Poffenbarger v. United States, No. 7134.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: SANBORN and BOOTH, Circuit , and KENNAMER
• Citation: 20 F.2d 42
• Decision Date: 10 June 1927
• Docket Number: No. 7134.
• Parties: POFFENBARGER v. UNITED STATES.

20 F.2d 42 (1927)

POFFENBARGER
v.
UNITED STATES.*

No. 7134.

Circuit Court of Appeals, Eighth Circuit.

June 10, 1927.

E. D. O'Sullivan, of Omaha, Neb. (W. N. Jamieson and C. J. Southard, both of Omaha, Neb., and J. J. Hess, of Council Bluffs, Iowa, on the brief), for plaintiff in error.

Frank Wilson, Asst. U. S. Atty., of Greenfield, Iowa (Ross R. Mowry, U. S. Atty., of Newton, Iowa, and Ray C. Fountain, Asst. U. S. Atty., of Des Moines, Iowa, on the brief), for the United States.

Before SANBORN and BOOTH, Circuit Judges, and KENNAMER, District Judge.

KENNAMER, District Judge.

The defendant is charged by indictment returned on the 11th day of May, 1921, in the United States District Court for the Southern District of Iowa, Central Division, in four counts, with having unlawfully, willfully, and feloniously abstracted mail from certain mail bags specifically described and numbered, each count describing a separate mail bag and reciting that the defendant unlawfully abstracted mail therefrom. The case was transferred to the Western Division of the Southern District of Iowa, where the defendant was tried on January 20, 1925, resulting in a conviction upon each of the four counts of the indictment. By writ of error, the case is brought to this court for review.

The facts are that the plaintiff in error, Fred Poffenbarger, and one Orville Phillips, about the 13th day of November, 1920, entered a mail car, which constituted a part of a United States mail train. Ten sacks of registered mail were thrown from the train along the right of way, after the train had left the Union Pacific transfer in Council Bluffs, Iowa, and before it had arrived at the Burlington depot in Council Bluffs, Iowa. According to a well-defined and prearranged plan, one Orville Phillips rode on the engine,

20 F.2d 43

in order to maintain vigilance, and one Keith Collins had parked an automobile near the place where the mail bags were thrown from the train. After removing the sacks of mail from the train, plaintiff in error and Orville Phillips proceeded back to the place where the bags had been thrown and placed 5 of the sacks in the car driven by Collins. Plaintiff in error and Phillips later returned to the place where the sacks had been thrown, and carried those remaining to a nearby school house, where 3 or 4 were hidden, but one bag was taken to Poffenbarger's house. The latter bag was rifled, but little money was found. They later returned and got 2 or 3 pouches, which were carried to the residence of Poffenbarger, where they were rifled. Only about 30 or 40 dollars was obtained from these pouches, which sum was divided among those present. Later, the pouch in the schoolhouse was rifled, and a shipment of bonds which were perforated and marked void found. Everything they obtained in the way of bonds, securities, or correspondence was burned in a stove at the Poffenbarger home. Later that evening plaintiff in error went to the home of Keith Collins, where Collins exhibited to him a vast sum of money which he had obtained from the bags placed in his automobile. Plaintiff in error was given $20,000 in $10 bills. The bags thrown from the train contained valuable registered mail and $50,000 in cash. There was stolen in this robbery $500,000 worth of Liberty Bonds, which were negotiable and which have never been recovered

On November 30, 1920, plaintiff in error was indicted in the Central Division of the Southern District of Iowa in six counts, the first five of which alleged that the said Fred Poffenbarger and one Orville Phillips did take, steal, and carry away one certain mail bag, describing the mail bag with great particularity. Count 6 of the indictment charged that Fred Poffenbarger and Orville Phillips did take, steal, and carry away five certain other mail bags. On the 3d day of December, 1920, the defendant entered a plea of guilty to the indictment. Sentence was imposed and he was imprisoned in the United States penitentiary at Leavenworth, Kan. At the expiration of five years of the sentence, plaintiff in error was released under a writ of habeas corpus because of error in the judgment imposing sentence. The indictment in the instant case charges the plaintiff in error with taking and abstracting from certain accurately described mail bags certain of the contents thereof, describing said contents so removed.

On January 30, 1925, plaintiff in error filed a special demurrer, which was overruled by the court on that date. Thereafter, a plea of misnomer was filed, which was supported by affidavits of various witnesses, and to which an answer was filed by the defendant in error, which was likewise supported by affidavits. The plea of misnomer was overruled, and thereafter plea of former conviction was filed, to which a response was filed by the government. The latter plea was likewise overruled, and on January 20, 1925, the plaintiff in error was tried, at which trial, plaintiff in error refused to plead, and a plea of not guilty was entered for him by the court. After the trial, resulting in a conviction, a motion for a new trial was filed, which was overruled. On the same day a motion in arrest of judgment was filed, and was likewise overruled. Sentence was imposed upon plaintiff in error, which provided for his imprisonment in the United States penitentiary at Atlanta, Ga., for a period of five years on each of the four counts, said sentence to run consecutively.

The first specification of error assigned and presented for plaintiff in error is that the court erred in overruling the special demurrer. It is urged that the indictment fails in material allegations under section 194 of the Criminal Code of the United States (Comp. St. § 10364), which is as follows:

"Whoever shall steal, take, or abstract, or by fraud or deception obtain, from or...