Van Gorder v. United States
| Decision Date | 05 October 1927 |
| Docket Number | No. 7804.,7804. |
| Citation | 21 F.2d 939 |
| Parties | VAN GORDER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Hayes Van Gorder, in pro. per.
Louis H. Breuer, U. S. Atty., of Rolla, Mo., and C. J. Stattler, Asst. U. S. Atty., of St. Louis, Mo.
Before SANBORN and BOOTH, Circuit Judges, and PHILLIPS, District Judge.
The defendant below was convicted of stealing two post office keys suited and used to open street post office boxes in Poplar Bluff, Mo., on the 17th day of January, 1924, in violation of title 18, section 314, U. S. C., which defines and denounces such an offense under penalties of a fine of not more than $500 and imprisonment for not more than 10 years. The sentence imposed upon the defendant was confinement in the penitentiary at Leavenworth, Kan., for five years and the payment of a fine of $100. He assigned many alleged errors in the trial of his case, one of which is that there was no evidence of his guilt sufficient to sustain a verdict against him.
The charge against him was that on or about the 17th day of January, 1924, he "feloniously did steal, take, and remove from the United States post office at the city of Poplar Bluff" two keys, which were properly described and alleged to have been the property of the United States. Mr. Whitworth testified that he had been the postmaster in Poplar Bluff since June 15, 1921; that the post office was entered through a rear window in the building during the night of January 17, 1924; that the screen had been torn off and the window raised; and that the two keys and some stamps were missing the next day. On cross-examination he testified that the two keys were used by the city carriers for opening the street letter boxes; that he had four letter carriers who had access to the keys and to other similar keys; that these keys were kept in the register division and put out to them mornings by the man in the money order department; that he had several sets of these keys, and that they would unlock any of the street letter boxes in Poplar Bluff; that these keys were supposed to be kept during the night after the last collection of mail in the vault in the money order side; that one of these keys was not kept there on the night of January 17, 1924; that he did not know of his own knowledge whether or not any one entered the building at all; that he drew that conclusion from the fact that there was some property missing. On cross-examination by the court he testified that he knew the defendant, that he was not connected with the post office at Poplar Bluff in any capacity while he had been postmaster; that it had been three or four years before he became postmaster in June, 1921, since the defendant had worked in that post office; and that he had not seen him in Poplar Bluff just prior to January 17, 1924.
Clarence Connell testified that he was a substitute letter carrier in the city of Poplar Bluff on January 17, 1924; that he was in temporary charge of the keys for opening the letter boxes on that day and had one of the two keys alleged to have been stolen; that the keys were delivered to him by the clerk in the money order department; that he carried them with him throughout that day, and when he was through he deposited them on a table about a foot wide on the top of the dutch door leading to the money order department; and that he has never seen them since. He further testified that he deposited these keys on the dutch door at about 6:10 p. m. of the evening of January 17, 1924; that there was no one in the money order department then; that the money order window was closed at 6 o'clock; that there were two other post office employees at the post office when he left at 6:10 p. m.; and that during the night there were two clerks on duty at different times. He further testified that it was the duty of the clerk in the money order department to put the keys which he left on the dutch door in the vault in the money order department and that they were not in that vault that night. Kieth Gray, the postmaster at Postville, Iowa, and J. F. Nicholson testified that they arrested the defendant at Postville on April 15, 1924, and found the two keys he was charged with stealing among his personal effects. B. F. Kain testified that the defendant was a letter carrier at Albion, Iowa, for about a year about 1911; that he then transferred to a clerkship there, and in 1914 he was transferred to the post office at Poplar Bluff, Mo., where he was money order clerk until November, 1918.
After presenting the evidence which has been recited the United States rested its case, and the defendant testified on his own behalf that he was not in Poplar Bluff at any time immediately prior or immediately after January 17 or 18, 1924; that he was not there on the night of January 17, 1924; that he did not know anything about the robbery, and did not have anything to do with the alleged robbery of the post office at Poplar Bluff on the night of January 17, 1924, and this was all of his testimony on his direct examination. On his cross-examination, over the objection of his counsel, he testified that on January 17, 1924, he was at Dubuque, Iowa; that on January 10, 1924, he was at Ft. Madison, Iowa, and was living there. Over the objection of his counsel and after the statement of the court to the counsel for the government that: He was compelled by counsel for the government to testify that he was once convicted of a felony at Albion, Iowa; that he once pleaded guilty to a felony at Superior, Wis.; that the charge on which he was convicted was using the mails to defraud and that the charge on which he pleaded guilty was manslaughter; and that he was at the time of the trial serving his time for using the mails to defraud.
We have set forth all the relevant testimony in this case because the defendant has been sentenced to spend five years of his life less the good time he may earn and $100 fine on the finding of the jury upon this evidence that he stole the two keys at Poplar Bluff on the night of January 17, 1924, when there was no direct evidence that he did so.
Counsel for the government argue that the fact that on April 15, 1924, when the defendant was arrested, 87 days after the keys were missed at Poplar Bluff, they were found among the effects of the defendant, raised the legal presumption that he stole them on January 17, 1924. Conceding that facts and circumstances may exist in a case from which such a presumption may arise from the recent possession by a defendant of stolen property that he had guilty knowledge that the property was stolen, and hence that he was the thief, nevertheless, in such a case the presumption that the defendant was the thief...
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