Kirk v. United States

• Decision Date: 04 December 1911
• Docket Number: 1,975.
• Citation: 192 F. 273
• Parties: KIRK et al. v. UNITED STATES ex rel. TODD, U.S. Atty.
• Court: U.S. Court of Appeals — Ninth Circuit

192 F. 273

KIRK et al. v. UNITED STATES ex rel. TODD, U.S. Atty.

No. 1,975.

United States Court of Appeals, Ninth Circuit.

December 4, 1911

On January 23, 1911, the United States attorney for the Western District of Washington, by petition, informed the United States District Court of that district that the plaintiffs in error had between January 16 and January 23, 1911, approached members of the venire of jurors then in attendance upon said court in the interest of one C. D. Hillman, who had been indicted for violation of statutes of the United States, and whose trial was set before that court for January 31, 1911 with the intent corruptly to influence said members of the venire in behalf of said Hillman, and with the promise and suggestion that they would be paid money in case they should be in favor of the said Hillman. Upon that petition the plaintiffs in error were, upon a hearing before the said District Court, adjudged guilty of contempt, and sentenced to imprisonment. In its judgment, the court found the facts as follows: 'That heretofore, to wit, between the 1st and 23d day of January, 1911, the defendants E. D. Kirk and M. J Webb were engaged in a conspiracy and plot to corrupt the jurors of this court in connection with the trial of the case of the United States of America vs. Clarence Dayton Hillman which is now pending in this court and set for trial for January 31, 1911; that Charles McCoy, who is a member of said venire, was approached between the 1st and 23d day of January, 1911, by two persons unknown for the purpose of offering him money to influence his action in said cause if he were chosen as a trial juror; that Robert C. Van Horn, a member of said venire, was corruptly approached between the two dates last aforesaid by said E. D. Kirk and M. J. Webb for the purpose of influencing his action in the event he should be chosen as a trial juror in said cause, and that promises of money were made to him by said Kirk if he should be favorable to the defendant, and that said Webb counseled the making of said promises by said Kirk and aided said Kirk in making the same; that said defendants E. D. Kirk and M. J Webb between the two dates last aforesaid employed one W. H. tyng to get into communication with other members of the venire for the purpose of ascertaining whether they could be approached with offers of bribes or not. The court finds the testimony of said witnesses McCoy, Van Horn, and Tyng to be true, and that the misbehavior of the said E. D. Kirk and M. J. Webb took place in the city of Seattle with the knowledge on their part that said men so approached and to be approached were members of the venire now in attendance upon this court, and that from said venire the trial jury in the case of United States vs. Clarence Dayton Hillman would be drawn, and with the intent on the part of the said E. D. kirk and M. J. Webb corruptly to influence the verdict in said cause, and that said misbehavior of the said E. D. Kirk and M. J. Webb occurred in the city of Seattle and so near to the presence of this court as to obstruct the administration of justice in this court, and that said acts of said defendants constitute contempt of this court;" and further found that the place where the juror Robert C. Van Horn was corruptly approached by the plaintiffs in error with suggestions of the payment of money for the purpose of influencing his action in the event that he should be chosen as trial juror in the case of The United States against Hillman was distant from the United States Federal Court Building, about 9 blocks, said blocks averaging 300 feet each.

Longfellow & Fitzpatrick and Dudley G. Wooten, for plaintiffs in error.

Elmer E. Todd, U.S. Atty., pro se.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

