Kerr v. United States

• Citation: 11 F.2d 227
• Decision Date: 23 February 1926
• Docket Number: No. 4683.,4683.
• Parties: KERR v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

11 F.2d 227 (1926)

KERR v. UNITED STATES.^*

No. 4683.

Circuit Court of Appeals, Ninth Circuit.

February 23, 1926.

Cooper, Collings & Shreve and Hugh L. Dickson, all of Los Angeles, Cal., for plaintiff in error.

Samuel W. McNabb, U. S. Atty., and J. George Ohannesian, Asst. U. S. Atty., both of Los Angeles, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge.

Defendant below was convicted under two counts of an indictment charging violation of the postal laws of the United States (section 217, Penal Code Comp. St. § 10387).

The first count charged that Kerr feloniously, and with intent to kill or injure Luella F. Kerr, did deposit or cause to be deposited in the United States mail for mailing and delivery by the Post Office Department, a quantity of poison commonly known as sodium cyanide, which was then and there contained in pieces of chocolate candy, the candy and sodium cyanide being in a box, addressed on the outside as follows: "From Mable and Blythe, 2037 Fig. St. Los Angeles. Luela F. Kerr, M. D. Fillmore, Calif.," contrary to the form of the statute and in violation of the postal laws and regulations. The second count charged that defendant caused to be delivered to Luella F. Kerr by the Post Office Department at Fillmore, Cal., a quantity of poison commonly known as sodium cyanide contained in pieces of chocolate candy, addressed as described in the first count.

The sufficiency of the indictment is questioned, but we believe it is valid under section 217 of the Penal Code, which makes it an offense for any one to deposit knowingly or cause to be deposited for mailing or delivery, or knowingly causes to be delivered by mail according to the direction thereon, anything declared by the section to be nonmailable, whether transmitted in accordance with the rules and regulations prescribed by the Postmaster General or not, with design or intent or purpose to kill or injure another. The things declared to be nonmailable are all kinds of poison and articles or compositions containing poisons which may kill or in any wise injure a person. Bruce v. United States, 202 F. 98, 120 C. C. A. 370, cited by plaintiff in error, is not in point. There defendant was charged with sending an article containing poison through the mails, the package not being addressed to or intended for a licensed physician or druggist, as prescribed and permitted by the rules promulgated by the Postmaster General. The Court of Appeals for the Eighth Circuit held that the indictment could not be sustained, because the regulation allowing such a package to be mailed to a licensed physician was beyond the power of the Postmaster General. The allegations of the indictment here involved, that the offenses charged were in violation of the postal regulations (section 460), are surplusage, and in its instructions to the jury the District Court properly defined the offenses charged in the language of section 217 of the Penal Code.

Defendant excepted to a ruling permitting Luella F. Kerr, wife of defendant, to testify in behalf of the government. By the common law a wife had a right to testify against her husband in a case of personal violence by the husband against her, and in our opinion the mailing of poisoned candy by a husband to his wife with intent to kill her constitutes such attempted personal violence against her as to make her a competent witness against him in respect to the act charged. Pappas v. U. S., 241 F. 665, 154 C. C. A. 423; Denning v. United States, 247 F. 463, 159 C. C. A. 517, L. R. A. 1918E, 487; Parker v. United States (C. C. A.) 3 F.(2d) 903.

Error is assigned to the admission in evidence of a typewriting machine owned by a brother-in-law of the defendant, who lived near defendant. The machine was in the house of the brother-in-law where Kerr often went and where he remained overnight shortly before the time of the commission of the offense charged. There was no direct testimony that Kerr used that particular machine to address the package sent to Mrs. Kerr, but an expert testified...