Robinson v. United States

Citation172 F. 105
Decision Date26 July 1909
Docket Number2,877.
PartiesROBINSON et al. v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

C. D O'Brien and R. D. O'Brien, for plaintiffs in error.

Charles C. Houpt, U.S. Atty., and E. S. Oakley, Asst. U.S. Atty.

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

CARLAND District Judge.

Robinson Layne, and Holliday were convicted in the trial court of a conspiracy under section 5440, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3676), to commit the offense denounced by section 5480, Rev. St. U.S. (U.S. comp. St. 1901, p. 3696). To reverse the judgment rendered against them they sued out a writ of error from this court.

It is assigned as error that the trial court erred in denying a motion in arrest of judgment. The ground of the motion in arrest was that the indictment did not charge a public offense against the laws of the United States. The only reason urged here in support of the motion in arrest is that the indictment does not by proper averment allege that the representations which defendants were to make in carrying out their scheme to defraud were to be false. Assuming, but not deciding, that such representations must be false, the language of the indictment does not bear out this claim. It is alleged therein that:

'All of which pretensions and representations so made and set forth were to be made for the purpose of persuading and inducing the persons unknown as aforesaid to send and intrust their money and funds to the said Edward A. Vaughan for investment in grains and stocks upon the representations so made and set forth in said circulars and letters, and that all moneys so sent by the persons unknown as aforesaid, and so received by said persons under the name of the said Edward A. Vaughan, be fraudulently converted to the personal use of them, the said Edward A. Vaughan, Henry F. Raymond, John Hogan, J. L. Layne, M. A. Gill, B. R. Hyman, and John Doe, and in no wise invested as promised and set forth in said circulars and representations.'

In view of these allegations, how can it be urged that the representations and pretenses were not to be false? This point is without merit.

It is further assigned as error that the trial court refused to instruct the jury in regard to circumstantial evidence. Conceding, but not deciding, that it would have been error for the court to refuse to give to the jury a properly framed charge as to the degree of certainty which must exist in a juror's mind in order to convict upon circumstantial evidence, we do not think the record discloses any such refusal. At the close of the court's charge to the jury the following conversation occurred between the court and counsel for defendants:

'Mr. O'Brien: I ask your honor to instruct the jury, on the question of the principle of law applicable to circumstantial evidence, it must point solely to the hypothesis of guilt; that if it can be reconciled in any way with the innocence, that that is the difference between direct and circumstantial evidence.
'The Court: I think that my charge is sufficient.
'Mr. O' Brien: Your honor didn't say a word about circumstantial evidence.
'The Court: I indicated that a conspiracy could be proved by circumstantial evidence.
'Mr. O' Brien: But your honor didn't give the request which I asked this morning as to the circumstantial evidence-- that it must point solely to the hypothesis of guilt.
'The Court: I think that is included in what I said with reference to the establishment of these facts beyond a reasonable doubt.
'The Court: I say here it is not necessary that the evidence should repel every fanciful theory, but it should be inconsistent with the idea of innocence.
'Mr. O' Brien: If that applies to circumstantial evidence, why, of course, the rule is that it must point solely to the hypothesis of guilt. I want to call your honor's attention--
'The Court: I think it must point solely to the hypothesis of guilt. I think that is correct; but I think I have carried the same idea here (referring to written portion of the charge).'

The court did say in its charge to the jury, in speaking of the degree of proof necessary to convict:

'But it should be inconsistent with the idea of innocence, and strong enough, as I have said, to satisfy the reason and conscience of the jury, so that they will be fully satisfied and convinced to a moral certainty of the conclusion that they reach.'

The court also, of course, instructed upon the question of reasonable doubt. It thus appears that there was no specific request to charge; hence nothing upon which an exception could be based. It appears by the conversation above quoted that the trial court was not put upon record as refusing any particular language requested by counsel. Moreover, we are satisfied that defendants suffered no prejudice from what occurred at the trial in relation to this matter.

It is again assigned as error that the court refused to instruct the jury to acquit the defendants, for the reason that the proof showed a completed offense under section 5480, and, therefore, the offense of conspiracy had become merged into that of using the mail to defraud. The crimes denounced by sections 5440 and 5480 are both misdemeanors as the law now stands, and the doctrine of merger does not apply. Berkowits v. United States, 93 F. 452, 35 C.C.A. 379.

In answer to the criticism of counsel as to this mode of proceeding it is only necessary to quote the language of Justice Brewer in delivering the opinion of the Supreme Court in Clune v. United States, 159 U.S. 590, 16 Sup.Ct. 125, 40 L.Ed. 269, as follows:

'It is contended that a conspiracy to commit an offense cannot be punished more severely than the offense itself, and also that, when the principal offense is in fact committed, the mere conspiracy is merged in it. The language of the sections is plain and not open to doubt. A conspiracy to commit an offense is denounced as itself a separate offense, and the punishment therefor fixed by the statute, and we know of no lack of power in Congress to thus deal with a conspiracy. Whatever may be thought of the wisdom or propriety of a statute making a conspiracy to do an act punishable more severely than the doing of the act itself, it is a matter to be considered solely by the legislative body. Callan v. Wilson, 127 U.S. 540, 555, 8 Sup.Ct. 1301, 32 L.Ed. 223. The power exists to separate the conspiracy from the act itself and to affix distinct and independent penalties to each.'

Again this court has decide the question presented in this assignment in accordance with the case last...

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    ...United States (C.C.A.) 118 F. 538; United States v. Cella, 37 App.D. C. 423; Lehman v. United States (C.C.A.) 127 F. 41; Robinson v. United States (C. C.A.) 172 F. 105; Morris v. United States (C.C.A.) 7 F.(2d) 785; McKelvey v. United States (C.C.A.) 241 F. 801; Riddle v. United States (C.C......
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    ...whenever any one of them does an act in furtherance of their common design." 225 U.S. at 365, 32 S.Ct. at 801 (quoting Robinson v. United States, 172 F. 105 (8th Cir.1909)). Accord United States v. Kissell, 218 U.S. 601, 608, 31 S.Ct. 124, 126, 54 L.Ed. 1168 (1910); United States v. Read, 6......
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    • 14 d3 Outubro d3 1925
    ...760, 50 L. Ed. 90; Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Robinson v. United States, 172 F. 105, 96 C. C. A. 307 (C. C. A. 8); United States v. Burke (D. C.) 218 F. 83; Tillinghast v. Richards (D. C.) 225 F. 226; Harrington v. United State......
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