Thomas v. United States

• Decision Date: 06 August 1954
• Docket Number: No. 14276.,14276.
• Citation: 213 F.2d 30
• Parties: THOMAS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

213 F.2d 30 (1954)

THOMAS v. UNITED STATES.

No. 14276.

United States Court of Appeals Ninth Circuit.

August 6, 1954.

A. L. Maslan, Albert Hanan, Seattle, Wash., for appellant.

Charles P. Moriarty, U. S. Atty., Leonard Ware, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before DENMAN, Chief Judge, and MATHEWS and BONE, Circuit Judges.

DENMAN, Chief Judge.

Thomas appeals from a judgment of conviction on an indictment charging:

"That on or about January 2, 1953, at Seattle, in the Northern Division of the Western District of Washington, Thomas E. Thomas, alias John E. Thomas, did falsely pretend to be an officer of the United States, to-wit, a United States Senator, and as such acted under the authority of the United States, and in such pretended character did transmit a telegram to the Warden of the State of Washington Penitentiary at Walla Walla, Washington, reading as follows, to-wit:

"`Jan. 3 1952 1158 AM

"`Warden Craner

"`Walla Walla State Penitentiary

"`Herewith is ordered stay of execution of Wilson Brothers by emergency decree. Presidential authority delegated through me as United States Senator of Washington. Confirmation following from Olympia.

W. D. Magnuson'"

The indictment was based on the felony created by 18 U.S.C. § 912, as follows:

"§ 912. Officer or employee of the United States

"Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years, or both."

While it is true that neither the President nor a United States Senator has the power to stay the execution of a death sentence of a state court, here the indictment charges Thomas with pretending to be an officer and acting under authority of the United States and acting "as such" pretended officer with such pretended authority. The Supreme Court holds on a similar statute that even if the pretense be of holding an office that does not exist and acting as if it did exist, the statute is violated. United States v. Barnow, 239 U.S. 74, 77, 36 S.Ct. 19, 60 L.Ed. 155. Referring to pertinent provisions of the similar preceding statute, that Court states 239 U.S. at page 80, 36 S.Ct. at page 22:

"* * * It is the aim of the section not merely to protect innocent persons from actual loss through reliance upon false assumptions of Federal authority, but to maintain the general good repute and dignity of the service itself. * * *"

Cf. United States v. Lepowitch, 318 U.S. 702, 704, 63 S.Ct. 914, 87 L.Ed. 1091; Russell v. United States, 9 Cir., 271 F. 684, 685.

The pertinent portions of the agreed statement of facts are that the testimony was uncontradicted that a telephone call was made on January 2, 1953 at 11:35 P.M. from the only telephone located at the Looking Glass Tavern, 2103 North 45th Street, Seattle, Washington, by a person at the tavern at that time, who transmitted the message above set forth orally through the telephone to Ruth Beck, the Western Union operator located in the Seattle office.

There was no other testimony by any other persons with respect to receipt of the call or conversations with the person who transmitted the message through the telephone. After its receipt by Ruth Beck at the Western Union office in Seattle, the telegram was transmitted at 11:58 P.M. January 2, 1953, from the Western Union office in Seattle to the Western Union operator at Walla Walla, Washington, and from there the message was delivered to the Warden of the Washington State Penitentiary at some time after 12:01 A.M. on January 3, 1953.

The Government introduced witnesses who testified they were in the Looking Glass Tavern at 11:35 P.M. on January 2, 1953, and that they then saw the defendant using the only telephone available at the tavern at that time. None of the Government witnesses at the Looking Glass Tavern heard any of the conversation of the defendant except one Government witness, Don Thomas, who testified that all he heard in the conversation of the defendant were the words "Western Union" and "Wilson Brothers". None of the Government witnesses at the tavern knew to whom the defendant was talking or what he was saying. These Government witnesses further testified that they heard the defendant or his wife ask the bartender at the tavern for change in quarters and heard the quarters fall into the coin box of the telephone at the tavern.

Senator Warren G. Magnuson appeared at the trial and testified, first, that he did not personally send the message, either through the telephone, telegram, or other means of transmission, and further, that he did not authorize any one to send the message on his behalf.

The testimony adduced on behalf of the defendant was to the effect that the defendant had been in the tavern with his wife between 7:00 P.M. and 8:00 P.M. and between 10:00 P.M. and 10:20 P.M. on January 2, 1953; that he had used the telephone in the tavern at about 10:15 P.M. for the purpose of calling his mother-in-law, and that he had returned to his home at 10:30 P.M. and remained there all evening; and that he was at home at the time the message was telephoned in to the Western Union operator at Seattle from the tavern.

This testimony as to a telephoning by Thomas at fifteen minutes after ten was not contradicted and he thus had alibi evidence which warranted an inference by the jury that the witnesses as to the 11:35 telephone had confused the earlier telephone with the later and that at the time the 11:35 message to the Warden was sent he was at his home.

On the question of Thomas'...