Matthews v. United States

• Citation: 192 F. 490
• Decision Date: 21 November 1911
• Docket Number: 3,423,3,424.
• Parties: MATTHEWS v. UNITED STATES. SHELTON v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

192 F. 490

MATTHEWS v. UNITED STATES.

SHELTON v. SAME.

Nos. 3,423, 3,424.

United States Court of Appeals, Eighth Circuit.

November 21, 1911

Harry B. Fleharty, for plaintiff in error Matthews.

W. F Gurley (Gurley & Woodrough, on the brief), for plaintiff in error Shelton.

A. W Lane, Asst. U.S. Atty. (F. S. Howell, U.S. Atty., on the brief), for the United States.

Before SANBORN and HOOK, Circuit Judges, and W. H. MUNGER, District judge.

HOOK Circuit Judge.

Between 11 and 12 o'clock of the night of May 22, 1909, an east-bound train on the Union Pacific Railroad known as the 'Overland Limited No. 2,' carrying United States mail, was stopped in the outskirts of Omaha, Neb., at a place known as Mud Cut, by masked highwaymen. The trainmen and postal clerks were put in fear of their lives by threats and display and discharge of firearms. The highwaymen compelled the opening of the mail car, and took and carried away seven pouches and sacks containing valuable registered mail. Section 5472, Rev. Stats. (U.S. Comp. St. 1901, p. 3694) provides that any one who robs a carrier, agent, or other person intrusted with the mail, of such mail, and in effecting the robbery wounds the custodian or puts his life in jeopardy by the use of dangerous weapons, shall be punished by imprisonment at hard labor for the term of his natural life. Five men were apprehended, jointly indicted tried and convicted of robbery of the mails as above defined in the statute and each was accordingly sentenced. Omitting mention of various aliases the men were Donald W. Woods, Fred Torgenson, Frank Grigware, Jack Shelton, and William Matthews. Shelton and Matthews prosecuted these writs of error. Each says the evidence was not sufficient in law for his conviction. No other question is presented.

It is contended by Shelton and Matthews that the evidence showed conclusively that but four men participated in the robbery, and since five were convicted that there must necessarily have been a miscarriage of justice. Supplementing this, it is urged that three of them, Woods, Torgenson, and Grigware, were fully identified, but that the evidence was insufficient to identify Shelton or Matthews as the fourth, or indeed, aside from the precise number engaged, to prove either of them guilty of the crime. It may be said at the outset that it was shown by overwhelming proof that Woods, Torgenson, and Grigware took leading parts in the robbery. The evidence as to Shelton and Matthews was not so direct and positive, but was in general of a more circumstantial character. Only that which tends to show their participation in the crime and that which is explanatory or helps to a better understanding of it need be reviewed here.

The train robbery was committed Saturday night, May 22, 1909. In January of that year and previously, Woods, Torgenson, Grigware, and Shelton were acquaintances if not associates in Spokane, Wash. Shelton had known Grigware a good many years. Matthews had lived in Buhl, Idaho. Early in 1909 Shelton was with Woods, Torgenson, and Grigware in Denver, Colo. While there a photograph was taken showing all four of them in an automobile with a woman with whom Shelton was intimate. Later the four men were in Hot Springs, Ark. The Denver woman corresponded with Shelton, Woods, and Torgenson while they were there. Early in April, 1909, Shelton, Woods, Torgenson, and Grigware appeared in Kansas City, Mo.; also Matthews. On April 3, 1909, Matthews, by the name of Marvin, ordered a suit of clothes of a tailor in Kansas City. Grigware was with him. The tailor, as was customary, put a marker in the coat showing his business card, the name of the customer and the date of the order. When Matthews was arrested in Idaho June 18, 1909, the marker had been removed. Save for a short absence all five of the men were frequently seen in Kansas City until about the middle of May, 1909. Singly and in parties of two, three, and four they visited women in rooming houses-- Matthews with Woods and Grigware, Shelton with Woods, Torgenson, and Grigware, and Matthews with Woods, Torgenson, and Grigware. They do not appear to have had other companions. At various times when in Kansas City Shelton and Woods roomed together, as did Grigware and Torgenson, and Woods and Torgenson. They visited each other at their rooms; Matthews also visited them.

About a week before the robbery all five of them appeared in Omaha and the same association among themselves was maintained. On May 16th Matthews rented a room in Omaha and Woods soon afterwards joined him. They vacated it about 3 p.m. of Saturday, the 22d, the day of the robbery. On the same afternoon between 1 and 2 o'clock Matthews and Shelton rented a room, but Shelton did not remain long. On May 17th Torgenson and a young man who was not identified rented a room. The latter left on Monday the 24th, two days after the robbery. On the 25th Shelton joined Grigware in a room the latter had rented the day before. On the same day Woods went to room with Torgenson. There were other movements of their habitations. When Woods, Torgenson, and Grigware were arrested on the night of Thursday, May 27th, Shelton and Grigware were roommates, and Woods and Torgenson, while Matthews was by himself. All five of the men patronized the same restaurant, though they did not go or leave together.

About May 20th Shelton, Matthews, Torgenson, and Woods were seen near the Union Pacific Railroad about a mile west of Mud Cut where the train was stopped. On the afternoon of Saturday May 22d, the day of the robbery, some of the defendants were seen at Fremont, Neb., 46 miles west of Omaha. During the afternoon of that day five west-bound trains on the Union Pacific Railroad ran out of Omaha to and through Fremont, their schedule time between the two cities being from 55 minutes to 1 hour and 40 minutes. Between 5 and 6 o'clock that evening Shelton went to the rear of a residence in Fremont, and asked for and obtained a drink of water. He then filled a vessel with water and took it to an open place some distance away near the railroad tracks where several other men were preparing their meal. In the morning of the same day Woods went to a bookstore in Fremont and bought maps of Nebraska and South Dakota. During the day Woods, Torgenson, and another man not fully identified were drinking in a saloon in that city. The barkeeper had met Woods before and so accosted him. Woods remembered their former meeting. About 9 o'clock that night Grigware asked the night ticket clerk at the Union Pacific depot in Fremont about eastbound 'No. 2,' the train which was afterwards stopped at Mud Cut. He went again and got...