Vane v. United States
| Decision Date | 02 December 1918 |
| Docket Number | 3166. |
| Parties | VANE v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Ninth Circuit |
R. L Edmiston, of Spokane, Wash., R. E. McFarland, of Coeur d'Alene, Idaho, and O. J. Bandolin, of Sandpoint, Idaho for plaintiff in error.
J. L McClear, U.S. Atty., and J. R. Smead, Asst. U.S. Atty., both of Boise, Idaho.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
This case is related to Vane v. United States, 254 F. 28 . . . C.C.A. . . ., where plaintiff in error was convicted of conspiracy to rob. By this writ of error, brought by William Vane, he seeks a reversal of conviction of robbery under an indictment which charged:
That he and three others did, on or about September 8, 1914, in the county of Barnum, Northern district of Idaho, 'willfully, unlawfully, and feloniously' make an assault, and then and there 'willfully, unlawfully, and feloniously did rob the said Hugo De Witz of certain mail matter; that is to say, they * * * then and there willfully, unlawfully, and feloniously as aforesaid, and by force and violence, did take, steal, and carry away from the possession of, and against the will of, him, the said Hugo De Witz, the aforesaid mail matter, which said mail matter then and there consisted of letters and parcels constituting a part of the United States mail then and there under the control of the post office establishment of the United States, and then and there in the lawful charge and custody of him, the said Hugo De Witz; and they, * * * in effecting the robbery of such mail matter as aforesaid, did then and there put the life of the said Hugo De Witz in jeopardy by the use of dangerous weapons, to wit, a certain pistol and certain rifles then and there loaded with gunpowder and leaden bullets, with which said weapons the said William Vane * * * did then and there threaten him, the said Hugo De Witz, and did put his life in peril.'
There is no bill of exceptions in the record, and it does not appear that there ever was a demurrer to the indictment, or a motion in arrest of judgment; but, for use upon the writ of error, a stipulation was made wherein it was agreed that at the trial of Vane and others there was no testimony offered or admitted tending to show that Vane was present at the scene of the alleged robbery, or that Vane took part in any of the overt acts constituting the actual commission of said robbery; that there was testimony tending to show that on the day and at the time of the alleged robbery Vane was at his home in Idaho about 10 miles distant from the place of the robbery, and that there was conflicting testimony tending to show that Vane provided masks and guns to his codefendants prior to the alleged robbery, and planned the robbery, and counseled and induced the other defendants to commit the robbery.
The first assignment of error presents this question: Vane not having been present at the actual robbery, was it error in the court to hold that he could be convicted under section 197 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1126 (Comp. St. 1916, Sec. 10367)), which reads as follows:
'Whoever shall assault any person having lawful charge, control, or custody of any mail matter, with intent to rob, steal, or purloin such mail matter, or any part thereof, or shall rob any such person of such mail or any part thereof, shall for a first offense be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he shall wound the person having custody of the mail, or put his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.'
The position of the plaintiff in error is that upon the face of the indictment, and upon the stipulation of facts,...
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