Larrison v. United States, 3960.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation24 F.2d 82
Docket NumberNo. 3960.,3960.
Decision Date07 January 1928

D. H. Mudge, of Edwardsville, Ill., and A. M. Fitzgerald, of Springfield, Ill., for plaintiffs in error.

Walter M. Provine, of Springfield, Ill., for the United States.

Before EVANS, PAGE, and ANDERSON, Circuit Judges.

EVAN A. EVANS, Circuit Judge.

This prosecution grew out of a post office burglary at Alton, Illinois, May 12, 1924. Defendants were charged, in an indictment containing eight counts, with feloniously breaking into a post office with intent to commit larceny, with intent to steal postage stamps, and moneys, and property of the United States, with intent to damage and destroy certain doors, safes, and vaults in the post office, with having stolen thirty-three thousand eight hundred sixty-eight dollars and sixty-nine cents ($33,868.69) in stamps and money et cetera. They were convicted on three counts. Each was sentenced to serve a term in the penitentiary.

They here insist that the evidence is insufficient to sustain the conviction. Other assignments of error are presented, but they are not seriously urged.

They also present certain affidavits upon which they predicate a motion for leave to return the record to the District Court that they might move that court to set aside the verdict and grant a new trial because of the newly discovered evidence set forth in the affidavits.

Inasmuch as the contention that the evidence is insufficient to support the verdict is based upon the weakness of the testimony of an accomplice named Merrill, and inasmuch as the affidavit upon which the motion to return the record is based is one wherein Merrill disputes his oral testimony, it becomes necessary to set forth the evidence rather elaborately.

On May 12, 1924, the United States post office at Alton, Illinois, was burglarized and $33,868.69 in stamps and money taken from the safe. The safe was blown open by placing soap around the door and pouring in nitro-glycerine. The acetylene tank, the claw-bar and the tamping pick were left in the post office. The burglary occurred about 2 a. m., Monday morning.

Defendants resided in the vicinity of Alton or had so resided for years back. They were all well acquainted, and had been for years.

Defendant Larrison was 35 years old and had operated a soft drink parlor known as the Cadillac Bar. His place of business had been closed upon the motion of the government due to violations of the National Prohibition Act.

Defendant "Jackie" Adams was a professional safe blower residing near Chicago. He hailed from Alton. He did not testify.

Defendant Joseph Melling did not testify.

Defendant Robert Dooling was an ex-soldier who suffered disabilities during the war and received disability insurance. He testified and denied his guilt.

Defendant Joseph Marino in the summer of 1924 conducted a pool room. In 1924 he was indicted for murder.

Defendant Joseph Meyer was a saloon keeper and, after the prohibition amendment became effective, conducted a so-called soft drink parlor which was closed by order of the court upon complaint of the government. Thereafter he was in the automobile, tire, and accessory business and "ran a blind pig."

Benjamin Simon's occupation at the time of the burglary was not given, but previously he had worked as hod carrier, boiler maker's helper, had been a bar tender and was a soldier in the late war.

The two principal witnesses for the government admitted the existence of penitentiary records. One was James Kirby, who stated that he had completed three penitentiary sentences, one in California and two at Leavenworth. He was under a fourth sentence and serving his time in the Federal Penitentiary when he testified in this case. He stated that while being taken to the penitentiary the last time he jumped from the moving train and escaped. He shortly thereafter appeared at Alton. By profession he was a safe blower. He went to the Cadillac Bar, where Larrison invited him to join the party that was about to burglarize the post office. He was told that they were looking for a "Pete" man, meaning a safe blower, and he promptly accepted the invitation.

Shortly thereafter Kirby went with Merrill (alias Sturm) to the post office to look over the ground and examine the safe. A few days thereafter he was captured by the federal authorities and taken to the penitentiary. His guilty participation in the burglary came to an end.

George Merrill (alias George Sturm) was the other accomplice who testified at length upon both trials. He likewise made certain affidavits — one for the defendants upon which they ask that the record be returned to the District Court; the others for the government wherein he states he was induced for a money consideration to make the affidavit for defendants which in his two later affidavits he says was false.

