United States v. Beach

• Decision Date: 10 November 1961
• Docket Number: No. 8304.,8304.
• Citation: 296 F.2d 153
• Parties: UNITED STATES of America, Appellee, v. Clarence Samuel BEACH, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

296 F.2d 153 (1961)

UNITED STATES of America, Appellee, v. Clarence Samuel BEACH, Appellant.

No. 8304.

United States Court of Appeals Fourth Circuit.

Argued October 2, 1961.

Decided November 10, 1961.

R. R. Ryder, Richmond, Va., for appellant.

Plato Cacheris, Asst. U. S. Atty., Alexandria, Va. (C. V. Spratley, Jr., U. S. Atty., Alexandria, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and MICHIE, District Judge.

MICHIE, District Judge.

Clarence Samuel Beach was convicted by a jury in the United States District Court for the Eastern District of Virginia on three counts of a five count indictment for perjury alleged to have been committed before a grand jury investigating a numbers lottery in Richmond, Virginia. On the other two counts the court granted a judgment of acquittal at the conclusion of the government's evidence.

The court sentenced the defendant to the custody of the Attorney General of the United States of America for a term of three years and from this judgment of conviction the defendant appealed to this court.

The first count upon which Beach was convicted, count 2 of the indictment, alleges that Beach testified falsely before the grand jury when he testified that he did not know the identity of three men who were seen going into, coming from and using a certain room in the home of one Hugh Childress. The second count on which Beach was convicted, count 3 of the indictment, charges that Beach committed perjury in stating that he had not seen Leo Seay at the Childress home on several occasions and did not know the identity of a man he saw there from time to time who was in fact Seay. And the third count upon which Beach was convicted, count 5 of the indictment, alleges that Beach committed perjury in stating that he had not heard certain machinery in operation inside a certain room in Childress' home.

On appeal Beach presents two points. His first point is that all of the government's evidence was of a circumstantial nature and that circumstantial evidence standing alone is insufficient to sustain a conviction for the crime of perjury. His second point is that the court committed prejudicial error in allowing the jury over the objection of defense counsel to take an electric drop cord into the jury room while the jury was considering the case.

In the view we take of the case it will be necessary to discuss both of these points.

I. The Sufficiency of the Evidence

The appellant contends that the crime of perjury cannot be established by circumstantial evidence alone and argues that nothing but circumstantial evidence was produced against him at the trial. We think, however, that there was ample direct evidence, corroborated by circumstantial evidence, to sustain the verdict and so we do not have to pass upon the question of whether circumstantial evidence alone could be sufficient to sustain a conviction, though it has been so held in a number of cases, including U. S. v. Collins, 272 F.2d 650 (2nd Cir. 1959) cert. den. 80 S.Ct. 681, 362 U.S. 911, 4 L.Ed.2d 619, where the accused had sworn that certain minutes had been typed and signed by him on a certain date and the sole proof of perjury was evidence of a designer of type for IBM who testified that the type style used in the minutes had not been invented until nearly two years after the minutes were alleged to have been signed.

This result, however, did not really constitute a departure from the spirit of the so-called "two-witnesses" rule which itself is really nothing but a short-cut way of stating that in a perjury trial the evidence must consist of something more convincing than one man's word against another's. Obviously where the perjury relates to the accused's state of mind, such as what he knew or saw or heard, proof can only be made by proof of facts from which the jury will infer that the accused must have known or seen or heard what he had denied knowing or seeing or hearing. "This is necessarily so because in the nature of things it is not possible for the prosecution to prove, except through circumstantial evidence, that the accused actually remembered the facts that he had formerly sworn to." Behrle v. U. S., 69 App.D.C. 304, 100 F.2d 714, 715. "Hence the doctrine that perjury must be proved by the direct testimony of two witnesses or one corroborated witness means that the witnesses must testify to some `overt act' from which the jury may `infer' the accused's actual belief." U. S. v. Remington, 2 Cir., 191 F.2d 246, 249.

As the evidence supporting the conviction on count 2 with respect to the defendant's knowledge of the identity of the three men who were seen going into, coming from and using the room in the Childress home is substantially the same as the evidence supporting count 3 with respect to the defendant's having seen Leo Seay on several occasions at the Childress house and knowing who he was, we will treat these two counts together and then turn to the sufficiency of the evidence supporting the conviction on count 5.

