Klose v. United States

• Decision Date: 24 April 1931
• Docket Number: 8890.,8888,No. 8884,8884
• Citation: 49 F.2d 177
• Parties: KLOSE v. UNITED STATES. LORENZ v. SAME. STACK v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

49 F.2d 177 (1931)

KLOSE v. UNITED STATES.

LORENZ v. SAME.

STACK v. SAME.

Nos. 8884, 8888, 8890.

Circuit Court of Appeals, Eighth Circuit.

March 21, 1931.

Rehearing Denied April 24, 1931.

E. J. Brennan, of St. Louis, Mo., for appellant Klose.

William E. G. Watson and J. A. Mansfield, both of Minneapolis, Minn., for appellant Lorenz.

Lewis L. Drill, U. S. Atty., of St. Paul, Minn., and Lafayette French, Jr., Sp. Asst. to U. S. Atty., of Austin, Minn., for the United States.

Before STONE and GARDNER, Circuit Judges, and WOODROUGH, District Judge.

GARDNER, Circuit Judge.

Appellants will be designated herein as defendants. They were jointly indicted with certain others, for violations of sections 215 and 37 of the Criminal Code, 18 USCA §§ 338 and 88, in an indictment containing twenty-three counts. They, with other named defendants, were charged with having devised a scheme to obtain money and property by false pretenses in connection with the sale of stocks, bonds, and notes of the Volkszeitung Printing & Publishing Company, the Hardstone Brick Company of Duluth, Inc., and the Hardstone Brick Company of Little Falls, Inc., and that in carrying out such scheme the mails of the United States were used. The indictment is not challenged by either of the defendants, and it is stipulated in the record that, for the purpose of the appeals, it is admitted that the evidence was sufficient to prove beyond a reasonable doubt the device of a scheme to obtain money by false and fraudulent pretenses, as alleged in the indictment. While the defendants were tried together, each has prosecuted a separate appeal. The appeal perfected by the defendant William R. Stack was not followed by the filing of any brief, nor the presentation of any oral argument in this court and is deemed abandoned, and for that reason it is dismissed and will be given no further consideration. The defendant Klose, on his appeal, urges that: (1) It was error to deny his motion for change of judges; (2) that it was error to deny his motion for a mistrial, because of the prejudicial remarks of the assistant United States attorney and of misconduct of third persons with reference to the jury; (3) that the evidence is insufficient to establish beyond a reasonable doubt that he knew, or had reason to believe, that a scheme to defraud had been devised or that he participated in the furtherance of such scheme; (4) that the verdict was the result of passion and prejudice. The defendant Lorenz urges only error in the denial of his motion for a mistrial.

The indictment here involved is the same as that referred to in the opinion of the court in Cochran v. United States (C. C. A.) 41 F.(2d) 193. These defendants were not then tried, for reasons which are not clearly disclosed by the record. The defendant Lorenz was one of those who the government claims originally devised the scheme to obtain money by false pretenses, while the defendant Klose was a salesman who, it is claimed, with knowledge of the scheme, made or participated in the making of representations in the sales of stocks, bonds, and notes in furtherance of the scheme to obtain money by means of false and fraudulent representations. It having been stipulated in this case that the evidence satisfactorily established the fact that the defendants Cochran and Lorenz had devised a fraudulent scheme to obtain money by false pretenses, as charged in the indictment, it will not be necessary to review the evidence as to that issue, further than to say that it was substantially the same as that reviewed by this court in Cochran v. United States, supra, and the history of the case is there sufficiently set out.

The defendant Klose assigns error in denying his motion for a change of judges. This motion, not having been filed until the day the trial opened, was not timely presented, nor was it sustained by any affidavit showing facts or reasons for the belief expressed that the trial judge was biased or prejudiced; neither was it supported by a certificate of counsel that the application was made in good faith. Under the authorities the application was, therefore, fatally defective. Ex parte N. K. Fairbank Co. (D. C.) 194 F. 978; Henry v. Speer (C. C. A.) 201 F. 869; Berger v. United States, 255 U. S. 22, 41 S. Ct. 230, 65 L. Ed. 481; Lewis v. United States (C. C. A.) 14 F.(2d) 369; Nations v. United States (C. C. A.) 14 F. (2d) 507; Lipscomb v. United States (C. C. A.) 33 F.(2d) 33; Cuddy v. Otis (C. C. A.) 33 F.(2d) 577; Rossi v. United States (C. C. A.) 16 F.(2d) 712.

