Means v. United States, 5802.

Citation65 F.2d 206,62 App. DC 118
Decision Date17 April 1933
Docket NumberNo. 5802.,5802.
PartiesMEANS v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

T. Morris Wampler, Joseph Turco, J. William Tomlinson, and William E. Leahy, all of Washington, D. C., for appellant.

Leo A. Rover, William H. Collins, and Roger Robb, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and VAN ORSDEL, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

Appellant, defendant below, was convicted of the crime of larceny.

The indictment against him contained four counts. The first count charged the larceny of $100,000 from Mrs. Evalyn Walsh McLean on March 7, 1932; the third count charged the embezzlement from her of the same money; the second count charged the larceny of $4,000 from Mrs. McLean on the 18th day of March 1932; and the fourth count charged the embezzlement of the same money.

Defendant pleaded not guilty. At the trial the court directed a verdict of not guilty on the fourth count. The jury found the defendant not guilty on the third count, but guilty on the first and second or larceny counts.

At the trial the defendant offered no testimony. The testimony of the government convincingly established the following facts: That after the kidnaping of the infant son of Colonel and Mrs. Charles A. Lindbergh on or about the first day of March 1932, the defendant, in an interview with Mrs. McLean, persuaded her by means of false and fraudulent statements that he could assist in locating and recovering the kidnaped baby. Mrs. McLean was induced by these representations to pay over to defendant the sum of $100,000 with which to pay the ransom and secure the return of the child. Upon a later occasion defendant by similar means secured from Mrs. McLean the sum of $4,000 for the payment of alleged expenses of the kidnapers. These representations made by defendant were willfully false and fraudulent and were designed solely for the purpose of obtaining the money from Mrs. McLean and not for the purpose of locating and recovering the child. The defendant converted the money thus paid to him to his own use, and none of it was ever expended in an effort to recover the child, nor was any part of it returned to Mrs. McLean.

It is contended by appellant that the lower court erred in refusing to require the government to elect between the larceny and embezzlement counts of the indictment before the submission of the case to the jury. This contention is not sound. Section 361, title 6, of the D. C. Code, 1929, provides: "Offenses that may be joined — An indictment for larceny may contain a count for obtaining the same property by false pretenses, a count for embezzlement thereof, and a count for receiving or concealing the same property, knowing it to be stolen or embezzled, or any of such counts, and the jury may convict of any of such offenses, and may find any or all of the persons indicted guilty of any of said offenses."

This section clearly contemplates the submission to the jury of all counts of an indictment charging larceny and embezzlement of the same property; otherwise the jury could not "convict of any of such offenses."

It is said by the court in Lorenz v. U. S., 24 App. D. C. 337: "Whether such a request should be granted depends upon the special circumstances of the case, and rests in the sound discretion of the trial court." In Pointer v. U. S., 151 U. S. 396, 14 S. Ct. 410, 412, 38 L. Ed. 208, the Supreme Court when passing on a similar question said: "The court is invested with such discretion as enables it to do justice between the government and the accused."

In the instant case the same evidence was relied upon to support the larceny and embezzlement counts. The determination of defendant's guilt or innocence and of the nature of his offense depended upon the...

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  • United States v. Baker, Cr. No. 39-66.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 20, 1966
    ...643 of the transcript of oral argument. 34 Atkinson v. United States, 53 App.D.C. 277, 289 F. 935 (1923). 35 See Means v. United States, 62 App. D.C. 118, 65 F.2d 206 (1933); and Dobbins v. United States, 81 U.S.App.D.C. 218, 157 F.2d 257 (1946), wherein defendant, a lawyer, was charged wit......
  • Bracey v. United States, 8618.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 31, 1944
    ...App.D.C. 250, 252, 113 F.2d 34, 36, and authorities there cited; Kidwell v. United States, 38 App.D.C. 566, 574; Means v. United States, 62 App.D.C. 118, 119, 65 F.2d 206, 207. 8 Borum v. United States, 61 App.D.C. 4, 6, 56 F.2d 301, 303. 9 Ryan v. United States, 26 App.D.C. 74, 83, 6 Ann.C......
  • United States v. Beatty, Cr. No. 27577.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 7, 1968
    ...351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); United States v. Henderson, 185 F.2d 189 (7th Cir. 1950); and Means v. United States, 62 App.D.C. 118, 65 F.2d 206 (1933). See also Wakaksan v. United States, 367 F.2d 639 (8th Cir. 1966); Reistroffer v. United States, 258 F.2d 379 (8th Cir......
  • Shettel v. United States, 7456.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 10, 1940
    ...571, 60 S.Ct. 84, 84 L.Ed. ___. See also, Williamson v. United States, 207 U.S. 425, 451, 28 S. Ct. 163, 52 L.Ed. 278; Means v. United States, 62 App.D.C. 118, 65 F.2d 206; Fall v. United States, 60 App.D.C. 124, 130, 49 F.2d 506, 512, certiorari denied, 283 U.S. 867, 51 S.Ct. 657, 75 L.Ed.......
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