Paine v. United States

• Decision Date: 03 August 1925
• Docket Number: No. 4576.,4576.
• Citation: 7 F.2d 263
• Parties: PAINE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

7 F.2d 263 (1925)

PAINE et al. v. UNITED STATES.

No. 4576.

Circuit Court of Appeals, Ninth Circuit.

August 3, 1925.

Ernest Pagnuelo, of San Francisco, Cal. (Marshall B. Woodworth, of San Francisco, Cal., of counsel), for plaintiffs in error.

Sterling Carr, U. S. Atty., and James D. Whalen, Asst. U. S. Atty., both of San Francisco, Cal.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

RUDKIN, Circuit Judge.

The present writs of error were sued out to review a judgment of conviction of the crime of larceny. The indictment charged that the three plaintiffs in error did unlawfully, willfully, knowingly, and feloniously take and carry away, with intent to commit larceny, to wit, to steal and purloin, certain personal property of the prosecuting witness consisting of $75 in lawful money of the United States, certain traveler's checks of the value of $230, and the personal check of the prosecuting witness of the value of $203. The money and property in question were lost by the prosecuting witness in a game of cards. The court instructed the jury that larceny may be committed by any willful trick or device, or by the stacking of cards, or by other act or acts by which the element of chance in a game of cards is eliminated, if by reason of such skillfulness or such willful elimination of chance by defendants the complainant is deprived of his money or other thing of value. Upon this theory the case was tried and submitted to the jury.

The testimony on the part of the government tended to show that the prosecuting witness became a passenger at Los Angeles on the steamship Ruth Alexander, plying between San Diego, Cal., and Seattle, Wash.; that soon after entering his stateroom he met one of the plaintiffs in error; that the latter told him that he met a man on the electric train while coming to the dock; and that he saw the same man on board and was invited by him to have a drink, and the prosecuting witness was invited to join them. The prosecuting witness accepted the invitation and joined the other parties later, and their meeting resulted in the game of cards at which the prosecuting witness lost his money and property. According to his testimony, four hands in all were played, the first two for trifling stakes represented by matches. On the third hand the prosecuting witness won $50 or $75, but on the fourth and last hand he lost his money and checks. It must be conceded at the outstart that the prosecuting witness had rather a vague and indefinite idea as to how he was swindled, if swindled at all, and the irregularities in the game as detailed by him would not seem to be of grave or controlling importance. The assignments of error challenge certain rulings admitting testimony over objection and the sufficiency of the testimony to support the verdict.

We will consider briefly these several rulings in the order in which they occurred at the trial. The government offered testimony tending to show that a passenger on the steamship Harvard, plying between Los Angeles and San Francisco, was swindled in a game of cards in a somewhat similar manner about six months before, and that one of the plaintiffs in error was a party to the swindle. The admission of this testimony is assigned as error. It is no doubt the general rule that evidence of the commission by a defendant of an offense similar to that for the commission of which he is on trial is not admissible to prove his commission of the latter offense. But there is a well-recognized exception to this rule in the case of fraud. In Butler v. Watkins, 13 Wall. 456, 20 L. Ed. 629, the court said:

"In actions for fraud, large latitude is always given to the admission of evidence. If a motive exist prompting to a particular line of conduct, and it be shown that in pursuing that line a defendant has deceived and defrauded one person, it may justly be inferred that similar conduct towards another, at or about the same time and in relation to a like subject, was actuated by the same spirit."

Again, in N. Y. Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591, 598, 6 S. Ct. 877, 880, 29 L. Ed. 997, the same court said:

"The theory of the defense is that the purpose of Hunter in obtaining the insurance was to cheat and defraud the company. In support of that position evidence that he effected insurances upon the life of Armstrong...