Toward the end of the trial in this case, which consumed some six or seven weeks, in the course of the direct examination of a witness for the defense, the following incident occurred: Paul Olson, a witness called on behalf of the defendants, was interrogated as follows:

"By Mr. Quinn (appearing for defendant Klose):

"My name is Paul Olson. I live in Minneapolis at 4510 Arden Avenue, South. My business is real estate. I was one of the defendants here in this indictment who was tried at a former trial.

"Q. Then was found not guilty by that jury?

"Mr. Anderson: I object to that as incompetent unless you want to show there were ten found guilty.

"The Court: It may be stricken.

"Mr. Watson: As to the defendant Lorenz I object to the remark.

"The Court: Both of the remarks may be stricken as to what happened in the former trial.

"Mr. Watson: It reflects on the credibility of the witness.

"The Court: There is no presumption of guilt.

"Mr. Quinn: I will withdraw the question and not urge it further if the court thinks it improper.

"Mr. Watson: I wish the record to show as to the defendant Lorenz, we ask the court to give more specific instructions as to the remark of Mr. Anderson regarding the guilt or innocence of the other defendants — regarding the prejudice of that remark on the defendant Lorenz.

"The Court: You may have an exception. The court does not wish to give any further instructions at this time."

In its charge to the jury, the court instructed as follows: "The only defendants here on trial are Arthur Lorenz, William R. Stack, and O. W. Klose and the only question before you is the question of the guilt or innocence of each of these defendants of the crimes charged. You have no concern with what has happened to the other defendants in this case. If any of you happen to know or think you know, the results of the former trial, you are to put those matters entirely out of your minds for they have nothing whatever to do with this case. Nor has the fact that any defendant pleaded guilty at the commencement of this trial any bearing on the issues in this case, and it must not be considered or discussed by you in reaching a verdict."

No exception was taken to these instructions, nor were any additional or other instructions requested on this subject. The defendant Lorenz does not urge this as error, but it is urged on behalf of the defendant Klose. As to him, it is observed that his counsel withdrew the question, took no exception, and said he would not urge the matter further. It is also to be observed that this was not assigned as error by counsel who tried the case, but was brought into the record on motion of the present counsel for the defendant Klose, on motion for leave to file in this court additional assignments of error. It is therefore doubtful whether the matter is preserved in the record or properly before this court. It was the defendant Klose who brought out the fact that the witness had been tried under this indictment at a former trial. This, as counsel must have known, was not material. Having himself brought the matter out, he then sought to show that the witness had been acquitted. It is argued that this defendant was entitled to have his witness rehabilitated. If he had been in any manner discredited, it was the defendant Klose who did so, and apparently the only purpose of so doing was to enable him to get before the jury the fact that others indicted and tried on the charges involved had been acquitted. As the suggestion made by the assistant United States district attorney was to the effect that others had been convicted, it is difficult to see how this could possibly have been prejudicial; in fact, it would seem rather to have tended to rehabilitate the witness than otherwise. In any event, the defendant Klose, having himself brought this matter into the record, is not in position to allege error. There was no secret about the proceedings that had been had in this rather notorious case. The first trial had lasted some seven weeks. It was tried in a metropolitan city publishing many newspapers, and it involved a large number of defendants. The result of the first trial was a matter of public record, and it was a matter of common knowledge. It is not perceived how it could possibly have injured this defendant that the jury should have known that certain other defendants had been found guilty; in fact, the defendant Klose does not contend in this court that others were not guilty of the offense, but contends only that he was without guilty knowledge and that he acted in good faith. As was said by this court in Stewart v. United States, 211 F. 41, 48: "Under such circumstances, we do not think the court would be justified in holding that the fact disclosed by the District Attorney, presumptively already known to the jury, although involving a grave impropriety, was such as to necessarily work prejudicial harm to the defendant's cause."

As before observed, the matter sought to be elicited by counsel for defendant was not a material nor an issuable fact. If it had been, then proof might have been submitted as to how many of the defendants had been acquitted on the other trial, and if that were material, then, confessedly, the government should have been permitted to prove how many had been convicted, so that there was some provocation for the remark of the assistant United States district attorney, and...