McCormick v. United States

• Decision Date: 13 November 1925
• Docket Number: No. 6487.,6487.
• Citation: 9 F.2d 237
• Parties: McCORMICK v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.2d 237 (1925)

McCORMICK v. UNITED STATES.

No. 6487.

Circuit Court of Appeals, Eighth Circuit.

November 13, 1925.

Le Roy Bowen and John E. Stevens, both of Minneapolis, Minn. (William M. Nash and Chester L. Nichols, both of Minneapolis, Minn., on the brief), for plaintiff in error.

Lafayette French, Jr., U. S. Atty., of St. Paul, Minn. (William Anderson, Asst. U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

VAN VALKENBURGH, Circuit Judge.

Plaintiff in error, with five named defendants, among whom was one Henry E. Sorlien, was indicted in the District Court of the United States for the District of Minnesota at the April term thereof, 1923. The indictment returned contained two counts. The first count charged the defendants, under section 194 of the Penal Code (Comp. St. ? 10364), with unlawfully and feloniously receiving, concealing, and having in possession certain bonds, gold notes, and coupons stolen from and out of the United States mails, which the defendants knew were so stolen when they received, concealed, and unlawfully had the same in their possession. The second count charged the same named defendants, together with others to the grand jurors unknown, with having willfully, knowingly, and feloniously conspired to commit the substantive offense described and charged in the first count. The indictment was challenged by demurrers, which were overruled, and, upon trial, a verdict of guilty was returned upon both counts against plaintiff in error and another defendant, one Arthur W. Lindbloom. The sentence imposed upon plaintiff in error was a fine of $2,000 and imprisonment for five years on the first count, and a fine of $10,000 and imprisonment for two years on the second count. During the progress of the trial the defendant Sorlien entered a plea of guilty.

The first error assigned is that the indictment fails to state an offense and that the demurrers interposed should have been sustained. This contention is predicated upon the allegation, as stated in the indictment, that the defendants knew that the bonds had been so stolen when they received, concealed, and unlawfully had the same in their possession. It is conceded that this charge would cover the receiving and concealing, but it is urged that as to the possession the indictment should have stated more specifically that at the time plaintiff in error became unlawfully possessed thereof he knew the bonds were stolen. This challenge is to say the least hypercritical, and is without substance. The entire charge in both counts sufficiently advises that the knowledge assigned referred to the time of acquiring possession. It is alleged that the defendants "did unlawfully and feloniously receive, conceal, and unlawfully have in their possession," and further on, "all of which bonds had been stolen from and out of the United States mail and which the defendants knew had been so stolen when they received, concealed and unlawfully had the same in their possession, as aforesaid." The bonds were, of course, not in possession until they had been received and the knowledge then acquired continued throughout the possession. In the second count it is alleged that the defendants named and others conspired "unlawfully, willfully, knowingly, and feloniously to buy, receive, conceal, and unlawfully have in their possession, and to aid in buying, receiving, concealing, and unlawfully having in their possession, certain bonds and gold notes, * * * all of which bonds and gold notes, and the coupons thereof, had been stolen from and out of the mails of the United States, and which said defendants knew had been so stolen when they bought, received, concealed, and unlawfully had the same in their possession." Such allegations have been uniformly ruled to meet the requirements of the statute. United States v. Hopkins (D. C.) 290 F. 619; Lonergan v. United States (C. C. A.) 287 F. 538; Martin et al. v. United States (C. C. A.) 280 F. 513; Pakas v. United States, 240 F. 350, 153 C. C. A. 276; Thompson v. United States, 202 F. 401, 120 C. C. A. 575, 47 L. R. A. (N. S.) 206. The point is without merit.

It is next urged that the court erred in admitting evidence concerning money stolen from the Denver mint and bonds stolen from a bank, the larceny in each case not having been from the mails, and therefore not within the offense charged. This evidence was introduced incidentally in the testimony of witnesses as part of the res gest? and as disclosing the history of the alleged crime. It was competent as bearing upon the participation of the various defendants, and was admissible as tending to prove intent and knowledge as well as the existence of a conspiracy. The defendant Sorlien, who had entered a plea of guilty and was a witness for the government, testified that he received certain bonds from plaintiff in error, which McCormick told him had been stolen in the New York postal robbery. Loans were negotiated upon these bonds as collateral, and a large part of the moneys received on these loans was turned over to plaintiff in error. As these loans approached maturity it became necessary that the bonds so pledged should be taken up; otherwise, the fact that they had been stolen would be discovered. McCormick then undertook to obtain other bonds stolen in this same mail robbery. Sorlien was to dispose of them to a South Dakota banker and the proceeds were to be used to take up the loans which had been thus secured. Sorlien and McCormick went to St. Paul to secure these additional bonds. McCormick left Sorlien, returned with a suit case, and told Sorlien that it contained currency which had been stolen in the robbery of the Denver mint. He then proposed that Sorlien use this currency, instead of bonds, in taking up the loans and regaining possession of the stolen bonds originally pledged. With respect to the bonds stolen from the bank it was arranged between Sorlien and McCormick that the latter should get additional bonds stolen from the mails to replace the stolen bank bonds, which had been either sold or hypothecated, and with which the parties loaning the same had become dissatisfied. This testimony respecting the currency stolen from the Denver mint and the bonds stolen from the bank was so inseparably interwoven with the transactions complained of and charged in the indictment that its admission clearly constituted no error. In Astwood v. United States (C. C. A.) 1 F.(2d) 639-642, this court said:

"As a general rule evidence of other crimes is inadmissible, but to this rule there are certain well-recognized exceptions. It does not apply where the evidence of another crime tends directly to prove the crime charged, and evidence which is relevant to defendant's guilt is not rendered inadmissible because it proves or tends to prove him guilty of another separate and distinct crime citing cases. It often happens that two distinct offenses are so inseparably connected, as in the instant case, that the proof of one necessarily involves proof of...