Weisman v. United States

Decision Date28 August 1924
Docket NumberNo. 6602.,6602.
Citation1 F.2d 696
PartiesWEISMAN v. UNITED STATES.
CourtU.S. Court of Appeals — Eighth Circuit

William Baer, of St. Louis, Mo. (Harvey & Baer, of St. Louis, Mo., on the brief), for plaintiff in error.

Horace L. Dyer, Sp. Asst. U. S. Atty., of St. Louis, Mo.

Before STONE and KENYON, Circuit Judges.

KENYON, Circuit Judge.

Plaintiff in error, Dave Weisman, one William F. Doering, and William Williamson were indicted in the United States District Court for the Eastern Division of the Eastern District of Missouri. Williamson was acquitted by the jury by direction of the court. Plaintiff in error and Doering were convicted on six counts of the indictment. The facts show that on April 2, 1923, at about 6 o'clock in the morning, a number of men held up the armored truck in which United States mail was being transported from the post office in St. Louis to various substations, and took from those in charge of said truck its entire contents, consisting of stocks, bonds, and negotiable securities of the par value of over $2,000,000.

The first and second counts were based on an alleged robbery of the mails while the same was in the control and custody of Adrian G. Dorlac. The third charged the defendants with larceny of a mail pouch. The fourth, with knowingly receiving and concealing, and aiding in concealing, property stolen in the robbery. The fifth, with having in possession the property stolen in said robbery with knowledge that it had been stolen. The sixth, with having in possession a large quantity of registered mail matter stolen in the course of said robbery.

Both defendants were sentenced to 25 years' imprisonment upon the conviction under count 2 of the indictment, and 10 years upon count 1, and sentences of lesser terms upon the other convictions. All of the sentences, however, were to run concurrently with the sentence imposed against defendants on the second count of the indictment. The case is brought here, and reliance for reversal placed on two major propositions, viz.: (1) That counts 1 and 2 of the indictment are insufficient to charge the crime of robbery, for the reason that said counts fail to allege a taking from the person or presence of Adrian G. Dorlac, who was alleged to be in charge of the material stolen, and further that the allegations of both counts are so confused that they do not state a charge of robbery; (2) that the court erred as to plaintiff in error in its charge to the jury that the recent possession of stolen property raised a presumption of guilt, for the reason that there was no evidence of possession by plaintiff in error of the property stolen in the robbery in question, and therefore no basis for the charge of the court. Another point argued is the alleged error of the court in overruling defendant's motion at the close of the government's case to instruct a verdict of acquittal on each count.

I. The indictment as to counts 1 and 2 is based upon section 197 of the Penal Code (Comp St. § 10367), which is 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."

These counts rest upon this part of the statute, "or shall rob any such person of such mail or any part thereof." The statute does not undertake to define robbery, but section 284 of the Penal Code (Comp. St. § 10457) defines it as follows: "Whoever, by force and violence, or by putting in fear, shall feloniously take from the person or presence of another anything of value, shall be imprisoned not more than fifteen years."

The Supreme Court of the United States, in Collins v. McDonald, 258 U. S. 416, 420, 42 S. Ct. 326, 328 (66 L. Ed. 692), referring to this definition of robbery says: "This has been accepted as an accurate and authoritative definition of robbery from Blackstone, book IV, p. 243 (Cooley's Ed.), to Bishop's New Criminal Law, vol. II, §§ 1177, 1178." In this same case, on page 420 (42 S. Ct. 328), the court says: "Taking property from the presence of another feloniously and by putting him in fear is equivalent to taking it from his personal protection and is, in law, a taking from the person. Men do not feloniously put others in fear for the purpose of seizing their own property."

34 Cyc. 1798, gives this definition: "To constitute robbery it is essential that there be a taking `from the person.' To satisfy this requirement it is sufficient that property be taken `in the owner's presence.'"

In Vane v. United States, 254 F. 28, 32, 165 C. C. A. 438, in an indictment for robbery of a custodian of mails the words of the indictment charging that defendants did wilfully, unlawfully and feloniously rob, were held sufficient.

