Gros v. United States, 10176.

Decision Date15 October 1943
Docket NumberNo. 10176.,10176.
Citation138 F.2d 261
PartiesGROS v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Irwin H. Roth and Morris Lavine, both of Los Angeles, Cal., for appellant.

Howard A. Calverley, John Marvin Dean, and Howard V. Calverly, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment sentencing appellant to eighteen months in the penitentiary for conspiring with others to disclose unlawfully to the German Reich information affecting the National Defense in violation of the Act of June 15, 1917, c. 30, Title I, § 2, 40 Stats. 218, 50 U.S.C.A. § 32. The jury was waived and the case was tried by the district judge.

Appellant, Frances Gros, is the wife of Hans Helmut Gros, charged as a co-conspirator with her, whose conviction was reversed and a new trial ordered in Gros v. United States, 9 Cir., 136 F.2d 878, decided June 21, 1943.

The agents of the Federal Bureau of Investigation procured a confession from appellant admitting that she conspired with Dr. Gros with reference to his correspondence with Germany and that she realized she was engaging in espionage activities. A Bureau agent testified that she admitted to him that she took dictation of a letter from Dr. Gros containing information prohibited by the Act of June 15, 1917, and gave Dr. Gros a copy. A copy of the letter was introduced in evidence. Her counsel objected to the introduction of the confession and the testimony of her admission on the ground that the corpus delicti had not been shown. The objection was overruled and further evidence introduced. On the conclusion of the evidence her counsel moved for dismissal on the ground of insufficiency of the evidence other than the confession to support the charge. The motion was denied and the court adjudged her guilty and sentenced her to eighteen months' imprisonment. This appeal followed.

We hold that on consideration of all the evidence the corpus delicti was established by other evidence and that it was not error to accept the confession and admission in evidence before it was established. Here the case was tried by the judge. We believe it better practice in jury tried cases to require the establishing of the corpus delicti before the introduction of a confession.

Dr. Gros was offered as a witness by Frances Gros, as well as testifying on his own behalf. She thereby waived any privilege arising out of their marital relation, Funk v. United States, 290 U.S. 371, 380, 54 S.Ct. 212, 78 L.Ed. 369, 93 A.L.R. 1136, and any objection that he was an accomplice or a co-conspirator whose testimony required other corroboration. Cf. Ahearn v. United States, 9 Cir., 3 F. 2d 808; Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502 Ann.Cas.1917B, 1168.

Dr. Gros testified that he wrote letters to reach an uncle, a Lieutenant Colonel in the German Army, who aided him in securing the necessary documents to enable Dr. Gros to come to the United States, gave him various addresses of other persons for the letters Dr. Gros was to write him, and from time to time sent him funds; that "he may have given his uncle the impression he was doing something for the German Government here;" that "he wrote these letters because he had to write something to his uncle; that he wanted his uncle to keep the idea that he was doing something because he wanted his uncle to continue forwarding him his money; that he wanted to get as much of his money out as possible;" and that "he received letters from his uncle but they were not asking about information. He was getting his money from Germany right along and in all his letters to his uncle he was asking for money because his uncle didn't send as much money as he had promised to."

In Frances Gros' diary, offered in evidence, is an entry of February, 1940, in her handwriting, "Helmut asked me to work for the German Secret Service, (I didn't accept)." There was confirmation of her knowledge of Dr. Gros' activities in her statement to a deputy sheriff, a Government witness, in May or June, 1940, of Dr. Gros' suspicious correspondence with Germany which she thought the Government should investigate. Evidence of her statement showing knowledge pertinent to the issue of guilt may be considered, because the statement was for a purpose of her own other than an admission.

In her diary these were preceding and succeeding entries showing Dr. Gros' ardent courtship and an intimacy which brought her constantly in Dr. Gros' apartment, where witnesses testified they saw her. Dr. Gros' landlady stated, "Frances Gros first obtained permission to enter his rooms in his absence because she had some writing to do for him," also to be considered, since not in the nature of an admission. She was seen in his room at a typewriter. On October 8, 1940, they were married.

Fifteen months later, on January 21, 1942, when their rooms were...

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12 cases
  • United States v. Anthony, Cr. No. 12662.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 14 Septiembre 1956
    ...some cases, adhering to the fiction of single entity, so hold: Dawson v. United States, 9 Cir., 1926, 10 F.2d 106; Gros v. United States, 9 Cir., 1943, 138 F.2d 261, 263, one judge dissenting; and dissenting opinion Ansley v. United States, 5 Cir., 1943, 135 F.2d 207, 208; United States v. ......
  • United States v. Pipefitters Local Union No. 562, 19466.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 17 Diciembre 1970
    ...even though they were not challenged or reserved." In Gros v. United States, 136 F.2d 878, 880-881 (9 Cir. 1943), reversed on rehearing 138 F.2d 261, the principle is similarly expressed: "It is obvious that it is immaterial in a court of justice whether the court sua sponte first recognize......
  • United States v. Khandjian, 73-1428.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 6 Febrero 1974
    ...delicti has been established." However, the Ninth Circuit repudiated this statement as "dictum" three years later in Gros v. United States, 9 Cir., 1943, 138 F.2d 261, 264.4 Although we have found no discussion in this circuit of the policy considerations involved in proof of the corpus del......
  • Blumenthal v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 28 Febrero 1947
    ...is clearly indicated in Stack v. United States, supra; Marino v. United States, supra; Rose v. United States, supra and Gros. v. United States, 9 Cir., 138 F.2d 261. See also Hoeppel v. United States, supra and McDonald v. United States, 77 U.S.App.D.C. 33, 133 F.2d Appellants also contend ......
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