Holm v. United States

• Decision Date: 22 November 1963
• Docket Number: No. 18620.,18620.
• Citation: 325 F.2d 44
• Parties: Herbert L. HOLM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

325 F.2d 44 (1963)

Herbert L. HOLM, Appellant, v. UNITED STATES of America, Appellee.

No. 18620.

United States Court of Appeals Ninth Circuit.

November 22, 1963.

McKittrick & Marks, and James R. McKittrick, Eureka, Cal., for appellant.

Sidney I. Lezak, U. S. Atty., and Donal D. Sullivan, Asst. U. S. Atty., Portland, Or., for appellee.

Before ORR, MERRILL and BROWNING, Circuit Judges.

ORR, Circuit Judge.

The government charged appellant with a violation of 18 U.S.C.A. § 1342, mail fraud. The information stated that he concocted and put into operation a scheme to defraud the Standard Oil Company of California and its gasoline dealers by the device of obtaining a credit card in an assumed name for the purpose of evading liability for charges made to the credit card. The charged mailing of a credit card. The charged mailing of a credit card application by appellant on November 9, 1959, is the act upon which he was tried and convicted.

On or about November 9, 1959, the Portland, Oregon, Regional Office of the Standard Oil Company of California received a credit card application from a service station located in Oakridge, Oregon. The application was filled out in the name of "Merle Dodd". The government established by competent evidence that the said signature of "Merle Dodd" was written by appellant.

During the months of April, May and June, three successive statements were sent to Merle Dodd at the address given on the application. This address turned out to be fictitious and the statements were returned by the Post Office. At the time the application was made by appellant and the fictitious address was given there was living in Eureka, California, a Mr. Merle Dodd, who sustained a good reputation for honesty and integrity and it was this Mr. Dodd whose credit rating was investigated before the credit card was issued.

Appellant in his own behalf and his former wife testified that he was not present in the State of Oregon at the time the application for the credit card was mailed. This was his alibi. He now complains that the trial court failed to give an instruction on the defense of alibi and thus committed reversible error. The answer to that assignment of error is that appellant failed to ask the court to give such an instruction and hence his objection at this time is without merit. At least that is what the Supreme Court of the United States held in the case of Goldsby v. United States, 160 U.S. 70, at 77, 16 S.Ct. 216, at 219, 40 L.Ed. 343 (1895), where they stated, in part:

"If the accused wished specific charges as to the weight in law to be attached to testimony introduced to establish an alibi, it was his privilege to request the court to give them. No such request was made, and, therefore, the assignments of error are without merit."

Also appellant complains that the trial court in its instructions unduly emphasized the evidence of the government. We have read the instructions. We conclude that they are full, fair and complete. The instructions are well within the rule laid down in Smith v. United States, 9 Cir., 305 F.2d 197, at 205 (9th Cir. 1962), cert. denied Corey v. United States, 371 U.S. 890, 83 S.Ct. 189, 9 L. Ed.2d 124 (1962):

"A federal trial judge, as has many times been said, is more than a moderator or umpire. He has the responsibility to preside in such a way as to promote a fair and expeditious development of the facts unencumbered by irrelevances. He may assist the jury by commenting upon the evidence and this may include an appraisal of the credibility of witnesses, providing the comment is fair and the jury is clearly instructed that they are to find the facts and may disregard such comments."

The trial court was careful to admonish the jury that they were the sole judges of the facts and were to use their own judgment in arriving at their verdict. In this connection we think a cautionary instruction given is worthy of incorporation in this opinion:

"Now, during the course of the trial I occasionally asked questions of a witness. I did that because I thought that there was some question that should be developed about which you should have information. But I did not intend to

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