attorney, Boston, Mass. (William T. McCarthy, United States Attorney, of Boston, Mass., on the brief), for appellee.

Before MAGRUDER, Chief Judge, and CLARK and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

The appellants were separately indicted in the court below in three counts for stealing mail matter in violation of 18 U.S.C.A. § 317, now 18 U.S.C.A. § 1708. In count one of each indictment it was charged that the defendant named therein, on or about October 1, 1946, "did steal, take and abstract a letter containing a bank statement from the authorized mail depository of Mrs. Janet H. Jones", of Boston. In count two of the indictments the defendants were charged with the identical offense with respect to the authorized mail depository of Sidney E. White, of Allston, and in count three the defendants were charged with the same offense with respect to the authorized mail depository of Mabel G. Bradfield, of Brookline. The defendants were tried together by a jury on pleas of not guilty; verdicts of guilty were returned as to each defendant on all three counts of the indictments, and the defendants were sentenced to four years imprisonment on each count, the sentences to run concurrently, and "to begin upon the release of defendant from institution where he is now serving a sentence under a judgment of a court of the Commonwealth of Massachusetts." Each defendant thereupon appealed to this court and we ordered consolidation and permitted prosecution in forma pauperis.

The government did not produce any eye witness to establish its charges. To prove the thefts alleged it relied upon circumstantial evidence and the testimony of an informer as to admissions made by the defendants while they and the informer were fellow prisoners awaiting trial in the Federal House of Detention in New York. And to charge each defendant with each separate theft of mail matter alleged, it relied upon the statutory provision making an aider or abettor a principal. Formerly 18 U.S.C.A. § 550;¹ now 18 U.S.C.A. § 2.

The Government's case rests in large measure upon the testimony of one Shulman, a former accomplice of the defendants, who turned state's evidence. This witness said that he met the defendants in Boston by pre-arrangement on September 30, 1946, and that on that day all four of them together drove out to Somerville in a rented car. There the defendants got out of the car and went away, and when they returned a short time later the defendant Green remarked that there "was no luck", but probably "the bank statements would come out" tomorrow, whereupon they returned to their respective hotels. The next morning, Shulman testified, he met all of the defendants at a hotel, and at that time the defendant Higgins told him that he was "too inexperienced to go after any mail boxes", so, instead of "hanging around the hotel room" waiting for them to "get back with any news, you just go out with Marks." The witness said that he did so, and he and Marks went to the Coolidge Corner section of Brookline where Marks left the car saying he would "scout around" and "see what luck" he had; that Marks returned in about half an hour saying he "had fairly good luck", and that they then returned to the hotel from which they had set out. Shulman said the other defendants joined them in about an hour and then "the three of them huddled around the table at the other end of the room, and I saw them take out big brown Manila envelopes out of their pockets. And I just sat on the bed, being very disinterested, and they didn't let me in their conversation, so I thought it was none of my business and I just sat there."

Following this testimony the witness described in detail certain checks made out to cash given to him by Marks and purportedly drawn in one instance by Janet H. Jones, in another by Sidney E. White, and in two instances by Mabel G. Bradfield, and how, acting upon instructions from the defendants, he cashed those checks through innocent third persons as intermediaries and delivered the proceeds to the defendants who divided those proceeds with him share and share alike.

In addition the Government put Jones, White and Bradfield on the stand who testified to finding the checks described in detail by Shulman in their respective bank statements for October, 1946, and that they had not drawn them. Mrs. Jones testified that on October 2, 1946, at "about quarter of ten" she took her mail, including her bank statement, out of her mail box in the vestibule of the apartment house in which she lived, glanced through it, and put it back; that "around twelve o'clock" when she returned her bank statement was missing from her mail box; and that "in a couple of days" she "noticed that it was back." Neither Sidney White nor Mabel Bradfield testified to noticing any delay in receiving their bank statements for the month of September 1946.

The Government also put a handwriting expert on the stand who expressed the opinion that the drawer's names on those checks were traced forgeries.

Moreover the Government introduced the testimony of the informer, referred to earlier in this opinion, who testified to conversations with Marks in the presence of the other two defendants while all four were under detention in New York in the course of which Marks said "We...