Hamil v. United States

• Decision Date: 30 April 1924
• Docket Number: 4301.
• Citation: 298 F. 369
• Parties: HAMIL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

298 F. 369

HAMIL v. UNITED STATES.

No. 4301.

United States Court of Appeals, Fifth Circuit.

April 30, 1924

Oliver D. Street, of Guntersville, Ala., for plaintiff in error.

C. B Kennamer, U.S. Atty., of Guntersville, Ala., and Jim C Smith, Asst. U.S. Atty., of Birmingham, Ala.

Before WALKER and BRYAN, Circuit Judges, and CALL, District Judge.

BRYAN Circuit Judge.

The defendant, Burley H. Hamil, captain of an infantry company in the Alabama National Guard, was convicted on a count of an indictment which charges that he forged the indorsement of one Odis Gauntt, the payee of a genuine check for $36.40 drawn upon the Treasurer of the United States by a finance officer, in violation of section 148 of the Criminal Code (Comp. St. Sec. 10318). The trial court overruled a demurrer which asserts the proposition that forgery of the indorsement does not constitute forgery of an 'obligation or other security of the United States.'

The case was set for trial on the day after the indictment was found, and the defendant moved for a continuance on the grounds that he had not had an opportunity to prepare for trial, and that the adjutant general, a major, and the lieutenant who had kept the company records were necessary witnesses in his behalf and were absent, and that the lieutenant would testify that he made out the pay rolls from records which he kept, and that both the pay rolls and the records were correct. In opposition to the motion for continuance it was shown that the defendant had been arrested some three weeks earlier, and that ten days before the district attorney had furnished the defendant with a copy of the charges against him, together with notice that the case would be called for trial the day following the finding by the grand jury of an indictment. The attendance at the trial of the adjutant general and the major was secured. The court denied defendant's motion for continuance on account of the absence of the lieutenant, because it was not shown that he would certainly be present at the next term of court. The motion for continuance was informally made and was not supported by affidavit.

One Ryan, a United States secret service agent, testified to a conversation he had with the defendant, and on cross-examination was asked if he had not paid closer attention to the things which were unfavorable than to those which were favorable to the defendant. On redirect examination, and over defendant's objection, this witness was permitted to testify that in making his investigation he was merely performing his duty.

The defendant, testifying in his own behalf, admitted that he received Odis Gauntt's check, indorsed it, and collected the amount of money called for by it. He claimed that Odis Gauntt owed the government for some trousers and shoes which were charged to him, the defendant; that he made a statement to this effect to Gauntt's father, and that the latter told him to cash the check and deduct the amount of his son's indebtedness; and that he did this and paid the balance over to Gauntt's father. The father denied this testimony of the defendant on both his direct and cross examination, and after he had done so the court sustained an objection to a question which called for a repetition of the same testimony.

After two witnesses had testified that the defendant's general reputation for honesty and integrity was good, the court inquired whether it was the intention of the government to offer evidence to the contrary, and, on being informed that it was not, then stated that he would limit character witnesses to four in number. The defendant excepted, but only offered the testimony of one additional witness on this subject.

The court denied defendant's request to charge the jury that he could not be convicted for forgery if he had verbal authority or authority reasonably implied to indorse the name of the payee on the check, but of its own motion charged that the defendant could not be convicted if he mistakenly but honestly believed that he was authorized to make the indorsement, and that the burden was upon the government to prove beyond all reasonable doubt, not only that the defendant wrote the payee's name on the back of the check, but also that in doing so he entertained a criminal intent to defraud.

There are a number of other counts in the indictment, but as to them the defendant was acquitted. One of them describes the check as an order in writing, instead of as 'an obligation or other security of the United States. ' The defendant contends that the verdict was thus...