Schultz v. United States

• Decision Date: 21 October 1912
• Docket Number: 3,582.
• Citation: 200 F. 234
• Parties: SCHULTZ v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

200 F. 234

SCHULTZ v. UNITED STATES.

No. 3,582.

United States Court of Appeals, Eighth Circuit.

October 21, 1912

P. C Young, of Fredonia, Kan., for plaintiff in error.

McCabe Moore, Asst. U.S. Atty., of Kansas City, Mo. (Harry J. Bone U.S. Atty., of Topeka, Kan., on the brief), for the United States.

Before ADAMS and SMITH, Circuit Judges, and REED, District Judge.

SMITH Circuit Judge.

Mel Schultz, hereafter called the defendant, was indicted in the District Court of the United States for the District of Kansas. The indictment was in three counts. The first charged him with altering a silver certificate with intent to defraud C. C. McHenry. The second charged him with altering a silver certificate with intent to defraud divers persons. Upon these counts he was found not guilty. The third count was as follows:

'And the grand jurors aforesaid, on their oath aforesaid, do further find and present that at the county of Greenwood, in the said division of said district, and within the jurisdiction of this court, on or about the 6th day of August, 1908, one Mel Schultz, then and there being, did then and there, with intent to defraud one C. C. McHenry, willfully, knowingly, unlawfully, and feloniously pass, utter, and publish to and upon said C. C. McHenry a certain genuine $1 United States silver certificate, then and there being unlawfully and feloniously altered by having pasted thereon the figure 1 on each of the four places on the face thereof where said figure appeared, the figure 5, so as to make said instrument read and appear as a $5 United States silver certificate, with intent then and there and thereby unlawfully and feloniously to pass, utter, and publish said instrument to and upon said C. C. McHenry, as a genuine $5 United States silver certificate, the said genuine $1 silver certificate then and there being a valid obligation and security of the United States, he, the said Mel Schultz, then and there knowing the same to be falsely altered as above set forth, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.'

Upon this count he was found guilty, was sentenced to a year and a day in the Leavenworth penitentiary and a fine of $500, and to pay the costs, and to stand committed until such fine and costs are paid.

Charles Copenhaver, 16 years of age, testified: That he was in a photograph car occupied by the defendant the last of June, 1908, and saw the defendant in company with Elmer Cale. Cale asked him to go up town and buy some ink, which he did, and when he returned he found the defendant and Cale pasting the figure 5 over the figure 1 on a dollar silver certificate. That they told him they wanted ink to use in connection with this work. C. C. McHenry testified: That on July 4, 1908, he was keeping a stand in front of the store of Robert Robertson at Severy, Kan., during a celebration. The defendant and Elmer Cale came to his stand to make a purchase, probably of cigars, and handed to him a $5 bill. He took it back to Mr. Robertson to get it changed, and when the latter took the bill one of the 5's came loose. Mr. Robertson and the witness went back to the stand, and the witness said to the defendant that the bill had been raised, and he better put it in his pocket, or it might get him into trouble. On cross-examination he was asked if defendant did not say:

'That is not the bill I gave you. The bill I gave you was a good one. If this is not good, I know where I got it, and will make the fellow come across.'

And if Elmer Cale did not say:

'Did you examine the bill you got in the crap game?'

And the defendant said: 'No.' Mr. Robertson was asked substantially the same questions. The government then called C. C. Cline, who testified: That at Fredonia, Kan., on August 6th, at the county fair, he was keeping a stand, and that about 9 o'clock p.m., Clarence Cass came to his stand, accompanied by the defendant. Cass called for some tobacco, and handed him what appeared to be a $5 bill. He took it, and holding it up toward the light, found that he could not see through the figures 5. He handed it back to Cass, and told him that it was not good. Cass left the stand, did not take the tobacco, and went off in company with the defendant.

This and similar evidence by other witnesses was objected to by the defendant, and overruled, and he excepted. A motion to strike such evidence was made, and the question of the admissibility of it was raised in divers ways.

As clearly foreshadowed prior to the introduction of this testimony, defendant subsequently called Elmer Cale, who testified that the defendant was in a crap game, and got the bill in part for his winnings, and that he was with the defendant at the time the bill was passed, and heard defendant say:

'That is not the bill I gave you. The one I gave you was good.'

And:

'If it is not good, I know where I got it, and will make the fellow come across.'

If this incident in fact took place, it was clearly part of the res gestae and was admissible. The defendant himself testified to the same state of affairs.

As the crime with which the defendant was charged took place on July 4th, he insists that evidence of his conduct in company with Cass on August 6th thereafter would not be admissible against him. Ordinarily the commission of one crime, in and of itself, has no legitimate tendency to prove the commission of another crime; but in Wood v. United States, 16 Pet. 342, 10 L.Ed. 987, Story, Justice, said:

'The question was one of fraudulent intent or not; and upon questions of that sort, where the intent of the party is matter in issue, it has always been deemed allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party, of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment. Indeed, in no other way would it be practicable, in many cases, to establish such intent or motive, for the single act, taken by itself, may not be decisive either way; but, when taken in connection with others of the like character and nature, the intent and motive may be demonstrated almost with a conclusive certainly. The treatises on Evidence by Mr. Phillips and Mr. Starkie contain many illustrations to this effect. See Stark. Evid. vol. 1, p. 64; Id., vol. 2, pp. 220, 221 (2d Lond. Edit. 1833); Phil. Evid. by Cowen, vol. 1, c. 7, Sec. 7, pp. 179, 180; Id., vol. 2, p. 452, note 333; Id., p. 465, note 352 (Edit. 1839). They constitute exceptions to the general rule, excluding evidence not directly comprehended within the issue, or rather, perhaps, it may with more certainty be said, the exception is necessarily embodied in the very substance of the rule; for whatever does legally conduce to establish the points in issue is necessarily embraced in it, and therefore a proper subject of proof, whether it be direct or only presumptive. This doctrine was held in a most solemn manner in the case of King v. Wylie, 4 Bos. & Pul. 92, where upon an indictment for disposing and putting away a forged bank note, knowing it to be forged, evidence was admitted of other forged notes having been uttered by the prisoner, in order to prove his knowledge of the forgery. The same doctrine has been held in cases of the uttering of bad money and spurious notes, and also in cases of conspiracy. The same doctrine was affirmed and acted upon by this court, in the case of United States v. Wood, 14 Pet. 430, 10 L.Ed. 527, in the case of a prosecution for perjury.'

If intent, motive, knowledge, or design be one of the elements of the crime charged, and especially if it is claimed that the crime was committed in accordance with a system, plan, or scheme, evidence of other like conduct by the defendant at or near the time charged is admissible. Brown v. United States, 142 F. 1, 73 C.C.A. 187; Dillard v. United States, 141 F. 303, 72 C.C.A. 451; Walsh v. United States, 174 F. 615, 98 C.C.A. 461; Ex parte Glaser, 176 F. 702, 100 C.C.A. 254; Thompson v. United States, 144 F. 14, 75 C.C.A. 172, 7 Ann.Cas. 62.

The question at once arises: What is meant by at or near the time of the transaction charged? This is a matter almost wholly confided to the discretion of the trial court. In Packer v. United States, 106 F. 906, 46 C.C.A. 35, it was held that transactions a year prior to the one in question might be...