Ryan v. United States

• Decision Date: 05 December 1938
• Docket Number: No. 11159.,11159.
• Parties: RYAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

99 F.2d 864 (1938)

RYAN v. UNITED STATES.

No. 11159.

Circuit Court of Appeals, Eighth Circuit.

November 15, 1938.

Rehearing Denied December 5, 1938.

Clyde Taylor and Price Wickersham, both of Kansas City, Mo., for appellant.

Sam C. Blair, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., and Randall Wilson, Richard K. Phelps, and Thomas A. Costolow, Asst. U. S. Attys., all of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

Appellant, with eight others, was indicted in an indictment which charged a conspiracy to injure and oppress specified citizens of the United States in the exercise of rights secured to them under the Constitution and laws of the United States, in violation of Section 19 of the Criminal Code, Sec. 51, Title 18 U.S.C.A.

The indictment contained two counts, but as Count 1 was dismissed by the Government, it will be passed without further reference. Count 2 charges a conspiracy to injure Republican voters of the 15th precinct of the 12th ward in Kansas City, Missouri, who should vote for the Republican candidate for Congress in the 1936 election. The right charged to have been impaired was the right to vote and to have their votes counted for the Republican candidate. The method adopted to impair that right was the false certification and return that certain ballots which had in fact been cast for the Republican candidate for Congress were cast for the Democratic candidate.

The indictment was returned on April 1, 1937. Frances S. Ryan, the appellant here, Ellis Buck, Sam Brenner, Viola Doss, Louise Davis, Frances M. Eaton, Ernest Williams, Herman Supofsky and Elva O'Byrne were named defendants. The case was continued as to Frances M. Eaton. Elva O'Byrne entered a plea of guilty; Louise Davis and Viola Doss entered pleas of nolo contendere. The other defendants entered pleas of not guilty, and on trial were found guilty. This appeal is taken by Frances Ryan alone. She seeks reversal on substantially the following grounds: (1) The evidence is insufficient to sustain the verdict; (2) the trial judge erred in proceeding after an affidavit of bias and prejudice was filed against him; (3) the trial court erred in charging the jury as to the penalty that might be imposed; (4) the trial court erred in refusing instructions requested by appellant.

The jury having found appellant guilty, we must accept that view of the evidence which is most favorable to the Government. Walker v. United States, 8 Cir., 93 F.2d 383; Galatas v. United States, 8 Cir., 80 F.2d 15; Marx v. United States, 8 Cir., 86 F.2d 245.

In view of the challenge to the sufficiency of the evidence, it will be necessary to consider it in some detail. The election was held November 3, 1936. Ellis Buck, Sam Brenner, Viola Doss, Louise Davis, Frances M. Eaton and Ruth Tucker constituted the election board in the 15th precinct of the 12th ward. Brenner and Buck were Democratic judges of election. Viola Doss and Louise Davis were acting as Republican judges of election. Ernest Williams was a Democratic precinct captain. Herman Supofsky was a Democratic worker, while Frances M. Eaton and Ruth Tucker were clerks of election.

The polling place was located at a tire shop at 4007 East 15th Street, Kansas City, Missouri. The polls opened at 6 o'clock A. M., and closed at 7 o'clock P. M. At the opening of the polls, Brenner told Buck to work on the original register. When Viola Doss arrived at the polling place, a Mr. Butler, who had been regularly appointed and commissioned as a Republican judge and who was working on one of the registers, yielded his place to her and went to work as a Republican precinct captain at some other precinct. During the day there were certain irregularities at the polling place which are not here important, but the following occurrences should be noted: About 3 o'clock in the afternoon, Brenner and Supofsky, who had worked together at registration in this same precinct in September, asked the owner of the tire shop if he had a room upstairs which they might use for a while. Having secured permission so to do, they went upstairs to the kitchen, where they sat down at a table with some "rather large books before them." They remained in that room approximately an hour. A correct count of all votes cast at this precinct showed that the Democratic candidate for Congress received 462 votes, while the Republican candidate received 136 votes. The certificates to the poll books and tally sheets, however, showed that the Democratic candidate received 565 votes, and the Republican candidate only 35 votes. These certificates were signed by the judges and clerks of election. Although the polls did not close until 7 o'clock, these certificates were signed before 4 o'clock in the afternoon.

