Walker v. United States, 10862.

• Decision Date: 04 January 1938
• Docket Number: No. 10862.,10862.
• Parties: WALKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

93 F.2d 792 (1938)

WALKER v. UNITED STATES.

No. 10862.

Circuit Court of Appeals, Eighth Circuit.

January 4, 1938.

I. J. Ringolsky, William G. Boatright, Harry L. Jacobs, Ludwick Graves, James Daleo, Ringolsky, Boatright & Jacobs, and Johnson, Lucas, Landon, Graves & Fane, all of Kansas City, Mo., for appellant.

Maurice M. Milligan, U. S. Atty., Randall Wilson, Sam C. Blair, Thomas A. Costolow, and Richard K. Phelps, Asst. U. S. Attys., all of Kansas City, Mo.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

Upon the second count of an indictment charging appellant with violation of section 135 of the Criminal Code, 18 U.S.C. § 241, 18 U.S.C.A. § 241, he was tried and convicted. From such conviction he appeals. The statute upon which the indictment is based provides that "Whoever corruptly, or by threats or force, or by any threatening letter or communication, shall endeavor to influence, intimidate, or impede any witness, in any court of the United States" shall be fined or imprisoned.

The second count of the indictment upon which appellant was convicted charges: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that on or about the 10th day of January, 1937, at Kansas City, Jackson County, Missouri, * * * one Edson M. Walker, with a corrupt intent, wilfully, unlawfully, knowingly and corruptly then and there did endeavor to influence one Chloe G. Albright, who was then and there a witness in a certain criminal case then pending in the District Court of the United States in and for the Western District of Missouri, entitled United States of America v. Edson M. Walker, Miss Loretta McEntee, Mrs. Anna V. O'Laughlin, Mrs. Chloe G. Albright, Elijah Burke, Mrs. Tessie Mears, and John H. Drummond, wherein the persons last aforesaid were charged by an indictment duly and legally returned by the grand jury of the District Court of the United States in and for the Western District of Missouri, with a violation of section 51, title 18, U.S.C.A. (Criminal Code, § 19), and which said indictment was then on file in said Court and numbered on the records of said Court, Number 13,648, to refuse to tell the whole truth regarding her knowledge of the commission of the offense charged in and by the indictment aforesaid, and charged to have been committed by the persons last aforesaid, and to deny that she had made a statement to the Special Agents of the Federal Bureau of Investigation, Department of Justice of the United States, which was a statement of her knowledge of the commission of the offense charged in and by the indictment aforesaid, and to commit, upon her part, wilful and corrupt perjury in violation of section 231, Title 18, U.S.C.A. (Criminal Code, § 125), before and in the Court aforesaid, when the case aforesaid should be called for trial and tried therein; the said Edson M. Walker then and there well and fully knowing that Chloe G. Albright aforesaid then and there was and intended to be a witness in said case for and on behalf of the United States of America before and in said Court when said case should be called for trial and tried in said Court. * *"

It will be observed that appellant Walker and Chloe G. Albright, whom it is charged appellant corruptly endeavored to influence, were codefendants in case No. 13648, referred to in the indictment. That case was one of several involving certain alleged election frauds at the November, 1936, election in Kansas City, Mo. The defendants were election officials in one of the voting precincts in that city, and the indictment charged among other things that they did not count the ballots and make a correct return of the results, but instead certified to a false return to the Board of Election Commissioners. Their conduct had been under investigation by the grand jury for some time, when on the evening of January 9, 1937, the newspapers reported that an indictment had been returned, charging all the defendants with violation of section 19 of the Criminal Code, 18 U.S.C.A. § 51.

Upon the trial of the present case, Chloe G. Albright was the principal witness for the government. She testified in essential part as follows:

"I next saw Defendant Walker the evening of January 9, which was a Saturday, at my home, 6423 East 13th Street, Kansas City, Missouri. He came to my house. I had a conversation with him, a few words.