Counts 2 and 3

The defendant Beach was a close friend of Mr. and Mrs. Childress who lived in a house at 5315 Chamberlayne Avenue in Henrico County, Virginia. He visited them there practically every day, usually in the afternoon or evening. He testified that while he was in a restaurant he heard three men who were unknown to him talking about wanting to rent a room and he told them that Mr. and Mrs. Childress might be willing to rent them a room. He denies recognizing any of the men at the time and definitely denies that any of them were any of the three men who later rented a room from the Childresses, although he states that he never saw the men who rented a room from the Childresses clearly enough to recognize who they were. The men were evidently connected with a numbers operation and they put in the room rented by them in the Childress house certain adding machines and came to the room daily in the afternoon, working there for several hours with the adding machines.

The three men who rented a room in the Childress home and were seen going to and from the home were Leo Seay, George Smethie and Raymond Walker. Mr. Seay testified that he had known the defendant Beach for about 28 years and Mr. Beach stated before the grand jury that he had known Mr. Seay for about 25 years. Mrs. Childress testified that Mr. Beach had talked to her about going hunting with Mr. Seay.

Smethie said, "I have been knowing Clarence (the defendant) but I never knew his name, I just knew him by sight until just recently," explaining that recently was about six months before the trial.

The defendant admits he saw the three men at the house but states that he did not see them clearly enough to recognize any of them. Yet he definitely denies that Seay was one of them. To be able to make such a denial he must have seen them clearly enough to recognize any of them that he knew.

Mrs. Childress testified that Seay came about 3:30 every day, usually with Smethie and sometimes with Walker. She also testified that Beach was at her home practically every day. She testified that Beach was in the same room with Smethie, Seay and Walker at times and that he had been in the kitchen with Mrs. Childress when the three came into the kitchen. She testified that she heard Mr. Beach call Mr. Seay by name although she didn't hear him call either of the others by name — but then she later retracted and said she never heard Mr. Beach call Mr. Seay by name although her testimony to the grand jury was likewise to the effect that she had heard Beach call Seay by name.

At first Mr. Beach testified that he never saw any one of the men who had rented a room in the Childress house but was merely told of it but later he admitted that he did see them but stated that he did not see them clearly enough to recognize any of them. And he repeated that Leo Seay was not one of them — though the fact that Leo Seay was one of them is testified to by every other witness. Later he again denied that he recognized any of the men stating that it was too dark at the time he saw them but then he immediately stated that Seay was not one of them.

Mr. Smethie, one of the three men in question, stated that he had seen Mr. Beach in the company of Mr. and Mrs. Childress a few times a week during the last four months of 1959. Is it possible that Mr. Beach did not see Mr. Smethie on those numerous occasions?

Mr. Smethie also testified that he had seen Mr. Walker in the company of Mr. and Mrs. Childress and Mr. Beach. Mr. Walker testified that he had seen Mr. Beach in the company of Mr. Seay and Mr. Smethie three or four times from September 1959 until the end of the year.

A government agent who had Seay, Smethie and Walker and the Childress house under surveillance testified that on November 3, 1959, Beach drove up to the house, parked his car and entered the house. At 3:10 p. m. a station wagon with unidentified occupants parked toward the rear of the Childress lot. Shortly thereafter Beach came out of the house, went to the station wagon and talked with the occupants. At 3:13 p. m. Smethie and Seay drove to the parking area of the Childress house. They sat in the car for a few minutes and Beach talked to Smethie. At 3:18 p. m. Walker drove up, parked his car and entered the house. Beach then went back to the station wagon and the station wagon then left and Smethie and Seay walked into the house.

Here we have Beach talking to Smethie in broad daylight with Seay in the car with Smethie and with Walker apparently in the same area as the car by the side of which Beach was standing and getting out and going into the house. It is incredible that at the time and under the circumstances Beach did not recognize these men, one of whom he admits having known for twenty-five years.

It is perhaps a rather small point but it is in evidence that Mrs. Childress, evidently worried about the activities of the three men in her home,...