Whiteside v. United States

• Decision Date: 09 July 1965
• Docket Number: No. 17854.,17854.
• Citation: 346 F.2d 500
• Parties: Charles DeWitt WHITESIDE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

346 F.2d 500 (1965)

Charles DeWitt WHITESIDE, Appellant, v. UNITED STATES of America, Appellee.

No. 17854.

United States Court of Appeals Eighth Circuit.

June 14, 1965.

Rehearing Denied July 9, 1965.

COPYRIGHT MATERIAL OMITTED

Herbert Wolkowitz, St. Louis, Mo., made argument for appellant and filed brief.

Stephen H. Gilmore, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee and filed brief with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

MATTHES, Circuit Judge.

Title 18 U.S.C.A. § 1708 makes it unlawful for any person to have in his possession "any letter, * * * or mail, or any article or thing contained therein * * *" which has been stolen or abstracted from the mail, knowing the same to have been stolen, taken or abstracted. Title 18 U.S.C.A. § 495 provides that whoever utters or publishes as true any false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited shall be guilty of an offense and subject to the penalty prescribed in that section.

In a two-count indictment filed August 19, 1964, appellant was charged with violating the foregoing statutes. Count One alleged that on or about the 7th day of May, 1964, appellant did unlawfully have in his possession a certain United States Treasury check in the sum of $1,242 which had been stolen from the United States mail and that at the time appellant knew the same to have been stolen. Count Two alleged that on or about May 7, 1964, appellant did utter and publish as true a falsely altered and forged writing, namely, the same United States Treasury check described in the first count of the indictment and that at the time appellant knew the check had been falsely altered and forged.

A jury found appellant guilty of both offenses and he was sentenced by Judge Harper to three years imprisonment for each offense, the sentences to run concurrently. From the judgment of conviction the case was brought here by appeal.

Appellant filed a motion for judgment of acquittal at the close of all of the evidence. He now contends that the court erred in denying the motion and thus he challenges the sufficiency of the evidence to make a submissible case. More precisely, he contends (a) that there was no evidence to show that he had possession of the United States Treasury check on or about the 7th day of May, 1964; (b) that the evidence failed to prove that the Treasury check was mailed, and (c) that the evidence likewise failed to establish that the check had been stolen from the mail.

In resolving the question whether a submissible case was made, we view the evidence in the light most favorable to the Government, the prevailing party, and accord to the Government the benefit of all inferences that may reasonably be drawn from the proven facts. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Isaacs v. United States, 301 F.2d 706, 726, 727 (8 Cir. 1962), cert. denied 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962); Harding v. United States, 337 F.2d 254, 256 (8 Cir. 1964).

The uncontradicted evidence established these pertinent facts: On May 6, 1964, Treasury check No. 89,103,152 was issued in Kansas City, Missouri, payable to the order of "Emery White, 3718 Cook Av. Apt. D, St. Louis, Missouri, 63113," in the amount of $1,242.¹ The records of the Regional Disbursing Office of the United States Treasury, Kansas City, Missouri, which were properly identified and satisfied all requirements for admission into evidence, disclosed that on May 6, 1964, a total of 1,308 Treasury checks, including the one under consideration, were issued, placed in window type envelopes, sent to the United States Post Office and were mailed.

Emery White, an aged woman, resided at the address shown on the check and she testified that her mail box had been pried open and torn from the hinges some time in May, 1964; that she did not receive the Treasury check, she did not authorize anyone to cash the check; that the endorsement thereon was not in her handwriting and that she did not know appellant.

From the evidence of three employees of Biederman's Furniture Company, a St. Louis firm, it was established that on the night of May 20, 1964, appellant, who is a male, and one Gladys Stamps were in Biederman's "downtown" furniture store. Appellant represented to one of the employees that his name was Emery White; that his companion was Marion White, his wife; and that he resided at 3718 Cook Avenue. He then purchased a dinette outfit and a transistor radio for a total of $164.70. Appellant was in possession of the Treasury check above described; however, the amount thereof had been altered to read $242 instead of $1,242. The check was endorsed "Emery White, 3718 Cook, Apt. D" and was tendered to an employee with the request that $75 thereof be applied on the cost of the articles purchased and that the balance be refunded to him. The credit application was signed Emery White, address 3718 Cook. Eventually the transaction was completed, $75 was applied on the account, and $167 in cash was refunded or paid by Biedermans to appellant.

