Henderson v. United States

• Citation: 20 F.2d 90
• Decision Date: 23 May 1927
• Docket Number: No. 7619.,7619.
• Parties: HENDERSON v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

20 F.2d 90 (1927)

HENDERSON v. UNITED STATES.^*

No. 7619.

Circuit Court of Appeals, Eighth Circuit.

May 23, 1927.

R. M. Sheppard, of Kansas City, Mo. (Bert S. Kimbrell, of Kansas City, Mo., on the brief), for plaintiff in error.

S. M. Carmean, Asst. U. S. Atty., of Kansas City, Mo. (Roscoe C. Patterson, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before BOOTH, Circuit Judge, and FARIS and DAVIS, District Judges.

BOOTH, Circuit Judge.

This is a writ of error to a judgment of conviction of Henderson under the Act of March 3, 1897 (29 Stat. 626, 628, c. 379, § 7 Comp. St. § 6076), relating to unlawful possession or use of counterfeit internal revenue strip stamps.

The indictment contained three counts. The first charged that Theodore Schultze and Henderson, on or about the 1st of June, 1925, unlawfully and with intent to defraud the United States, had in their possession certain counterfeit strip stamps in the similitude of revenue engraved strip stamps authorized by Congress under the Act of March 3, 1897, well knowing the same to be counterfeit. The second count charged a sale to John F. Van Arsdale of some of said stamps, knowing them to be counterfeit. The third count charged a sale of some of said stamps to Frank Hammett, knowing them to be counterfeit. A copy of the alleged counterfeit stamps was set out at length. On the trial, a severance was granted on motion of defendant Henderson. The second count was dismissed by the government.

There was evidence tending to show that, shortly prior to June 2, 1925, J. F. Van Arsdale, an agent of the Internal Revenue Department of the government, called upon Frank Hammett at his place of business in Kansas City, and sought to buy whisky strip stamps and labels. Negotiations were carried on, with the result that on the morning of June 2d, the agent left with Hammett $70 with which to procure the stamps and labels. Hammett had previously been advised by Henderson that Schultze could furnish such labels "complete." Hammett communicated with Schultze after receiving the $70, and during the same forenoon Schultze and Henderson brought the strip stamps and the labels to Hammett in a package. Thereupon Hammett paid Schultze $50. Schultze turned the money over to Henderson, who signed a receipt for it and handed it to Schultze. In the afternoon Van Arsdale called and received the package from Hammett. Shortly thereafter Hammett was arrested. Thereupon he made a statement which was used as the basis for a search warrant to search the business premises occupied by Schultze, and in which Henderson had an interest. The officers who made the search found on the premises whisky labels, order blanks, price lists, and strip stamps. These were produced on the trial and offered and received in evidence.

Schultze, called as a witness by the government, testified that Henderson had bought a considerable quantity of strip stamps and labels a short time before, and had stored them in the basement of another place of business occupied by Henderson; that, when Schultze received the order from Hammett, he went to this latter place of business and told Henderson that Hammett wanted to buy a book of labels and stamps; that Henderson told him to go down into the basement and get them, which he did; that he and Henderson then took them to Hammett and delivered them.

Henderson, testifying on his own behalf, denied taking any part in the transaction or having any knowledge of it. The jury found Henderson guilty on the first count; not guilty on the third count.

One of the assignments of error relied upon relates to the exclusion of certain evidence theretofore given before a United States commissioner by Hammett, who was a witness for the government. On the trial Hammett testified that on the 2d of June, 1925, Henderson and Schultz came to the place where he was working in Kansas City, Mo., and delivered a package of the strip stamps in question to him; that he paid $50 to Schultze; that Schultze handed the money to Henderson; and that Henderson wrote and signed a receipt for the same, and gave it to Schultze. On cross-examination, Hammett was asked whether in his testimony before the commissioner he had made any mention of Mr. Henderson being present, and he answered, "I believe that you will find that I answered that question `Yes.'" He was asked whether, in giving his testimony before the commissioner, he testified that Henderson was present with Schultze at the time the package was delivered, and answered, "I am sure you will find it that way."

Later the witness was recalled for cross-examination, and counsel for defendant, having before him a transcript of the testimony given before the commissioner, examined the witness at length as to his testimony before the commissioner, reading into the record the questions and answers as they appeared in the transcript. Finally, counsel for defendant asked the witness the following question: "Now, I will ask you if at any time in your evidence before the commissioner you made any statement that Henderson and Schultze — or that Henderson was with Schultze...