Vernon v. United States

• Decision Date: 30 April 1906
• Docket Number: 2,239.
• Citation: 146 F. 121
• Parties: VERNON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

146 F. 121

VERNON v. UNITED STATES.

No. 2,239.

United States Court of Appeals, Eighth Circuit.

April 30, 1906

James H. Harkless (Charles S. Crysler and Clifford Histed, on the brief), for plaintiff in error.

David P. Dyer, for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge.

The defendant was indicted for violation of section 5451, Rev St. (U.S. Comp. St. 1901, p. 3680). There were four indictments, each of them containing three counts. By order of the court all the indictments were consolidated and tried at one time. As the defendant was, by direction of the court acquitted on one of the indictments and on the third count of all the indictments, it is only necessary to consider the first two counts in the three indictments, in which the jury returned verdicts of guilty. As the three indictments are identical except as to the dates and locality of the sites selected, and the second count only differs from the first in charging a promise of money to Charles L. Blanton, a copy of the first count of one of the indictments will be sufficient to show clearly the issues involved. The count charges:

'That J. B. Vernon, whose Christian name is to the grand jurors aforesaid unknown, on the 1st day of August, in the year 1902, in the Northern Division of the Eastern Judicial District Of Missouri, and within the jurisdiction of said court, did unlawfully, feloniously and corruptly offer and give a large sum (the exact amount thereof being to the grand jurors aforesaid unknown) of the lawful money of the United States to one Charles L. Blanton, who was then and there, as he the said J. B. Vernon then and there well knew, a person acting for and on behalf of the United States in an official function, under and by authority of a department of the government, to wit, the Treasury Department of the United States, with the intent then and there of him the said J. B Vernon to unlawfully, feloniously and corruptly influence the action of the said Charles L. Blanton on a matter then and there pending before him in said official function as aforesaid, that is to say, in making examination of and reporting and recommending to the Secretary of the Treasury a site for a United States post office at Kirksville, Missouri contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States.

One of the other indictments charges the offer and payment of money to influence the action of Blanton in the examination and recommendation of a site for a post office at Columbia, Mo., and the other at Moberly, Mo. Kirksville and Moberly are both within the jurisdiction of the court, while Columbia is in another district, the Western District of Missouri.

Eleven errors are assigned in the assignment of errors; but as no exceptions were saved at the trial to any of the matters complained of except those set forth in the first and fourth assignments, none other can be reviewed by this court. United States v. Breitling, 20 How. 252, 15 L.Ed. 900;

Tucker v. United States, 151 U.S. 164, 14 Sup.Ct. 299, 38 L.Ed. 112; Lindsay v. Turner, 156 U.S. 208, 15 Sup.Ct. 355, 39 L.Ed. 399; Kansas & A. V. Ry. Co. v. Dye, 70 F. 24 16 C.C.A. 604; Drexel v. True, 74 F. 12, 20 C.C.A. 265. The assignments properly before us relate solely to the refusal of the court to direct a verdict in favor of the defendant on all the counts of the consolidated indictments. The gist of the offense charged in the indictments is the promise, offer or giving of money to Charles L. Blanton, who was then a person acting for and on behalf of the United States, for the purpose of unlawfully influencing his action on a matter then and there pending before him in his official function. No matter how reprehensible the conduct of the defendant might have been, under the indictments there could be no conviction unless there was substantial evidence justifying a finding by the jury that he had offered, given or promised to Blanton money for the purposes in the indictment set out. There is nothing in the statute under which he was indicted forbidding Vernon from persuading or influencing Blanton to select the sites he recommended to the end that he (Vernon) may receive a fee from the owners of the sites. It is no violation of this statute to take compensation from owners to present their sites to any officer of the government and to portray and plead their eligibility and desirability, provided he did not promise, offer or give to such officer a bribe for the purpose of unlawfully influencing his action. Was there substantial evidence to show these facts? In view of the verdict of the jury, it must be assumed that they disbelieved the explanations and denials of the defendant and Blanton. The jury, being the triers of the facts and the sole judges of the credibility of the witnesses, had a right to do that, and this cause must therefore be determined upon the evidence introduced by the government.

As there was no direct evidence to establish the fact that the defendant made any promise or offer or gave any money or other thing of value to Blanton, but the conviction was secured solely upon circumstantial evidence, the question to be determined now is whether this evidence was of such a nature as to warrant a submission of it to the jury. Circumstantial evidence warrants a conviction in a criminal case, provided it is such as to exclude every reasonable hypothesis but that of guilt of the offense imputed to the defendant; or, in other words, the facts proved must all be consistent with and point to his guilt only and inconsistent with his innocence. The hypothesis of guilt should flow naturally from the facts proved and be consistent with them all. If the evidence can be reconciled either with the theory of innocence or of guilt the law requires that the defendant be given the benefit of the doubt and that the theory of innocence be adopted. People v. Bennett, 49 N.Y. 144; United States v. Babcock, 3 Dill. 581, Fed. Cas. No. 14,487; United States v. Hart (D.C.) 78 F. 868, 873, affirmed in Hart v. United States, 84 F. 799, 38 C.C.A. 612; United States v. McKenzie (D.C.) 35 F. 826; People v. Ward, 105 Ca. 335, 38 P. 945; Asbach v. Chicago, etc. Ry. Co., 74 Iowa, 248, 37 N.W. 182; Smith v. First National Bank, 99 Mass. 605, 97 Am.Dec. 59.

In United States Fidelity & Guaranty Company v. Des Moines National Bank (decided at the present term of this court) 145 F. 273, Judge Van Devanter, who , held that:

'A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature and are so related to each other that it is the only conclusion that can fairly or reasonably be drawn from them. If the facts are consistent with either of two opposing theories, they prove neither.'

The learned trial judge, in overruling the motion of the plaintiff in error made at the close of the government's case to direct a verdict of acquittal, after reviewing all the evidence except that of the witness Kelly, hereinafter referred to, said:

'Now, that, in and of itself, would not reach, it seems to me, the requirement of the law here as to certainty so as to be in itself sufficient evidence to connect the defendant with what is the gist of this action-- the payment of money, or the promise of money to Blanton. So that, as we went along in the trial, I was impressed that there was a failure to connect this defendant with the accusation as made against him; but the connection is made, in the opinion of the court, in the testimony of witness Kelly in the interview which Kelley had with Vernon in the city of St. Louis on the 29th or 30th day of August, 1902. I was particular to understand that testimony and requested last night, so that I might give it the consideration which I would be able to, to have the same transcribed from the reporter's notes.'

The testimony of Kelley to which the learned judge thus refers was that having gone to St. Louis at the request of Vernon, they had a conversation in relation to the selection of a site in his town, and in speaking of what took place he testified:

'When I met him (Vernon) in the lobby of the hotel, he, by way of explaining his reasons for getting me down there, said that he had been interested himself in the various selections for government buildings and that he had found that there was a number of cases where the sites were satisfactory for the purpose and through his inside information that he had been in possession of, that he had been able to buy and speculate in surrounding property and had sold that at a profit through that knowledge and that the money that he had made out of it, that he-- I can't remember just the words, but the sense was-- the substance of it was that he had been able to give the fellows that had helped

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