When the polls closed, the doors and windows were locked. It then became the duty of the judges and clerks of election to count the votes and to certify that the count was correct in all respects. Revised Statutes Missouri, Secs. 10616, 10620 and 10633, Mo.St.Ann. §§ 10616, 10620, 10633, pp. 3902, 3905, 3912. A paper was put up at the windows so as to shut out vision from the outside, and Williams, the precinct captain, who also functioned as a Democratic challenger and watcher, took the ballot box, without any apparent right, and emptied the ballots out on the table and directed the others to straighten them out and put them in piles. They were then "scooted down" to the end of the table to Brenner, where, without being counted, they were put in a bag, which was then sealed. Williams then took the bag, with the tally books and poll books, which had been falsely certified, and delivered them to the Board of Election Commissioners. The false count, falsely certified, thus became the official count of the Board of Election Commissioners, and, under the law, was the final count.

Evidence was received as against defendants Buck, Brenner, Tucker, Williams and Supofsky of incriminating statements made by them, which, however, are not relied upon by the Government as against Appellant. An expert witness testified that 101 of the 441 straight Democratic ballots were spurious and fictitious; that straight Republican ballots had been changed to appear as Democratic ballots. There is no direct evidence as to who changed these ballots.

Appellant makes no contention that there was not substantial evidence to show that the conduct of the precinct officials at the voting place on election day was in violation of Section 19 of the Criminal Code, 18 U.S.C.A. § 51. Counsel, in their brief, say: "Appellant Ryan does not claim that there was not substantial evidence to show that the conduct of the precinct officials at the voting place on election day was in violation of Section 19." Again, in reply brief, this declaration is reiterated in the following words: "Appellant admitted and now admits that there was substantial evidence to show that precinct officials were guilty." Her contention is that there was no substantial evidence connecting her with the conspiracy. We, therefore, direct our attention to the evidence bearing upon her connection with the confessed conspiracy.

Appellant had been active in politics since the 1928 election. Beginning as a precinct captain, she became ward boss of the 12th ward in 1934. She was a member of the so-called Pendergast faction of the Democratic party and had charge of the 12th ward for it, and handled the headquarters for that faction throughout the year, except Sundays. She selected and gave instructions to the Democratic precinct captains. She was elected Democratic committeewoman in August, 1936. As committeewoman, she recommended Democratic judges and clerks of election for the ensuing year for the 12th ward, and she named twenty-eight judges and fourteen clerks of election. Matt Devoe assisted her at the headquarters called the "12th Ward Democratic Club." She was also superintendent of the Jackson County Parental School, to which position she was appointed by the Democratic organization.

Elva O'Byrne had been Republican Committeewoman in the 12th ward since 1930. Lester L. Aulgur was the Republican committeeman. Aulgur and O'Byrne had a meeting with appellant and Matt Devoe about the middle of September, before registration. Before going to that meeting, O'Byrne called appellant and asked her if there had been an agreement made the night before with Aulgur, Devoe, and others, to which appellant answered that there had been. O'Byrne asked if she was in on the meeting, to which appellant answered that she did not want to talk to her over the phone. Aulgur asked O'Byrne to call appellant to find out where the meeting would be held and suggested that she find out what the agreement was. Appellant said she could not attend the proposed meeting that night because she would have to go to see Jimmy Pendergast to see if the agreement was all right. The next night, Aulgur, with defendant O'Byrne, went to the Jackson County Parental School and there met appellant and Devoe in appellant's office. O'Byrne said she would like to know what the agreement was about. Devoe said, "We will give you $100.00 for the registration and we are going to give Lester L. Aulgur all the small contracts." O'Byrne said, "Well, I want my vote count, aren't we going to get our votes, Republican votes?" Appellant answered, "Yes, you will get every one of them, but you must remember, Mrs. O'Byrne, that you haven't the working organization there that we have and therefore you will not get near as many votes as we do." Defendant O'Byrne said, "And I am not in for padding the boxes." Appellant said, "* * * the boxes will not be padded." Defendant O'Byrne made some argument as to whether she was to get her votes, when Devoe jumped up, snapped his fingers, and said, "Make it short and snappy. Business is business, and we must get out of here."...