Luteran v. United States, 10865-10869.

• Decision Date: 17 December 1937
• Docket Number: No. 10865-10869.,10865-10869.
• Citation: 93 F.2d 395
• Parties: LUTERAN v. UNITED STATES and four other cases.
• Court: U.S. Court of Appeals — Eighth Circuit

93 F.2d 395 (1937)

LUTERAN v. UNITED STATES and four other cases.^*

Nos. 10865-10869.

Circuit Court of Appeals, Eighth Circuit.

November 29, 1937.

Rehearing Denied December 17, 1937.

COPYRIGHT MATERIAL OMITTED

MERRILL E. OTIS, Judge.

John A. Luteran, Frank H. Adams, Lorne E. Wells, Joe R. Wells, Jr., and Leo B. Roach were convicted of conspiring to injure citizens by improperly counting their votes in a congressional election (18 F.Supp. 213), and they appeal.

Affirmed.

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

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

Before GARDNER, SANBORN, and THOMAS, Circuit Judge.

THOMAS, Circuit Judge.

This is the second of the so-called Kansas City, Mo., election cases to be tried in the District Court. The first case tried in this group of cases was Walker et al. v. United States (C.C.A.) 93 F.2d 383. The indictments in this and in the Walker Case are similar except as to the names of the defendants and the details of the overt acts.

The indictment in the present case is in two counts. It was submitted to the jury only upon the second count, which count charges conspiracy in violation of section 19 of the Criminal Code (18 U.S.C.A. § 51) to injure and oppress certain citizens of the 17th precinct of the 12th ward of Kansas City, Mo., by counting their votes at the November 3, 1936, general election not for the Republican candidate for Representative in Congress for whom they were cast, but for his Democratic opponent.

The defendants named in the indictment were John A. Luteran, Democratic precinct captain, who acted as challenger and watcher at the polling place; Leo B. Roach, a policeman stationed at the polling place on election day; and the following precinct election officials: Callie Clark, Democratic judge; Lorne E. Wells, Democratic judge; Frank H. Adams, Republican judge; Joe R. Wells, Jr., Democratic clerk; and Pearl Sperry, Republican clerk. At the commencement of the trial the defendants Callie Clark and Pearl Sperry changed their pleas from not guilty to nolo contendere. The other five defendants were convicted and are the appellants here.

Upon the trial of the case the appellants introduced no evidence in their own behalf. The government's testimony tended to show the following facts:

The voting place of the 17th precinct of the 12th ward was in the large display room of a monument company, in which were exhibited rows of stone monuments. A stove furnished heat for the room. At one side of the room were three offices used for business purposes, one of which, about 100 feet from where the voting took place, was furnished with a telephone and had a glass window in the partition separating it from the large display room.

The election officials arrived at the polling place at about 5:45 a. m. on election day with the election paraphernalia consisting of ballot boxes, poll books, ballots, tally sheets, and other essentials and arranged themselves about two tables just inside the door. The appellant Roach, a member of the police department, sat by the stove about 40 feet from the election officials.

The election proceeded without any unusual incident until about 2 o'clock in the afternoon. At that time appellant Luteran appeared with the key to the political ballot box, unlocked it, and with the assistance of appellant Lorne E. Wells dumped the ballots into a pasteboard carton. Later in the afternoon Luteran and two other men were seen in the back of the room with the box of ballots unfolding the ballots and laying them in piles. The box did not reappear until after the polls closed in the evening when appellant Roach was observed near the stove taking ballots out of the box, unfolding them and laying them in a pile.

The tally sheet, which shows the total vote for each candidate, was made out with the assistance of appellant Roach; and, at the direction of Luteran, was signed by all the officials about the middle of the afternoon. The ballots were not counted by the election officials.

After the polls had closed in the evening, Luteran said some one had called him on the telephone and said he could not be there and asked that a ballot be voted for him. Luteran thereupon put a ballot in the box. About 7:30 in the evening, a half hour after the polls closed, Luteran announced that he would have to have about 150 more votes. Over the protest of some of the officials, but with the assistance of others, about 150 names furnished by Luteran were written into the poll book and a like number of ballots put in the box.