It is concededly the law that in an indictment the elements of the offense must appear; that it must set forth facts which it is alleged constitute the crime so clearly that the accused may know the nature of the charge he is called upon to face, in order not only that he may prepare his defense, but that a conviction will operate as a bar to another prosecution for the same offense, and as said in Brenner v. United States (C. C. A.) 287 F. 636, 640, "and so clearly that the court may be able to determine whether or not the facts there stated are sufficient to support a conviction." United States v. Britton, 107 U. S. 655, 2 Sup. Ct. 512, 27 L. Ed. 520; United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; Winters v. United States, 201 F. 845, 120 C. C. A. 175.

The Supreme Court, in Pettibone v. United States, 148 U. S. 197, 13 S. Ct. 542, 37 L. Ed. 419, says "that all the material facts and circumstances embraced in the definition of the offense must be stated, and that, if any essential element of the crime is omitted, such omission cannot be supplied by intendment or implication. The charge must be made directly and not inferentially or by way of recital." See, also, Kellerman v. United States (C. C. A.) 295 F. 796; Fontana v. United States (C. C. A.) 262 F. 283.

As to count 1 of the indictment, we may refer to the fact that the words "against the person" are used, instead of the words "from the person." Evidently this is an error of diction. The Compiled Statutes of the United States (section 1691) provide that no indictment shall be deemed insufficient by reason of any defect or imperfection in form only, which does not tend to the prejudice of defendant. The particular manner in which a fact is stated is a matter of form. McGrath v. United States (C. C. A.) 275 F. 294. Further, the court properly charged the jury on the subject of robbery, and if the evidence was sufficient to sustain the verdict the mistake or error of statement was cured by the verdict. Lamar v. United States, 241 U. S. 103, 36 S. Ct. 535, 60 L. Ed. 912; McGrath v. United States (C. C. A.) 275 F. 294.

Count 2 does not use the term "against the person." Testing the sufficiency of these two counts by the definition of robbery as laid down in section 284 of the Penal Code and approved as an accurate one by the Supreme Court in Collins v. McDonald, 258 U. S. 416, 42 S. Ct. 326, 66 L. Ed. 692, and by the holdings of the Supreme Court referred to as to the necessary allegations of an indictment, what is the result?

Count 1 of the indictment charges: "Defendants and others, on the 2d day of April, with force and arms, in and upon Adrian G. Dorlac, a person then and there having lawful charge, control, and custody of certain mail matters of the United States description of mail matter, against the person and against the will of him, the said Adrian G. Dorlac, who was then and there in lawful charge, control, and custody of said mail matters, unlawfully, feloniously, and by putting in fear him, the said Adrian G. Dorlac, did rob, steal, take, and carry away, contrary to the form," etc.

Count 2 charges: "The defendants and other persons, on the day and year aforesaid, in and upon Adrian G. Dorlac, a person then and there having lawful charge, control, and custody of certain mail matters of the United States description of mail matter, unlawfully and feloniously did make an assault, and the life of said Adrian G. Dorlac then and there in lawful charge, control, and custody of said mail matter as aforesaid, was then and there unlawfully and feloniously put in jeopardy by the use of dangerous weapons, to wit, pistols and sawed-off shotguns, then and there in the hands of defendants and others, and the said mail matters, as aforesaid, from the lawful charge, control, and custody and against the will of him, the said Adrian G. Dorlac, then and there unlawfully, feloniously, and by violence, and by putting in jeopardy the life of said Adrian G. Dorlac, did rob, steal, take, and carry away, contrary to the form," etc.

These counts allege that Dorlac had lawful charge, control, and custody of certain mail; that he was put in fear by defendants; that his life was put in jeopardy; that by violence and putting in fear, and by the threatened jeopardy, the mail matter in his lawful charge, control, and custody was unlawfully and feloniously taken away. The indictment does not in terms state that it was taken from his person. The taking, however, from his presence feloniously, by putting him in fear and by jeopardizing his life, of property of which he was in control, charge, and custody, was equivalent to taking it from his personal protection, and, as the Supreme Court said in Collins v. McDonald, supra, is in law a taking from the person. The allegations of these two counts fully...

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