On June 30, 1964, and during the course of an investigation of the theft of the check, appellant was interrogated by a postal inspector in regard to the matter. As a result of the interview, the following statement was obtained from appellant:

"Now comes Charles DeWitt Whiteside, of lawful age, first being sworn, deposes and says:

"`That I have been questioned by a postal inspector who told me that I do not have to say anything about what I have done unless I want to; that I cannot be compelled to give testimony against myself; and that I have the right to receive counsel from an attorney or relatives and friends. I am making this statement of my own free will and no threats or promises have been made to me to induce me to make the statement.

"`On or about May 7, 1964, Frank Chatwell came to me with a check addressed to Emery White, 3718 Cook Avenue, Apartment D, St. Louis, Missouri, 63113, bearing serial No. 89,103,152, drawn on the Treasurer of the United States at Kansas City, Missouri, and bearing symbol 3101, and in the sum of $1242.00. Chatwell altered this check to read $242.00. Someone unknown to me signed the name of the payee on the back of the check and placed the address under the name. I went to Biederman\'s downtown store, with Gladys Stamps, where I opened an account. We ordered a dinette set and a small radio. A credit application was made out for me under the name of Emery White. The check was cashed for me, the sum of $75.00 was deducted, and the balance of $167.00 returned to me. I did not sign any checks.\'"

On the bottom of the statement appellant personally wrote the following:

"`I have read this statement and it is true.\' Subscribed and sworn to before me this 30th day of June, 1964, at Saint Louis, Missouri. V. D. Nidiffer, Postal Inspector."

Appellant seizes upon the variance between the date the offenses were alleged to have been committed, "on or about May 7, 1964," and the date that the transaction occurred in Biederman's place of business, May 20, 1964, and argues that this discrepancy is fatal to the Government's case. We are not so persuaded. The law is clear. Where, as here, time is not an essential element of the crime, proof that the crime was committed on a day other than that alleged, if it be within the period of limitations and before the indictment is laid, is sufficient. Alexander v. United States, 271 F.2d 140, 143 (8 Cir. 1959); Cwach v. United States, 212 F.2d 520, 529 (8 Cir. 1954); Butler v. United States, 197 F.2d 561, 562 (10 Cir. 1952); United States v. Perlstein, 126 F.2d 789, 798 (3 Cir. 1942), cert. denied 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942). The indictment informed appellant fully and correctly of the offenses with which he was charged, he was not misled in making his defense and was in no way prejudiced by the claimed variance.

The point is also made that the evidence was insufficient to establish that the check in question was actually transmitted by mail from Kansas City, Missouri to St. Louis, Missouri. Again we disagree. The Regional Disbursing Office of the United States Treasury Department in Kansas City, Missouri maintains accurate records of Treasury checks that are issued. The Regional Disbursing Officer testified that all such checks are mailed. The records of the Kansas City office also disclose the process that is pursued in issuing and in mailing the checks. Approximately three million such checks are issued and mailed each month and, as hereinabove noted, the White check was one of a number totaling 1,308 that were mailed on May 6, 1964. The checks were inserted in envelopes, run through a sealing machine, and placed in a mail pouch, which was delivered to the post office in Kansas City, Missouri. This certainly constituted probative evidence from which the jury could very properly find that the check was in fact mailed. See and compare United States v. Zimple, 318 F.2d 676 (7 Cir. 1963), cert. denied 375 U.S. 868, 84 S.Ct. 128, 11 L.Ed.2d 95 (1963); United States v. Hines, 256 F.2d 561 (2 Cir. 1958).

Appellant also challenges the sufficiency of the evidence to prove that appellant knew that the check had been stolen. There was no direct evidence on this issue but beyond question the circumstances fully justified the jury in inferring guilty knowledge. Appellant had gained possession of the check under unusual circumstances; he made false representations to Biedermans in regard to his identity, his address, and the identity and relationship of his woman companion; he forged the endorsement or knew that it had been forged. Guilty knowledge is suggested by all of the foregoing badges of fraud and wrongdoing. The jury was entitled to make common-sense inferences from the proven facts. See and...