Murphy v. United States

• Decision Date: 02 January 1923
• Docket Number: 3065-3068.
• Citation: 285 F. 801
• Parties: MURPHY v. UNITED STATES, [1])and three other cases.
• Court: U.S. Court of Appeals — Seventh Circuit

285 F. 801

MURPHY v. UNITED STATES, ^[1])and three other cases.

Nos. 3065-3068.

United States Court of Appeals, Seventh Circuit.

January 2, 1923

James J. Barbour, of Chicago, Ill., for plaintiffs in error Murphy and Gierum.

Benjamin P. Epstein, of Chicago, Ill., for plaintiff in error Cosmano.

Francis Borrelli, of Chicago, Ill., for plaintiff in error Volanti.

Charles F. Clyne and John E. Northup, both of Chicago, Ill., for the United States.

Timothy D. Murphy, Vincenzo Cosmano, Paul Volanti, and Edward C Gierum were convicted of conspiracy, and they bring error. Reversed as to Volanti, affirmed as to Cosmano and Gierum and modified on rehearing as to Murphy.

Two indictments were returned against defendants, which were consolidated upon the trial. Of the eight counts thus included, three were for conspiracy, and five were for the substantive offenses. Of the latter five all defendants were acquitted. Defendant Murphy was convicted on all three remaining counts, Cosmano and Gierum on two of the conspiracy counts, and Paul Volanti on one conspiracy count. The maximum sentence permitted under the statute was pronounced against each defendant on each count on which he was indicted.

The conspiracy counts (for convenience hereafter referred to in the order named) charged the defendants with conspiracy: (1) To violate section 194 of the penal law (Comp. St. Sec 10364), which makes unlawful the possession and concealment of a government mail bag stolen from the government; (2) to violate section 197 of the Criminal Code (Comp. St. Sec. 10367), which makes it unlawful for any person to rob a government employee having lawful custody of the mail; and (3) same as (2), except on a different occasion.

The government's case included the testimony of accomplices who took part in the robbery, the stolen property, or part of it, testimony as to the circumstances under which the property was recovered. These accomplices told a story of a plan, conceived in the latter part of March, 1921, to rob the mail; that a former government mail clerk furnished the information concerning the transportation of large sums of money through the mail, the method of handling the bags containing the money and securities, and other details necessary to the success of the undertaking. Teter, the government employee, and Hecker, with whom he was at the time employed in some promotion scheme in Indianapolis, testified for the government, and Gierum made a full confession, which, however, was excluded, when offered in evidence, because of the circumstances surrounding its making.

It was testified that Hecker met Murphy in 1920 in jail, where the project and its possibilities were first discussed. Later in Indianapolis Hecker saw Murphy again, and Murphy learned that he and Teter were interested in a business enterprise which at that time was rapidly approaching disaster. On this occasion Murphy was accompanied by two of his associates, and, after some negotiations in regard to the projected robbery, Hecker and Teter accepted Murphy's proposal that they come to Chicago, which they did shortly thereafter, where the plans were then perfected, and the details for their execution arranged. All defendants save Volanti were at this time identified and connected with the plot.

The parties visited the vicinity of the Polk street station, where, from a concealed position, they observed how the government mail truck reached the depot, learned of the existence and use of certain trucks to carry registered mail pouches, and observed the precautions taken by the government to prevent theft or loss. Their plans rapidly matured and March 30, about 5:30 p.m., was fixed as the date for the robbery, and an automobile was stolen and on hand to carry away 'the loot.' Teter, standing on the corner of Polk and Clark streets, was to raise his hat as the government truck turned off on Federal street, and Hecker, waiting for the signal, was to repeat it for Gierum, who was in the stolen car headed south toward the unloading platform. The men who were to commit the robbery were to be stationed near the unloading station. The plans miscarried, though all were in readiness, and the first two named parties gave their signals. Murphy expressed disappointment over the failure of his highwaymen 'to come through,' but said they would the next time, or he would get another crew. Teter and Hecker returned to Indianapolis, Murphy giving them a check for $100, and arrangements were made for their return in time to participate in the second conspiracy, the time of its consummation being later fixed at the same hour and place, but on April 6. The plans were similar to those adopted in the first plot.

