Rich v. United States

• Decision Date: 28 February 1921
• Docket Number: 5248.
• Citation: 271 F. 566
• Parties: RICH v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

271 F. 566

RICH v. UNITED STATES.

No. 5248.

United States Court of Appeals, Eighth Circuit.

February 28, 1921

Rehearing Denied May 12, 1921.

Thomas B. Harvey, of St. Louis, Mo., for plaintiff in error.

N.C. Whaley Asst. U.S. Atty., of St. Louis, Mo. (James E. Carroll, U.S Atty., of St. Louis, Mo., on the brief), for the United States.

Before HOOK and CARLAND, Circuit Judges, and LEWIS, District Judge.

CARLAND Circuit Judge.

Plaintiff in error, hereafter defendant, was convicted and sentenced for having on July 28, 1917, transported in interstate commerce from East St. Louis, Ill., to St. Louis Mo., 80 pairs of shoes which had theretofore been stolen from the Big Four Railway platform in said East St. Louis, being a shipment made by French, Shriner & Urner, of Boston, Mass to the J. G. Brandt Shoe Co., of St. Louis, Mo., said defendant at the time of said transportation well knowing said shoes to have been stolen, and for having said shoes in his possession with the knowledge aforesaid. 37 Stat. 670 (Comp. St. Secs. 8603, 8604).

Counsel for defendant contends that in the trial certain errors intervened which compel a reversal of the judgment of conviction. None of the 13 assignments of error present any question for review, except the ninth, and that alleged error was waived by defendant in the introduction of evidence after his demurrer to the evidence on the part of the prosecution had been overruled. Notwithstanding the want of proper assignments we will notice certain errors argued by counsel in this court.

The first of these alleged errors arose when the trial court permitted the witness Barron to testify that, when the defendant was arrested, there was found on his auto truck 25 bolts of silk shirting. Silk shirting was not mentioned in the counts upon which defendant was tried, but had been mentioned in two other counts, which had been dismissed by the prosecution before trial. The witness Churchill also was permitted to testify that 1,500 yards of silk shirting was on defendant's truck when he was arrested. Other witnesses were allowed to testify as to a statement made by the defendant to the officers who had him in charge, wherein defendant referred, not only to the shoes, but to the silk shirting. It is claimed that, there being no charge in the indictment in regard to the silk shirting, evidence in relation thereto was immaterial and prejudicial to the defendant. It is also claimed that it was an attempt on the part of the prosecution to prove the commission of an offense other than that charged in the indictment. The last contention mentioned is without merit. There was no evidence that the silk shirting had been stolen or that the defendant knew that it had been stolen. There is nothing in silk shirting itself that would render it criminal to transport it in an automobile or to have it in one's possession. The statement of the defendant, made to the officers which had him in charge, was voluntary so far as the evidence shows, and, the defendant himself having referred to the silk shirting, we do not think he can complain that the officers testified as to all the defendant said. The prosecution was entitled to the whole of the statement, and that was the theory upon which evidence of defendant's admission in relation to the silk shirting was admitted by the court.

So far as the other evidence in regard to the amount of silk shirting found in the automobile is concerned, the defendant on cross-examination without objection testified that he had silk shirting on his truck when arrested. He also testified that it came from Ike Keshnell, in East St. Louis. It appears, therefore, that the defendant himself brought the matter of silk shirting into the case by his statement to the officers, and at the trial testified in regard thereto without objection. In this view of the case, we do not think that defendant is in a position to complain in regard to the admission of evidence concerning the silk shirting. Although the sufficiency of the evidence to sustain the verdict is not before us, we have carefully read the same, and have no doubt that there was sufficient evidence to warrant the jury in finding the defendant guilty.

Much is made of the refusal of the trial court to allow the witness McCormick to answer the question propounded by counsel for the defendant as to whether or not the officers had not given the defendant the third degree; the object of counsel being to show in some way that the statement of the defendant made to the officers was obtained in such circumstances as to render it inadmissible as evidence. The defendant, when on the stand, testified that he was not beaten at the time the statement was made, that he did not remember whether he was pushed or shoved, or whether any one put their hands upon him, and that no threats were used. The trial court stated that he did not know what the words 'third degree' meant when he sustained the objection to the question of ...