Naftzger v. United States

• Decision Date: 24 October 1912
• Docket Number: 3,619.
• Citation: 200 F. 494
• Parties: NAFTZGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

200 F. 494

NAFTZGER v. UNITED STATES.

No. 3,619.

United States Court of Appeals, Eighth Circuit.

October 24, 1912

L. S Naftzger was indicted for receiving and converting to his use property of the United States, knowing that the same had been stolen. The indictment was in four counts; the dates when he received the stamps and the value thereof being alleged by counts, as follows:

(1)	January 17, 1910	$727 00
(2)	June 13, 1910	300 00
(3)	July 6, 1910	350 00
(4)	July 27, 1910 . . .	191 45

There was a jury trial, resulting in acquittals under counts 1, 2 and 4, and a conviction under count 3. There was a judgment for the payment of a fine and imprisonment, followed by this writ of error.

S. B. Amidon, of Wichita, Kan., and Charles Blood Smith, of Topeka, Kan. (D. M. Dale and Jean Madalene, both of Wichita, Kan., on the brief), for plaintiff in error.

H. J. Bone, U.S. Atty., of Topeka, Kan., and McCabe Moore, Asst. U.S. Atty., of Kansas City, Mo.

Before SANBORN and HOOK, Circuit Judges, and SMITH McPHERSON, District judge.

SMITH McPHERSON, District Judge.

1. It is alleged in the third count that the defendant received the stamps from Frank S. Burt, knowing that the same had been stolen; 'the said stamps having been feloniously stolen from the United States at certain post offices of the United States in the state of Kansas, the names of said post offices and the particular stamps stolen from each being to the grand jurors unknown. ' Without the allegation that the stamps had been stolen from the United States, the District Court would have been without jurisdiction. It follows that such allegation must be supported by competent testimony to sustain the judgment in question. At the close of all the testimony, defendant moved for a direction to the jury to return a verdict of acquittal, which was overruled.

Most of the testimony was to the point whether defendant, at the time he purchased the stamps, knew that they were from an unauthorized source. As against him there was testimony as to the unusual quantity of stamps; that he hesitated before buying; that he bought them at a discount, and did not ask from whence Burt obtained them; there were four purchases; in the last purchase there were 'postage due' stamps and stamps of large denomination; what he said and his conduct after the transactions were all concluded; that he resold part of the stamps at a discount, but at a profit; and facts tending to show that the purchases were unusual by a banker and experienced business man. As favorable to him was testimony of his good character; that he bought and received the stamps, with knowledge of the bank officials and clerks at the bank, during business hours; that he purchased them from Burt, the city chief of police; that the first two purchases were for the bank, it receiving the profit; that all the purchases were covered by checks, of which records were made; that his sales were covered by checks; that he did not invoice the stamps, and did not know there were stamps for 'postage due' or stamps of unusual denomination that he promptly disclosed to the post office inspector and bank examiner the transactions when inquiry was made.

There were other facts, of which courts take judicial notice: It is unusual to buy stamps elsewhere than at post offices, except in nominal amounts; except in small sums stamps are not used as exchange; stamps have but one value and that is the face value; that 'postage due' stamps have no money value, and cannot regularly be in the possession of any one other than postal officials; and that banks, railway and insurance companies, mail order houses, and other concerns buy and have on hand many thousands of dollars in postage stamps every year. New Mexico ex rel. McLean v. Denver, etc., R.R., 203 U.S. 38, 51, 27 Sup.Ct. 1, 51 L.Ed. 78; Waters-Pierce Co. v. Deselms, 212 U.S. 159, 174, 29 Sup.Ct. 270, 53 L.Ed. 453; vol. 4, Wigmore on Evidence, Sec. 2580; vol. 1, Greenleaf on Evidence, Sec. 6.

2. Counsel for the government contend that the recital of the indictment that the stamps were stolen from 'certain post offices in the state of Kansas' is surplusage, and need not be proven, and that it sufficed if made to appear that they were stolen elsewhere from the government. We are of the opinion that, if the allegation had omitted the words quoted, it would have been sufficient; but, having been alleged, the evidence must conform to and support the allegation. only-- a co-ordinate branch of the court. It is for that body, and for no other officer, to say what shall and what shall not be charged, because the fifth amendment to the Constitution declares that:

'No person shall be held to answer * * * for an infamous crime, unless on a presentment or indictment of a grand jury.'