On this occasion the plans were carried out with clocklike precision. The four hold-up men rushed out when the stolen Cadillac car stopped in front of the mail truck, and at the point of revolvers made the men in charge of the truck and the registered mail pouch hold up their hands. The registered mail pouch and two unregistered pouches were taken from the government truck, put in the stolen Cadillac, and rapidly carried away to the South Side of the city. Gierum, who drove the stolen car, was identified by witnesses. The car number was taken, and later the car was seen on the South Side. The number corresponded with a Cadillac stolen March 30 and belonging to one Wakem. The empty mail pouches were found that evening in the southwest part of the city, cut open and rifled.

The registered mail bag contained Liberty Bonds of the par value of $329,000, and the recovered pouch was identified, because the wrappers in which the securities were placed were found with the bag. In addition to the Liberty Bonds, there were six packages, each containing $4,000 in currency, and in the bag, or near by, were the empty paper containers that held this money. The identity of the bags and the dollar bills and the Liberty Bonds was established by numerous witnesses and may be said to be undisputed. Following the robbery the parties all sought an early division of the 'booty,' but Murphy explained that he had first put it in 'a lot of tomato boxes in a grocery store on the South Side; that he would soon move it to another place and put it in a trunk for safe-keeping'; and a few days later Murphy told Hecker that it had been placed in a trunk and moved to the home of a relative on the South Side.

On April 9th a partial division of the stolen property was made. Murphy turned over two packages to Hecker, one containing 13 $1,000 Liberty Bonds and 1,500 $1 bills, and the other containing a like amount of bonds but only 1,000 $1 bills. Hecker gave one package to Teter, together with a revolver which Murphy asked him to deliver. Teter then went back to work on the mail train. On May 31 Teter was arrested at Chicago, just before leaving the mail car upon which he arrived, and there was found in his possession a few of the $1 bills and 10 of the $1,000 Liberty Bonds. Later 200 of the $1 bills were found with his wife, and he gave information which lead to the discovery of 800 of the $1 bills. About the same time Hecker was arrested in New York, and he, too, gave a statement of his connection with the robbery, and on June 13, Murphy, Cosmano, and Gierum were placed under arrest. Among Murphy's keys was one which he claimed was for a trunk at his father-in-law's, 857 West Fiftieth street, to which place government officials went at once and closely guarded it. Murphy protested that the trunk contained only whisky, but after the lapse of some hours, when he learned that the officers were waiting for morning to obtain a search warrant, he consented that the trunk be opened, and admitted it contained money. The house was then entered, the trunk found in the attic, but only $4,000 in money was obtained. A further search of the premises was undertaken, and on the roof of the adjoining building there was found $14,803 in cash and $98,600 in Liberty Bonds. The money and the bonds were identified as having been in the stolen registered mail pouch.

Gierum upon his arrest was taken by the government inspectors to the post office, where he later made a full confession, which he repeated the next day. He later repudiated the statement, and on the trial it was contended that the confession was not admissible, and the objection was sustained. A further statement of the circumstances surrounding its execution will appear in the opinion, when the correctness of that ruling is reviewed.

In this confession the defendant Volanti was involved. When it was being given, at about 3:30 a.m., Gierum took the secret service men over the route which he told them he pursued when he drove the Cadillac with the stolen mail pouches on April 6. Volanti being thus involved by Gierum's statement, the officers at once raided his place without a search warrant, and his mother, an elderly lady, in answer to questions, informed the searchers where to find the till, and four of the $1 bills taken from the stolen mail pouch were found therein, and taken away and used on the trial. Volanti was then taken to jail, but stoutly maintained his innocence. He assigns numerous errors, to support which a long statement of facts is necessary. This will not be attempted, in view of the conclusion reached respecting the seizure and subsequent use of the 4 $1 bills found in his till.

The errors assigned are directed to: (a) The insufficiency of the indictment; (b) the three conspiracy counts describing but one offense; (c) errors in admission of evidence; (d) errors in the court's charge to the jury; (e) error in imposing punishment under each count of an indictment, when, as claimed each count charged the same offense.

Before BAKER, ALSCHULER, and EVANS, Circuit...