United States v. Bennett

• Decision Date: 15 November 1945
• Docket Number: No. 82.,82.
• Citation: 152 F.2d 342
• Parties: UNITED STATES v. BENNETT et al.
• Court: U.S. Court of Appeals — Second Circuit

152 F.2d 342 (1945)

UNITED STATES v. BENNETT et al.

No. 82.

Circuit Court of Appeals, Second Circuit.

November 15, 1945.

Henry K. Chapman, of New York City, for appellant.

John F. X. McGohey, U. S. Atty., of New York City (David Hartfield, Jr., Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

The appellant was tried in the District Court for the Southern District of New York on an indictment charging that she and one George Wesley Bennett conspired together and with others unlawfully to acquire, possess and transfer gasoline ration coupons in violation of the provisions 50 U.S.C.A.Appendix, § 633 and of the rules, regulations and orders duly adopted and promulgated pursuant thereto by the Office of Price Administration. It was alleged to be a part of the conspiracy that the appellant would steal gasoline ration coupons from the First National Bank of Poughkeepsie, New York; transfer them to Bennett; and share with Bennett the money obtained from the sale of them. After a trial by jury both the appellant and Bennett were found guilty and she has appealed from the judgment and sentence imposed upon her.

She relies wholly upon claimed error in the charge as ground for reversal and to understand the significance of that it will be helpful now to refer to what is called in the record on appeal the "Stipulation of Agreed Facts" which follows:

"It is hereby stipulated and agreed by and between the appellant and the United States Attorney for the Southern District of New York that the following constitutes a narrative statement of facts in the case of United States v. Verna Mae Bihn and George Wesley Bennett. The parties to this stipulation agree that the facts mentioned hereafter are accurate, but neither party is precluded from referring to additional facts in the record on the argument of the appeal.

Statement of Facts

"Appellant Verna Mae Bihn, the defendant George Wesley Bennett, and the husband of Mrs. Bihn, lived in the same three room apartment in Poughkeepsie from some time in August 1943, until February, 1944, at which time Bennett left the Bihn household to get married (Ex. 9). Mrs. Bihn was employed during this period of time at the First National Bank of Poughkeepsie. Her duties there during the greater part of her employment which extended from late summer of 1943 until the first part of September 1944, were in the main connected with rationing and the necessary bookkeeping attached to the rationing functions which the bank undertook on behalf of the Government (79).

"During the period when Bennett was living in the Bihn household, Mrs. Bihn on many occasions would bring home gasoline ration coupons. When Mrs. Bihn's husband was not present, Mrs. Bihn would give these coupons to Bennett. Bennett would take these coupons, sell them, return home and divide the money received from the sale of these coupons with Mrs. Bihn (Exs. 9, 47, 41). Sometimes Mrs. Bihn would bring home loose gasoline ration stamps and sometimes she would bring home gasoline ration stamps already affixed to gummed O. P. A. forms called O. P. A. Forms R 120 (known in the gasoline trade as `bingo' sheets). Mrs. Bihn brought these stamps home to Bennett on approximately ten occasions. The average amount of coupons which she brought home was between 300 and 500 gallons each time. The largest amount of coupons that Mrs. Bihn ever brought to Bennett was between 500 and 600 gallons. When these coupons were affixed to `bingo' sheets, Mrs. Bihn would soak these coupons in water and give them to Bennett to sell after they had been removed from the gummed `bingo' sheets on which they had been affixed (Ex. 9).

"When Bennett moved to his new home in February, there were resident in this new home, in addition to his wife, the witnesses Sussana Howe and Janna Howe, respectively, the mother-in-law and sister-in-law of the defendant Bennett (3, 61).

"One Sunday in May of 1944, Mrs. Bihn approached the home of the Bennetts and remained outside (5). Mrs. Howe asked her to leave. There ensued an altercation during which the co-defendant Bennett, Mrs. Howe, Janna Howe and Mrs. Bennett were present. Mrs. Howe told Mrs. Bihn that `if she didn't leave us alone, I would be forced to notify the F. B. I., that I thought they would be very interested in the gasoline coupons and others she was stealing from the bank.' Mrs. Bihn replied: `Go ahead. Your son-in-law is in it just as deep as I am and if I go to prison he will go too' (6, 63, Ex. 9).

