United States v. Klein

• Decision Date: 25 April 1951
• Docket Number: No. 10210.,10210.
• Parties: UNITED STATES v. KLEIN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

187 F.2d 873 (1951)

UNITED STATES v. KLEIN et al.

No. 10210.

United States Court of Appeals Seventh Circuit.

March 6, 1951.

Rehearing Denied April 25, 1951.

Myer H. Gladstone, Chicago, Ill., for appellants.

Howard L. Doyle, U. S. Atty., Marks Alexander, Asst. U. S. Atty., George R. Kennedy, Asst. U. S. Atty., all of Springfield, Ill., Harry M. Weakley, Asst. U. S. Atty., Springfield, Ill., on the brief, for appellee.

Before MAJOR, Chief Judge, and KERNER and FINNEGAN, Circuit Judges.

FINNEGAN, Circuit Judge.

This case arises out of an indictment presented by the Grand Jury in the Southern District of Illinois, Southern Division, containing six counts.

Count one charged Edward Klein, Peter Dounias and Frederick Pedote as principals, with the robbery of a postal substation and with the use of a dangerous weapon in connection with such robbery. Count two charged the defendants William Ryan, Harry Hartzell and Harvey Green with being accessories after the fact to such armed robbery of said postal substation. Count three charged the defendants named as accessories after the fact with misprision of felony in connection with such armed robbery.

Count four charged the defendants Klein, Dounias and Pedote as principals with robbery of the same postal substation without the addition that a dangerous weapon was used in connection with said robbery. Count five charged the defendants Ryan, Hartzell and Green as accessories after the fact to such unarmed robbery. Count six charged Ryan, Hartzell and Green with misprision of felony in connection with such unarmed robbery.

The case was transferred to Peoria, Southern District of Illinois, Northern Division, for trial.

Frederick Pedote, a defendant named as a principal in counts one and four, pleaded guilty and appeared and testified as a witness for the Government.

On the trial the jury found the defendants Edward Klein and Peter Dounias guilty as charged on count one and not guilty on count four. The defendants Ryan and Hartzell were found guilty on counts two and three, and not guilty on counts five and six. The defendant, Harvey Green, was found not guilty.

After motions for a new trial, and in arrest of judgment were overruled, the defendants Edward Klein and Peter Dounias were sentenced to the custody of the Attorney General for a period of twenty years to be served in a penitentiary of the United States.

This appeal is prosecuted by Edward Klein and Peter Dounias, who contend that their conviction should be reversed because (a) of alleged error committed in connection with the evidence of Estelle Klein and her impeachment or contraction; (b) because of improper argument to the jury by the attorneys for the prosecution; and (c) because of an improper instruction given the jury by the trial court.

On behalf of Peter Dounias, it is also urged that there is no evidence that he was armed at the time of the alleged robbery.

Although it is not formally contended that the evidence is insufficient to support the verdict, the appellants do insist that the evidence is conflicting and that the case is close on the facts. Hence a brief statement of what was established by the testimony may give point to their contentions and serve to assist in determining their validity.

United States postal substation No. 11, was located in a drug store at 394 Callendar Avenue, in Peoria, Illinois, and was owned and operated by one Chester W. Wood. On Sunday, March 13, 1949, at about 9:10 in the evening, the substation was the scene of a robbery — postal funds to the amount of $875.52, and certain registered letters, were taken by the robbers, who also appropriated a ring and watch belonging to Chester Wood, as well as personal funds and other articles belonging to Wood and friends of his then present.

At and immediately prior to the robbery there were only three persons in the drug store: Mr. Wood, the owner; Denzel Jines, a clerk, and Paul Bontemps, a friend.

Shortly after nine P.M. Paul Bontemps, who had been visiting in the store for about two hours, was playing a small radio toward the rear of the store. Chester Wood was using a telephone, located on a dividing wall separating the front of the store from a rear storeroom, with his back to the only store entrance. Denzel Jines, the clerk, was behind the ice cream counter near the front of the store.

