Little v. United States

Citation93 F.2d 401
Decision Date17 December 1937
Docket NumberNo. 10886-10889.,10886-10889.
PartiesLITTLE v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

COPYRIGHT MATERIAL OMITTED

William G. Boatright, of Kansas City, Mo. (I. J. Ringolsky, Harry L. Jacobs, Ludwick Graves, James Daleo, Ringolsky, Boatright & Jacobs, and Johnson, Lucas, Landon, Graves & Fane, all of Kansas City, Mo., on the brief), for appellants.

Thomas A. Costolow, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., and Randall Wilson, Richard K. Phelps, and Sam C. Blair, Asst. U. S. Attys., all of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is the third of the Kansas City, Mo., election cases tried and appealed. The first was that of Walker et al. v. United States (C.C.A.) 93 F.2d 383 (Nos. 10863-4), and the second was that of Luteran et al. v. United States (C.C.A.) 93 F.2d 395 (Nos. 10865-9). The appeals in both these cases have been determined by this court and the opinions have been filed.

In the instant case the indictment is in two counts. The first count charges a conspiracy in violation of section 19 of the Criminal Code (title 18 U.S.C.A. § 51) to injure and oppress citizens in their right to vote and to have their votes counted as cast for presidential electors for the state of Missouri. The second count is similar to the first except that it refers to votes cast for candidates for the office of Representative in Congress.

The offense is charged to have been committed at the November 3, 1936, general election in the 19th precinct of the 12th ward in Kansas City, Mo.

Eight defendants were named in the indictment. They were John T. Little, a Democratic precinct election judge; Alice M. Froeschl, a Democratic election judge; James E. Maxey, a Republican election judge; Lena T. Green, a Republican election judge; Forest C. Holman, a Democratic clerk; Ruth Hogendorn, a Republican clerk; Joseph Hobdy and Gilbert Stevens, Democratic precinct captains. At the commencement of the trial Lena T. Green and Ruth Hogendorn withdrew their pleas of not guilty and entered pleas of nolo contendere, and at the conclusion of the trial they were placed on probation for one year without sentence. The other six defendants stood trial and were each found guilty on both counts of the indictment. The defendants Froeschl and Hobdy were sentenced on each count to serve three months in jail and to pay a fine of $12.50; and they were likewise placed on probation. The following sentences of imprisonment and fines were imposed upon the other four defendants: Stevens, three years and $12.50 on each count; Little, two years and $12.50 on each count; Maxey, two years and $12.50 on each count; and Holman, one year and one day and $12.50 on each count. The sentences to serve in prison were all to run concurrently. From the judgments so entered, Little, Stevens, Maxey, and Holman took separate appeals, all of which appeals, by order of court, have been submitted together.

The evidence at the trial discloses that the polling place of the 19th precinct of the 12th ward was in the study room of a church called "The Church of God." The room was about 50 feet long and 15 to 18 feet wide. The tables used by the election officials were about the center of the room. There were chairs for everyone. A pulpit stood in the east end of the room about 10 feet from the wall and about the same distance from the tables. From a vestibule at the outside entrance steps led to the basement of the building. There was another room about the center of the building in the basement. To reach the basement room from the election room one passed down a hall and through a boiler room and kitchen.

In addition to the defendants, there were present at the polling place most of election day Thomas H. Cummins, a Republican precinct captain, and Mrs. Helen Hayworth, a Republican worker.

Upon the opening of the polls appellant Stevens directed the arrangement of the election officials and the election paraphernalia. Shortly thereafter Stevens and Cummins had a conversation in the vestibule at the front entrance in which Stevens showed Cummins a piece of paper with the names of the candidates on it and a statement of the number of votes to be credited to each candidate at the end of the day. It showed that the Republican candidates were to receive only 24 votes each. Cummins protested and told Stevens that he did not like the way it was being carried out and that if that were done there would be trouble. Stevens replied: "Well, if you have any objections, why, there have been people known to be taken for a ride for objecting to such things as that."