"Mrs. Howe knew about the coupons which Mrs. Bihn had stolen because she and both her daughters (Mrs. Bennett and Janna Howe) had seen her son-in-law Bennett have in his possession in her house hundreds and perhaps thousands of coupons of all sorts (162, 8, 3, 4, 52, 53). Both she and her daughters had asked Bennett how he came to have these coupons, and Bennett replied that Mrs. Bihn gave them to him (58).

"Shortly after the quarrel on Mother's Day, Mrs. Bihn wrote a letter to the co-defendant Bennett, and enclosed a carbon copy of that letter in a separate envelope, addressed to Mrs. Howe (5, Ex. 1). Amongst other statements in that letter was a reference to the quarrel which took place on Mother's Day, and the following is contained in that letter: `I didn't miss the crack about the F. B. I. Looks to me like you are trying to break into prison with your bare hands. Don't worry I can take it. I haven't much more than that now. But I think confining you will hurt you worse than it will me' (Ex. 1).

"Bennett stated to several of the Government witnesses that all the coupons he received he got from Mrs. Bihn (36). On another occasion he said that all the coupons he got were from a girl `he was fooling around with that worked in the bank.' The girl had been previously identified by the witness to whom the statement was made as Mrs. Bihn (43).

"Part of Mrs. Bihn's duties at the bank with respect to rationing was to collect all rationing coupons which had been deposited with the bank and place them in a box for shipment to the Office of Price Administration. It was also Mrs. Bihn's duty to keep books showing the amount of ration currency deposited in the bank (85). It was also Mrs. Bihn's duty to keep other bank records in respect to rationing (87-88, 86). These records were all kept accurately (95, 105). It was Mrs. Bihn's duty to check the ration deposits after she had received them from the bank tellers (93, 98), and it was also her duty to keep the custody and control of the ration currency after it had been deposited. Mrs. Bihn did not receive the ration evidence from the clients of the bank, this was done by the bank tellers (91) but she would later check the deposits against the deposit slips. Frequently the slips were for more than the deposits actually made (92). The gasoline ration coupons were kept in a steel letter file which was locked (98, 125). The keys to this file were kept in Mrs. Bihn's desk drawer which had no lock (99, 126). Mr. Travis, the bank cashier, had a key to the steel file. Three other persons, the note teller, assistant note teller and a stenographer had access to and the occasion to go to said steel file (99, 127) and they would not ask for the key of Mrs. Bihn, but would go to her desk and help themselves (127). Others may have gone to the steel file and taken ration tokens (99), according to Mr. Travis, and Mrs. Bihn testified that if the ration bookkeeper was not present to furnish information or ration tokens, another employee would take care of the client (127). Mrs. Bihn signed and prepared a document which represented that 156,795.5 gallons of gasoline had been delivered to the Office of Price Administration (Ex. 8, 89, 87). It was also Mrs. Bihn's duty when she had sealed the box preparatory to shipping to the O. P. A. to prepare another document on which was noted the total contents of the box with respect to each type of ration currency included therein (83-85). This document was then presented to the cashier of the bank, the witness Travis, for his signature. When the shipment was due in the forepart of September, Travis watched Mrs. Bihn prepare the box for shipment. Mrs. Bihn sealed the box and presented to Travis the document she was required to make out. This document represented on its face that there were 156,795.5 gallons of gasoline ration currency in the box (Ex. 6). Travis took the box, after having watched Mrs. Bihn prepare it, and kept it at his desk until the bank's auditor arrived that night (83). The bank's auditor examined the box and found that there were only 119,772 gallons of ration currency in the box and that there were 37,023.5 gallons missing (115).

"Subsequent to the time of indictment, and prior to trial of the case, the witness Janna Howe, the 17 year old sister-in-law of the co-defendant Bennett, received several 'phone calls at school from Mrs. Bihn who at one time said to her `* * * I better be careful and she would be waiting for me when I got out' (66)."

While the introductory paragraph of this stipulation refers to what follows as "a narrative statement of facts" and it is stated that the "parties to this stipulation agree that the facts mentioned are accurate" they also reserved the right to refer "to additional facts in the record on the argument for appeal." It is fairly evident from this reservation that the appellant did not concede that the actual facts were as stated but that there was evidence which, if believed, would have supported findings by the jury that the facts were as stated in the stipulation. That is enough to show that there was evidence on which to submit the case against the appellant to the jury and no argument to the contrary has been made. To be sure the appellant's own testimony and other evidence she introduced, some of which tended to show that some of the government's witnesses were biased and prejudiced against...