In effect the government now insists on amending the indictment by striking out the words 'from various post offices in the state of Kansas. ' That was what was in fact done in the case of Ex parte Bain, 121 U.S. 1, 7 Sup.Ct. 781, 30 L.Ed. 849, a case against a national bank officer for falsifying the books with intent to deceive the United States, depositors, and others, 'and the Comptroller of the Currency. ' The words 'Comptroller of the Currency' need not have been alleged. Those words, on motion of the United States attorney, were stricken out by the court as surplusage. After conviction the Supreme Court, in habeas corpus proceedings, held the judgment to be void. It was conceded that there was no necessity to allege that the Comptroller was deceived, as we concede that it would be a crime to knowingly receive stolen stamps from wheresoever stolen from the government. But it is alleged that the stamps were stolen within the state of Kansas.

An indictment is for the purpose of conferring jurisdiction and advising the court of the charge, and to advise the defendant of what he must meet; and if, after thus advising the defendant that the stamps were stolen in Kansas, the government can be allowed to show that they were stolen in some other state, such an allegation is misleading, and can be used as a snare to deceive a prisoner. In Iowa, for keeping a gambling house, an indictment is sufficient which charges the building to have been within the county. But in State v. Crogan, 8 Iowa, 523, the allegation was that the building was on a certain lot within the county. The evidence showed that the building was on a lot other than as charged. Held, that a verdict of acquittal should have been directed; the opinion reciting:

'In this case it was not necessary for the pleader to have stated the location of the house kept, further than to show the proper venue. Having alleged, as a matter of local description, that it was upon a particular lot, the proof should have sustained the allegation. The instruction should have been given'-- citing section 281, Wharton's Criminal Law, and other authorities.

3. But our conclusion rests upon a broader basis, and that is that the testimony is wholly inadequate to support a finding that the stamps had been stolen from the government at any place or places. As before stated, the courts take judicial notice of the general business affairs of the country. It takes no evidence to show that many large concerns buy and use thousands of dollars of stamps during a limited period. And if these stamps were stolen from one of such concerns, the receiving thereof with guilty knowledge would not constitute a crime against the United States. There is no sound reason for saying that there is a presumption that the stamps were stolen from the United States, rather than from others who had bought them from the government.

Burt was the chief of police of the city, and believed by all to be an upright officer. He concedes in his testimony for the government that he at no time told defendant from what source he had obtained the stamps. At the trial he testified that he had obtained them from one Callahan, the keeper of a 'fence' for stolen property. Where Callahan obtained them is not disclosed in the record. There is no testimony in the case that defendant at any time knew that they came from Callahan, and he had never heard of the man Callahan. And still further: There is no evidence as to where nor from whom Callahan received them, nor whether he received them lawfully, or unlawfully or whether from a post office, or from others having bought them from the government. The only showing is that Callahan is a bad man, and that he sold the stamps at a heavy discount. It is no answer to say that receiving the stamps with guilty knowledge is the gist of the allegation. The stamps must have been stolen from the government, and the court correctly charged the jury:

'That the government must prove beyond a reasonable doubt * * * that those stamps were stolen from post offices in this state.'

And such is the statute under which the indictment was returned. Criminal Code, Sec. 48 (Act March 4, 1909, c. 321, 35 Stat. 1098 (U.S. Comp. St. Supp. 1911, p. 1603)).

But it is contended that evidence and testimony with reference to defendant's knowledge, such as his statements and acts subsequent to the purchase, tend to show that the stamps were stolen. It is not contended that defendant at any time made a confession of guilt. But, if he had made a confession out of court, such confession would not supply the requisite proof that the stamps had been stolen. A conviction upon extrajudicial confession, or acts or declarations of a prisoner, will not be sustained, without corroborative proof that the property was in fact stolen. Roberts v People, 11 Colo. 213, 17 P. 637; State v. Keller, 8 Idaho, 699, 70 P. 1051; Bergen v. People, 17 Ill. 426, ...