During the day appellant Little took ballots out of the ballot box, put them in his inside coat pocket and later gave them to Stevens, who took them into the basement room, changed them, brought them back to Little, and they were put back into the ballot box without protest from the election officials. The changes were made by erasing the crosses under the Republican emblem and marking crosses under the Democratic emblem. Changing ballots in the basement room was observed going on several times during the day. Stevens, Little, and Hobdy were engaged in this work. A man of dark complexion, not an official, assisted in changing ballots and returning them to the ballot box occasionally.

Unvoted ballots, which were supplied to the polling place in pads, were detached from the pad at several different times during the day and taken to the basement room where the changing of ballots was carried on.

The appellant Stevens had the tally sheets back of the pulpit about 8 o'clock in the morning and had a conversation with Holman and Cummins about them. Under the direction of Stevens, Holman and Cummins proceeded to mark them in accordance with the numbers to be accredited to each candidate as shown on the paper to which Stevens had called the attention of Cummins earlier in the morning.

During the day the election officials wrote many more names in the poll books than the number of people who actually voted. Names were properly written in such books only as voters presented themselves and voted. The added names written in were taken by the officials from cards furnished by Stevens.

The government called about fifty voters who testified that they voted straight Republican ballots, making no erasures or alterations on their ballots whatever.

After the polls closed, the ballots were removed from the ballot box and straightened out, but not counted. All the officials signed the various papers required to be filled out and signed by the election laws of Missouri. Among other things, they certified that they had counted the ballots and that the numbers accredited to each candidate were true and correct. Their returns showed that 26 votes were credited to the Republican candidates for presidential electors and the Republican candidate for representative in Congress and 480 for the opposing Democratic candidates.

Motions for directed verdicts, to require the government to elect on which count of the indictment it would go to the jury and for a mistrial based upon the examination of witnesses were filed by each of the appellants and overruled by the court.

As already indicated, this case is one of a group of five Kansas City election cases appealed to this court and submitted at the same term, and in which there were four common assignments of error. With the approval of the court counsel for both parties filed separate briefs covering the four questions common to all the cases. These questions were considered by the court and determined in connection with the first case appealed, namely Nos. 10,863 and 10,864, Walker et al. v. United States. The decision upon all four of such questions was adverse to the contentions of the appellants, and that decision is controlling here.

In all these election cases the indictments are identical in form and substantially so in substance. There is also a striking resemblance in the facts in evidence and in the alleged errors in the several cases. The second appeal already decided by this court was that of Luteran et al. v. United States, Nos. 10,865-9. In addition to the four questions referred to supra common to the whole group of election cases there are certain others common to the Walker and Luteran Cases which are repeated in this case. They are: (1) The insufficiency of the evidence, (2) the admission of the testimony of grand jurors, (3) evidence of stuffing the ballot box, and (4) receiving nolo contendere pleas in the presence of the jury. Another, the admission of interviews of government agents with appellants after the indictments were returned and before the trial, was decided in the Luteran Case. The legal questions involved in all these assignments of error are the same. They have all been determined in the Walker and Luteran Cases and no useful purpose would be served in repeating the discussions here. They are all decided contrary to the claims of the appellants, with one exception hereafter to be noted.

There are other specifications of error, however, which are peculiar to the instant case, and which require our consideration. They are: (1) Refusal of the court to require the witness Martin, a government investigator, to exhibit his notes of interviews with appellants, such notes having been used by him to refresh his memory when on the witness stand; (2) refusal to require the government to produce written statements made by the witness Hogendorn and referred to in her testimony; (3) admission of testimony concerning X marks made by voters; (4) admission of evidence of fingerprints of appellants; (5) cross-examination of appellant Maxey; (6) cross-examination of character witness Huselton; (7) cross-examination of the witness Froeschl; (8) errors in charging the jury; and (9) denial of ap...

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