Two men entered the drug store. One remained near the front of the store, while the other waving a gun in his hand ordered the clerk, Jines, to "get in the back room." He then ordered Wood to hang up the telephone, and when Wood failed to obey his command, struck him over the head with the gun. Jines was standing immediately beside the man with the gun and was again ordered to go with Wood to the rear room. He then pointed the gun at Bontemps and ordered him into the rear room.

On the trial both Jines and Bontemps identified Edward Klein as being the armed robber.

Jines was then ordered by the robber identified as Klein to go to the front of the store and turn out the lights. He complied with the order, and while doing so had an opportunity to observe the second robber who threatened to "bash his head in." On trial Jines identified Peter Dounias as the second robber.

The person identified as Klein took from the person of Paul Bontemps his wallet containing seven dollars, and demanded and received from Chester Wood his watch, and a diamond ring valued at $500.

The robber identified as Dounias came and took a cardboard box, given him by Klein, and after emptying the box returned to and remained in the front part of the store where the safe containing registered letters was located.

The robbery consumed about fifteen or twenty minutes. Wood, Bontemps and Jines were locked in the toilet in the rear of the store, and the robbers took their departure. Postal funds in the sum of $875.52 were taken from the safe, together with the registered letters placed there for safe-keeping. A ring and watch belonging to Chester Wood, Bontemp's wallet with seven dollars enclosed, and also funds and other personal property of Wood, together with the small radio, which Bontemps had been operating, were taken.

Chester Wood, after having been struck on the head, could not see because of blood flowing into his eyes and over his glasses, and consequently did not identify either of the robbers.

The co-defendant and accomplice, Frederick Pedote, testified that he, Klein and Dounias, who had known each other for about a year, met in Peoria at about four P.M. on March 13, 1949. They drove around in Klein's automobile and discussed, among other things, the Chester Wood drug store, and the fact that he had a valuable diamond ring. He said that the defendant Dounias had in his possession during the drive a 45 caliber gun. Pedote stopped at his hotel and got a 38 caliber gun, which he gave to Klein. They decided that because Pedote lived in Peoria he would drive the car and wait outside while Klein and Dounais robbed the drug store.

Pedote's story was that at the time of the robbery he was in the car a short distance away from the drug store and saw the lights go out. Then Klein and Dounias came out of the drug store with a radio, and a cardboard box containing various items, and re-entered the car, and the three of them drove to a tavern and tourist court, called the Chicken Shack, on the outskirts of Peoria. During this drive Klein told Pedote about having to strike Chester Wood on the head. Co-defendants Ryan and Hartzell were contacted by telephone and came at once to the Chicken Shack, where they were apprized of the robbery, and the proceeds derived from the robbery were then divided equally. The postal envelopes and cardboard box were burned by Harvey Green, operator of the Chicken Shack, while defendant Klein took the diamond ring and the radio, in addition to his share of the money. Certain other articles were thrown into the Illinois River. Klein then stated that he was returning to Chicago at once and left in his car, and Dounias and his co-defendants Ryan and Pedote left a short time later, around midnight, for Hot Springs, Arkansas, in Ryan's Cadillac automobile, remaining in Hot Springs for nine or ten days. Later, Klein gave Dounias and Pedote $150 each as their share in Chester Wood's diamond ring.

Neither of the defendants now appealing took the witness stand to testify in their own behalf. The defendant Klein introduced evidence, consisting of the testimony of members of his family and his wife's family and one friend, to the effect that he was in Chicago on the night that the robbery was committed.

No evidence was introduced on behalf of the defendant Dounias.

Defendants contend that the trial court erred in allowing cross-examination of the witness Estelle Klein on matters they claim were not brought out on her direct examination — having particular reference to certain long distance telephone calls.

This witness was the wife of the defendant Edward Klein. On her direct examination she testified concerning the association of her husband with his co-defen...