"Q. What did he say to you? A. He came in and he says `Have you saw the paper, tonight's paper?' I said `No, I haven't.' `Well,' he said, `we are all indicted.' I said `What do you mean, we are all indicted?' `Well,' he said, `we are all indicted in the election, over the election,' and I yet said `What do you mean that we are indicted.' `Well,' he said `We have got to go down and post bond, give bond,' and I said, `When?' and he did not make any definite statement as to when, and he said to me, `Has the Government men been out to see you?' I said `They have.' He said `What did you tell him.' I said `I told them just exactly what happened election day.' He said `You told him the ballots were not counted?' `Yes, sir,' I said `I told them they were not counted.' Well, he said `If it ever comes up to trial or court you deny it.' Well, I said `I can't, I done told it and I am going to stick by it, there is nothing else I can do but tell the truth.' He said `Did you sign anything?' I said `No, sir.' I first told him it would be perjury if I changed my statement and I knew it. He said `Did you sign something?' and I said `No, sir,' and he said `It isn't perjury unless it is a sworn statement, signed' and I said `I still can't change my testimony, my story at all' and as he was leaving he said to me `There is no use for you to worry,' he said `There is plenty of legal talent and the bonds will be all furnished free.'

"Q. Now, with reference to this statement he made about your testimony did he make any reference to where this testimony was to be given or anything as to where it was to be, — where this testimony was to be? A. He said to court. Of course I knew in my own mind it would be the grand jury. * * *

"I next saw Defendant Walker the next evening, which was Sunday evening, at my home. * * *

"Well, he still said he wanted me to change my story, he wanted my story like they wanted me to tell it, not as I told the Government man at all. * * *

"I said to him `Well, Walker, I can't change my story, it is still perjury and I know it and I can't change my story at all.' Well, he said `There isn't nothing to fear,' he says `If you go ahead and tell as we want you to tell,' he says `There is nothing for you to fear.' * * *

"I asked him, I said `Just what would happen if I go ahead and tell the truth of what happened down there, what will happen'. He said, `oh, nothing will happen in preference only we all will ignore you' and I didn't ask him who `we all' were. * * *

"As he started out the door he said `now, we all want to get the same story', he said `we all want to tell the same story if it comes to court we want to get together and get the same story and you girls,' meaning myself for one, he said `abide by the way we do, we want you to, and everything will be all right.'"

Upon this evidence, corroborated by the testimony of other witnesses, the verdict and judgment appealed from rest.

Four propositions are relied upon to secure a reversal: (1) The insufficiency of the indictment, in that its allegations are vague and indefinite; (2) the petit jury was not properly selected; (3) a motion for a directed verdict should have been sustained for insufficiency of evidence; and (4) the court's charge to the jury was erroneous, argumentative, and prejudicial.

The first ground of appeal, that the indictment is vague and indefinite, is without merit. Appellant does not contend that the statement of the elements of the offense is lacking; but he argues that the allegations are so indefinite that they do not sufficiently apprise him and the court of the nature of the offense so as to relieve him of the danger of a second prosecution for the same acts. A reading of the indictment should be sufficient to dispose of this criticism. This case is unlike the cases relied upon by appellant. He cites United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, where the defendants were charged with conspiring "to injure, oppress, threaten, and intimidate citizens" without any statement of what those acts of oppression were; United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 573, 31 L.Ed. 516, in which the defendant was charged with "having devised a scheme to defraud" without any statement of what the scheme was; and Fontana v. United States, 8 Cir., 262 F. 283, where a defendant was accused under the Espionage Act, 50 U.S.C.A. § 33, of disloyal statements, without any identification of the time, place, occasion, or circumstances by which defendant could identify the remarks. None of the essentials found to be omitted in these cases is lacking in the present indictment. An indictment very similar to the one in the present case was held to be sufficient in Davey v. United States, 7 Cir., 208 F. 237. This court's unwillingness to reverse a conviction for lack of certainty in the indictment was indicated in Smith v. United States, 8 Cir., 83 F.2d 631. See, also, Horn v. United States, 8 Cir., 182 F. 721, and Corbett v. United States, 8 Cir., 89 F.2d 124.

The second contention on appeal is a challange to the petit jury panel on the ground that the names included therein were not lawfully selected. The facts in connection with this point and the legal propositions involved are identical with the facts and contentions in Walker et al. v. United States, 8 Cir., 93 F.2d 383, decided at this term, as well as in several other cases known as the Kansas City, Mo., election cases. This case upon this point is governed by the same principles of law and is controlled by the decisions in those cases. The alleged...