The poll books, tally sheets, and ballots were introduced in evidence. Approximately 95 ballots showed that they had been changed from Republican ballots to Democratic ballots. This had been done by erasing the X under the Republican emblem on the ballot and entering an X in the Democratic circle. About 30 voters testified that they had cast straight Republican ballots. Their ballots were then identified by the serial number thereon and it was shown by an inspection of the ballots that they had been changed by the method described to Democratic ballots.

The official count reported by the election commissioners shows that 544 votes were cast in this precinct for the Democratic candidate for Congress and 35 for the Republican candidate. Had the changed ballots been counted as cast, the Republican candidate would have received approximately 130 votes.

Other details of the evidence will be referred to in connection with the alleged errors.

Five of the Kansas City election cases having been appealed to this court and submitted at the same time, an order was entered permitting counsel for all the parties and the government to file separate briefs covering questions common to all the appeals. All such common questions were considered and determined by this court in the Walker Case, supra, it being the first of the group of such cases to be tried and appealed. The decision of such common points in the Walker Case is controlling and will not be disturbed in this case.

In addition to the questions common to all these appeals the appellants assign as grounds for reversal in this case (1) the insufficiency of the evidence, (2) want of evidence to connect appellant Roach with the conspiracy, (3) admission of the testimony of grand jurors, (4) evidence of stuffing of the ballot box, (5) admission of certain testimony of witnesses Sperry, Clark, and Norstrom, (6) the charge to the jury, and (7) denial of a motion to set the order of cases for trial.

The contention that the evidence of intent to injure citizens is not sufficient to support the verdict cannot be sustained. Upon similar facts the same argument was made in the Walker Case, supra. That decision is controlling here.

Similarly the claims (1) that the testimony of grand jurors was not admissible, (2) that evidence of stuffing the ballot box was not admissible, and (3) that the court erred in denying the motion to set the order of cases for trial were raised, argued, and disposed of in the Walker Case, supra. The record is substantially the same in this case and in the Walker Case upon these points. We held in the Walker Case that all these contentions were without merit, and so do we here.

There remain for consideration the alleged errors peculiar to this case alone. The first of these is that there is not sufficient evidence to sustain the conviction of appellant Roach. It is argued in his behalf that the evidence relating to him is as consistent with innocence as with guilt, and hence is insufficient to sustain the conviction. The contention is that since he was only a policeman stationed at the polling place he had no other official duty than to prevent a breach of the peace; that the fact that the conduct of the election officials in his presence was dishonest cannot be attributed to him, even though he might have been able to interfere and defeat the object of the conspiracy if he had been inclined to do so. It is pointed out that there is no evidence that any acts of violence were committed in his presence or that he refused to help any one who requested his aid, or that he assisted the conspirators by means of any neglect of his duties as a city policeman.

This court has recognized for practical reasons that where proof of a conspiracy has been established a relatively slight amount of evidence connecting the defendant therewith is sufficient to sustain a verdict. McDonald v. United States, 89 F.2d 128 (C.C.A.8); Galatas v. United States, 80 F.2d 15 (C.C.A.8). Participation in the formation of the conspiracy is not essential to culpability if after it was formed the defendant aided or abetted it with an understanding of its purpose. McDonald v. United States, supra; Laska v. United States, 82 F.2d 672 (C.C.A.10); Burkhardt v. United States, 13 F.2d 841 (C.C.A.6). The evidence must disclose something further than participation in the offense which is the object of the conspiracy at some stage of its execution, for there must be proof of an unlawful agreement either express or implied. Dickerson v. United States, 18 F.2d 887 (C.C.A.8); Linde v. United States, 13 F.2d 59 (C.C.A.8); Burkhardt v. United States, supra. But where the defendant aided the conspirators knowing in a general way their purpose to break the law the jury may infer that he entered into an express or implied agreement with them. Galatas v. United States, supra; McDonald v. United States, supra.

The testimony respecting appellant Roach and upon which the government bases its claim that he was a member of the conspiracy is briefly as follows: Mrs. Johnson,...