We find no merit in the contention that the evidence was not sufficient to justify the judgment of the District Court, who heard the testimony of the witnesses and examined the exhibits which were introduced in evidence. The plaintiffs in error were detectives operating what was known as the 'Kirk Detective Agency,' the office of which was situated within one block of the United States courthouse. About the middle of January, 1911, they were employed by C. D. Hillman, against whom the trial of six indictments was then pending in the United States District Court for the Western District of Washington. The cases had been set for trial for January 31, 1911. They were the only criminal cases set for trial in that court prior to March 28, 1911. There was evidence that the plaintiffs in error employed one W. H. Tyng to go about and get acquainted with certain jurors whose names were on a list which they gave him of members of the venire then in attendance upon the court, and from which the jury was to be selected in the trial of the cases against Hillman. Tyng testified that his instructions from one of the plaintiffs in error were to 'get jurymen.' 'He told me, if I went around and got any jurymen, he would give me $100 first, and then he said $50 a few days afterwards. * * * I was to get them and bring them to the office if I could handle them in any way, shape, or manner. ' And he testified that the plaintiffs in error told him that they had another man employed on the same kind of business. C. B. McCoy, one of the veniremen, testified that he had been approached by two men with reference to the Hillman Case about January 18 or 19, 1911; that they wished to know if a few hundred dollars would influence him to land the jury, but that the men were not the plaintiffs in error, and were unknown to him; and that afterwards a man who gave his name as Miller called him up by telephone, stating that he wished to talk the case over with him. Robert C. Van Horn, who was one of the jurors on the panel, testified that he was first approached by telephone by one who gave his name as Kling, who stated that he wished to see him about a matter of much interest, in which there would be several hundred dollars, and that he made an appointment to meet Kling the next day at O'Brien's saloon; that he met Kling, and that Kling then made an appointment with him to meet other people at Hyde's saloon at half past 4 on the following day; that he met Kling at that saloon, according to appointment, but the others did not appear; that then Kling gave him a card with a telephone number on it, and asked him to call up Mr. Webb. The telephone number given was the telephone number of the Kirk Detective Agency. Van Horn then testified that he called up Webb, who stated that he would meet him at a quarter of 6, and said: 'I have a friend here who wants to meet you, a Mr. Kirk. ' At the time appointed Van Horn testified that he returned to the saloon, and that Kling then introduced him to Webb, and that Webb, in turn, introduced him to Kirk; that Kirk seemed to be under the impression that he was going to meet an old friend of his, a Robert Van Horn of Kansas City.

The witness testified:

'Finally I mentioned to him that it was strange if he wanted to renew an acquaintance with an old friend that he should have gone about it in such a roundabout manner, and in such a peculiar way of renewing an old friendship. He said, 'Well, it was;' but there was another matter, since I resembled his old friend so much, and for various reasons that didn't appear to be relevant he would be glad to take up with me another matter that came to his mind just at that minute, if I was in a receptive condition.'

That Kirk took him aside, and said there was a matter pending in the federal courts that he was interested in. That the sum and substance of it was that a friend of his was going to be brought into court on a criminal charge, and that they wished very much to hang the jury in the case.

'He put it to me something like this: 'We don't want to give you some money simply to buy your opinion on a case, but we just want to know if you have an opinion a certain way, and if it is very favorable to us, and you will give us to understand that you would still keep that opinion on a jury, and would hang the jury, it would be worth your while."

The witness detailed the conversation at some length, and said that Kirk told him it would be worth $100; and he testified:

'He said the case was set for trial within two weeks, and I asked him if that was the Hillman case. Q. What did you say? A. I asked him if it was the Hillman Case set for March 28th, and I understood that the Hillman Case was set for March 28th, and I asked if it was the Hillman Case set for March 28th, and he said, 'No;' it was within two weeks.'

As a matter of fact the Hillman Case was set for trial within two weeks from the date of the conversation, and it elsewhere appears how Van Horn obtained the impression that the case was set for March 28th. The plaintiffs in error testified denying the incriminating portions of the testimony of Van Horn, but admitted that they had the appointment to meet him at the O'Brien saloon, and that they did meet him at the Hyde saloon in the manner in which he testified. They testified that Van Horn said he did not want to sit on that jury, and that, when Kirk asked him what jury he was talking about, he said the Hillman jury. That Kirk then said 'Goodnight. I don't want to talk to you if you are on the Hillman jury;' and that Van Horn said that he wanted $100 cash now, and $150 when the case was over. ...