Kelling v. United States, 11918.

• Decision Date: 30 June 1941
• Docket Number: No. 11918.,11918.
• Citation: 121 F.2d 428
• Parties: KELLING v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

121 F.2d 428 (1941)

KELLING v. UNITED STATES.

No. 11918.

Circuit Court of Appeals, Eighth Circuit.

June 30, 1941.

Allen L. Ginsburg, of St. Paul, Minn. (Simon Ginsburg, of St. Paul, Minn., on the brief), for appellant.

Linus J. Hammond, Asst. U. S. Atty., of St. Paul, Minn. (Victor E. Anderson, U. S. Atty., of St. Paul, Minn., on the brief), for appellee.

Before STONE, WOODROUGH and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

Appellant and one Don Leach were jointly indicted in eleven counts for using the mails in furtherance of a scheme to defraud, in violation of 18 U.S.C.A. § 338; and in a twelfth count for conspiracy, in violation of 18 U.S.C.A. § 88. The defendant Don Leach plead nolo contendere to the first count and the remaining counts were dismissed as to him. Thereafter, and before sentence had been imposed upon Don Leach, the appellant was tried upon his plea of not guilty and was found guilty as to the first count, and not guilty as to nine counts. The sixth and twelfth counts were dismissed during the trial, which commenced November 28, 1940, and was concluded December 12, 1940.

In its instructions to the jury, the trial court, immediately after stating the charges made in the indictment against the defendant on trial, observed: "The defendant Don Leach is not on trial. He has heretofore entered a plea to the first count of the indictment, known in the law as `nolo contendere' which in substance means that he does not desire to contest the charges made by the government in the indictment, and subjects himself to sentence by the court. The other and remaining counts of the indictment against him have been dismissed by the Court on motion of the United States Attorney."

The appellant has not brought up any of the evidence taken on his trial, but at the conclusion of the court's charge to the jury he took "exception to the court's reference to the plea of nolo contendere by Don Leach", and his only contention on this appeal is that the inclusion of the quoted matter in the charge was prejudicial and reversible error.

Our conclusion is to the contrary. In other parts of its charge the court correctly and clearly informed the jury that in determining the guilt of the defendant on trial it could "only take into consideration defendant's own statements, actions and conduct, and his own connection with the actions of others as shown by the evidence, independent of any statement or declaration by others, including Don Leach, unless you find from such evidence that Don Leach was also a party to the scheme. It is only after you find that the defendant Kelling was a party to said scheme that the statements, declarations or conduct of Don...