Litsinger v. United States

• Decision Date: 18 October 1930
• Docket Number: No. 4261.,4261.
• Citation: 44 F.2d 45
• Parties: LITSINGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

44 F.2d 45 (1930)

LITSINGER v. UNITED STATES.

No. 4261.

Circuit Court of Appeals, Seventh Circuit.

October 18, 1930.

Everett Jennings, of Chicago, Ill., for appellants.

George E. Q. Johnson, U. S. Atty., of Chicago, Ill., and Cassius Poust, Asst. U. S. Atty., of Sycamore, Ill.

Before EVANS, SPARKS, and PAGE, Circuit Judges.

SPARKS, Circuit Judge.

This is an appeal from a judgment of conviction upon an indictment against the appellants and five other persons. All but the appellants had either pleaded guilty or had been convicted.

The first count charges that the defendants who are named in the indictment unlawfully assaulted the postal clerk Peters, who was then and there in the possession of the United States mails upon this mail car, and unlawfully and feloniously robbed him of certain mail in the count described. In other words, it is charged that Peters, as the custodian of the United States mail, was robbed, and the count contains the additional averment that the robbery was made and committed with weapons, and that Peters' life was put in jeopardy by means of weapons, a dynamite bomb, machine guns, rifles, and shotguns.

The second count is substantially a charge of the same offense in slightly different language, descriptive of a charge of robbery committed by the use of weapons which were used in such a way as to put the life of Peters in danger.

The third count is a charge of a robbery of the same railway mail car by the same defendants at the same time and of the same mail, and is substantially the same charge as the first and second, except that there is eliminated therefrom the averment that guns and weapons were used.

The fourth count charges substantially the same offense as count No. 3.

Count 5 charges that the defendants stole and abstracted this certain mail from the United States mails.

The sixth count charges that they unlawfully had in their possession stolen mail, knowing that it had been stolen.

The seventh count charges that the defendants entered into a conspiracy to commit a robbery of the United States mails and to commit the offense alleged in the indictment in the prior counts.

The errors assigned and relied upon for a reversal of the judgment are:

First. There is no evidence to sustain the judgment against Litsinger.

Second. The court erred in calling Donovan as a court's witness after he had testified as a witness for the government; and in calling witnesses O'Brien and Meccia without any showing therefor by the government.

Third. The court erred in granting the government's motion to call the witnesses Meccia and O'Brien as court's witnesses, and in permitting the government to contradict and impeach them and the witness Donovan by testimony alleged to have been given by each of them at a trial of other defendants in this indictment and other alleged conversations with postal inspectors and others in contradiction of their testimony on this trial.

Fourth. As the offenses charged in the indictment are not dependent upon a particular disposition or motive, the court erred in allowing the government to examine its witnesses on offenses other than those charged in the indictment.

Fifth. The court erred in admitting in evidence Government's Exhibits 26 and 27, alleged photographs of Litsinger.

The witnesses Donovan, O'Brien, and Meccia were also defendants in the instant indictment and, long before the trial of appellants, had pleaded guilty, and at the time their testimony was given in this cause they were serving their sentences.

The testimony of these three witnesses supports fully and unquestionably the allegations of each count of the indictment. Neither of the appellants denies this. The same witnesses, however, emphatically denied that the Virgil Litsinger and John Flannery who participated with them in the robbery were the same Virgil Litsinger and John Flannery who were then being tried. If this were the only evidence introduced, a very serious question of identity would be presented; but other evidence was introduced which fully warranted the jury in finding that appellants were the same persons who participated in the robbery. The evidence shows that Litsinger, who participated in the crime, at times went by the name of Bill Collins, and that he had roomed and boarded for some time with Cleaver, another of the participants; that all the parties named in the indictment as defendants spent the entire night immediately preceding the robbery at Cleaver's home; that Mrs. Cleaver prepared breakfast for all the participants at 2 o'clock in the morning, and that at 4 o'clock a. m. they left the Cleaver home for the scene of the crime, which occurred...