Merrill is by occupation a thief; his residence for about 10 years prior to the trial, the various jails. He could not remember all the jails he had dwelt in. While stealing was his occupation and the jail his abode, he boasted of having engaged in other criminal transactions. He testified that he accompanied Kirby to the post office to view the safe and to study the lay of the ground.

After Kirby was captured and taken to the penitentiary, the plans for the burglary were stayed while the parties searched for a new "Pete" man. Defendant "Jackie" Adams was finally selected and Simon and Merrill interviewed him. He hesitated at first, saying "he did not want to fool around with any small stuff."

The next night, however, he appeared at the Cadillac Bar and joined in the enterprise. Defendants Merrill, Meyer, Dooling, Larrison, Marino and Simon were all present at this meeting. Melling arrived a little later. The plans were discussed and matured.

Merrill further testified that all expected the safe would produce a large sum of money ($90,000) — a pay roll shipment of money believed to be in the post office safe at the hour chosen.

On the evening chosen, the parties assembled. Melling furnished the car. Merrill was one of the outside watches — Simon, Larrison and Adams entered the post office. Dooling acted as another outside guard. About 2:35 the parties came out of the post office and the car was driven to Marino's and the stamps were "dumped" on the table, the amount being over $35,000. A short time thereafter some of stamps were sold by Larrison, who divided $5,000, $200 being paid to Meyer, and $800 being paid to all of the others, except Marino, who refused his share.

Defendants offered little or no testimony outside of their own statements. No character witnesses were offered by any of them. Several of them did not take the witness stand.

In corroboration of Merrill's testimony it appeared that a witness, March, testified that he was in the automobile business; that about ten days after the burglary Larrison sold him an acetylene torch; and witness sold it to a garage man by the name of Gerson. Subsequent to the indictment, defendant Meyer went to March and asked him if he had bought a torch from Larrison. March replied that he did not care to discuss the matter. A couple of weeks later, defendants Meyer and Marino sought March and asked what became of the torch that he had bought of Larrison. March replied that he did not care to discuss the matter, whereupon Meyer said, "You ____ you, are just as guilty of this as I am." Gerson testified that the torch offered in evidence was the one he bought from March. The torch was such a one as was used in blowing the safe.

Turley, another witness, testified to a conversation with "Jackie" Adams while both were in the Peoria jail. Adams was asked about the "rap" (the burglary) and Merrill's "stooling" (confessing). He said, "It was a good `rap,' but why should a man take a good `rap' on account of Merrill's `stooling.'"

Merrill in his cross-examination was confronted by a check for $1,200, payable to him and drawn by one Fishman. He stated, "That was a check for some `hot diamonds' that Bob Dooling and Benny Simon had. The check was made payable to me because Simon was afraid to have it made out in such a large amount to him. It might cause suspicion going through the bank." This statement was disputed by Simon, who stated that Merrill told him the check was for some moonshine liquor which Merrill had delivered to a man; that he (Simon) had furnished a car for Merrill to go to Springfield to get the money, for which Merrill had agreed to pay him $50. He said his intimate association with Merrill arose out of his efforts to help Merrill collect this money.

Kirby's testimony was corroborated in a minor matter, which was, however, significant. He described his actions during the days following his escape from the United States marshal and while he was helping to plan the post office robbery. He said he always looked in the window before entering a building. One night, shortly before the burglary as planned, he looked in the window of a road house and saw two government officials — one the deputy marshal and the other a government investigator whom he knew. He withdrew. The deputy marshal testified that he and the government agent were at the road house on the night so fixed and in search of Kirby.

Upon the first trial, the jury disagreed. On the second trial, defendants' counsel examined both Merrill and Kirby freely. Such contradictions as occurred in the testimony of either witness were, on the whole, limited to unimportant matters.

When the case was presented to this court, defendants presented an affidavit of Merrill. In view of its importance, it is herewith reproduced.1

The government was given a short time to meet this affidavit. It produced two affidavits by Merrill also herewith reproduced.2

The recantation of Merrill and his subsequent repudiation of this recantation brought forth numerous other affidavits from the defendants as well as...

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