Russell v. United States
| Citation | 222 F.2d 197 |
| Decision Date | 20 June 1955 |
| Docket Number | No. 15351.,15351. |
| Parties | Weldon L. RUSSELL, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Charles B. Jones, Trout & Jones, Wm. H. Evans, Klett, Bean & Evans, Lubbock, Tex., for appellant.
Heard L. Floore, U. S. Atty., Fred L. Hartman, Asst. U. S. Atty., Ft. Worth, Tex., for appellee.
Before RIVES, TUTTLE and CAMERON, Circuit Judges.
Appellant was convicted on five counts of an indictment, each count charging that he made, or caused to be made, a false, fictitious and fraudulent statement in a manner within the jurisdiction of the Veterans Administration in violation of Section 1001, Title 18, United States Code.1 The statements alleged to be false were contained in five Veterans Administration forms numbered 41802, which were Applications for Home Loan Guaranty or Insurance; the specific part of said application alleged to be false being the statement that the purpose of each loan was "Purchase of Home".
Appellant procured and furnished to each of five veterans the printed form of the loan application in question, which was signed in blank by the veteran and returned to the appellant. In some manner not shown by the evidence, the loan applications, blank except for signature, then reached Raymond Thomason, Sr. who caused the blanks to be filled in and filed them with the Veterans Administration for American General Investment Corporation, the proposed lender to the veterans, along with a transmittal letter signed by Raymond Thomason, Sr., requesting the Government to guarantee the loans.
The Veterans Administration, relying upon the information contained in the application, issued a loan guaranty in each case to the lender, but would not have done so, had it known the statement "Purchase of Home", as stated in each application, was not true. Appellant instructed the loan closer to prepare a warranty deed conveying the property to B. B. Hendrix, trustee, and to obtain the veteran's signature simultaneously with the closing of the loan.
Each of the veterans was directed by appellant to go to the office of the loan closer and sign a warranty deed conveying the property to B. B. Hendrix as trustee. Thereafter, each veteran received from appellant a certain sum ($50.00 in all cases except one, who received $150.00) as consideration for signing the application and conveying the property therein described. The appellant paid all closing costs.
Appellant insists that the district court erred in not granting his motion for judgment of acquittal because there was no sufficient evidence to show either the falsity of the statement that the purpose of the loan was "Purchase of Home", or that such statement was made by the appellee or at his insistence.
Appellant complains that the statement "Purchase of Home" does not necessarily imply that the home is intended for occupancy by the veteran making the application. The purpose of the Act was well understood. Cf. Karrell v. United States, 9 Cir., 181 F.2d 981, 985. In the light of such purpose, we think that the jury was amply justified in finding that the quoted phrase meant purchase of a home for the veteran applicant.2
Appellant did not himself directly make the false statement, and there is no evidence that he ever actually knew of its precise wording. Appellant therefore insists that he cannot be convicted for having either made, or caused to be made, such statement. After careful consideration, we agree with the district court that the evidence was sufficient for submission to the jury.
Under the federal statute, 18 U. S.C.A. 2,3 an accessory before the fact becomes a principal; an aider and abettor may be indicted, tried and convicted as a principal. Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L. Ed. 214; Nye & Nissen v. United States, 9 Cir., 168 F.2d 846, 855, affirmed 336 U.S. 613, 620, 69 S.Ct. 766, 93 L.Ed. 919; United States v. Knickerbocker Fur Coat Co., 2 Cir., 66 F.2d 388, 390; Colbeck v. United States, 7 Cir., 10 F.2d 401, 403. There must exist a community of unlawful intent between the accessory and the perpetrator of the crime, but "* * an accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised or commanded, although such consequence may not have been intended by him", 22 C.J.S., Criminal Law, § 92, p. 164. Cf. Collins v. United States, 5 Cir., 65 F.2d 545, 547, with Morei v. United States, 6 Cir., 127 F.2d 827, 831. It is not essential that the accessory know the modus...
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...crime was committed or that he actively participated therein. Collins v. United States, 5 Cir., 65 F.2d 545 (1933); Russell v. United States, 5 Cir., 222 F.2d 197 (1955). 22 The evidence set out in the discussion of the conspiracy count is more than adequate to support the convictions of He......
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Com. v. French
...v. Doherty, 353 Mass. 197, 203--205, 229 N.E.2d 267; United States v. Peoni, 100 F.2d 401, 402--403 (2d Cir.); Russell v. United States, 222 F.2d 197, 198--199 (5th Cir.); Winger v. United States, 233 F.2d 440, 441--442 (9th Cir.--accessory may work through an intermediary); Massicot v. Uni......
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Smyly v. United States
...Nye & Nissen v. United States, 1948, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919, 925. We have, first in Russell v. United States, 5 Cir., 1955, 222 F.2d 197, 199, and repeated in McClanahan v. United States, 5 Cir., 1956, 230 F.2d 919, 924, certiorari denied 352 U.S. 824, 77 S. Ct. ......