Withaup v. United States

• Decision Date: 29 December 1903
• Docket Number: 1,771.
• Citation: 127 F. 530
• Parties: WITHAUP v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

127 F. 530

WITHAUP v. UNITED STATES.

No. 1,771.

United States Court of Appeals, Eighth Circuit.

December 29, 1903

Withaup defendant in the court below, was there tried and convicted upon an indictment charging him with forging upon the back of a pension check the name of the payee, and with uttering the check with the forged indorsement. The check was dated May 14, 1900, and drawn by the pension agent of the United States at Topeka, Kan., upon the assistant treasurer of the United States at St. Louis, Mo. Pensions are paid quarterly in February, May, August, and November. The pension agency, in mailing each check to a pensioner, sends therewith an unsigned voucher for the next payment, upon the return of which in due course, signed by the pensioner, and stating his postoffice address, the check for the next quarter is mailed to the address named. Daniel Mosher, named as payee in the check in question, died at Denver, Colo March 21, 1900, before the check was drawn. Among his effects was the unsigned voucher for the May payment, which had accompanied the pension check mailed to him in February. Evidence was produced by the government tending to show that shortly after Mosher's death this unsigned voucher fell into the hands of Withaup, who was a pension attorney residing in Denver, and familiar with pension matters; that the voucher was subsequently received at the Topeka pension agency, purporting to have been signed by the pensioner, and declaring his post-office address to be 1511 Arapahoe street Denver, a place shown to have been much frequented by Withaup at that time; that the check for the May payment was issued upon this voucher, and mailed to the pensioner at the address named, and was soon thereafter cashed by a bank in Colorado Springs, Colo., upon a day immediately following Withaup's presence there; that when so cashed the check purported to have been indorsed by the payee; that the unsigned voucher for the August payment, which accompanied the May check, was subsequently received at the pension agency, purporting to have been signed by the pensioner, and declaring his post-office address to be Colorado Springs; and that soon thereafter there was received at the pension agency a postal card purporting to be signed by the pensioner, and requesting that the August check be mailed to Villa Park, instead of Colorado Springs, as requested in his August voucher. Witnesses acquainted with Withaup's handwriting declared their belief that the indorsement upon the May check, and the signatures to the May and August vouchers and to the postal card, were written by Withaup. The court permitted the government to produce in evidence four papers purporting to be signed by Withaup, and to be part of the files of some former case in that court to which Withaup was a party defendant, and two recognizances executed by him in the case on trial, and forming part of its files. The declared purpose of introducing these papers in evidence was that the signatures to them might be used by way of comparison as established standards of Withaup's handwriting. A declaration for increase of pension by one Cogan was also admitted in evidence, along with some testimony to the effect that the body of it was written by Withaup. Assuming the seven papers last mentioned to be proper standards with which to compare the writing in dispute, J. F. Shearman, an expert or specialist in handwriting, called as a witness for the government, testified that the indorsement upon the May check, and the signatures to the other papers used as standards. The introduction of the seven papers, and their use as standards of comparison, were over the defendant's repeated objection and exception. The concluding part of Shearman's examination in chief was as follows: 'Q. Could you, Mr. Shearman, make it any plainer to the jury and the court as to how you arrive at your conclusion by the use of the blackboard? A. I think I could. Q. If you will, kindly do so. The Court: I think we will not have that done unless it be called for by the counsel for the prisoner. Q. I will ask you to state, Mr. Shearman, which can be stated orally, and without the use of the blackboard, any explanation of the method by which you reached your conclusion? A. Yes, sir. Q. I wish you would please state it. Mr. Fleming: I believe I have a right to call that out, and not the counsel. The Court: I think it is quite enough for him to state generally that it is the writing of the prisoner, unless t the writing of the signature of Daniel Mosher to other writings which had been put in evidence as having been made by the prisoner-- that it was left to the prisoner's counsel to inquire in that respect, in relation to that matter, and the prisoner's counsel did not call for that; but, presumably, if he had called for it, Mr. Shearman would have been able to declare before you upon what reasons he proceeded in his decision as to the similarity of these hands, and how it would be impossible, or at least not a matter to be believed, that another person than the prisoner could have made the writing upon the back of the check. ' This was excepted to by defendant, and specific exception was taken to the statement of what the witness 'could or would have done, had he been permitted to go to the blackboard.'

John D. Fleming, for plaintiff in error.

Earl M. Cranston, U.S. Atty. (Ernest Knaebel, Asst. U.S. Atty., on the brief), for the United States.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

VAN DEVANTER, Circuit Judge, after stating the case as above.

No error was committed in admitting in evidence the May and August vouchers and the Villa Park postal card. They were forgeries, equally with the indorsement upon the May check because all were written after the death of the pensioner. The evidence tended to show that these forgeries, and the uttering of the forged indorsement, were connected acts in a single scheme to defraud, perpetrated by the defendant. The vouchers and the postal card were therefore admissible, not to show other offenses distinct from those for which he was upon trial, but to prove the guilty intent and knowledge with which the principal acts charged were done. United States v. Doebler, 25 Fed.Cas. 883, No. 14,977; Bottomley v. United States, 3 Fed.Cas. 969, No 1,688; United States v. Hinman, 26 Fed.Cas. 902, No. 16,198; Commonwealth v. White, 145 Mass. 392, 14 N.E. 611; State v. Rose, 70 Minn. 403, 73 N.W. 177; State v. Hodges, 144 Mo. 50, 45 S.W. 1093; People v. Everhardt, 104 N.Y. 591, 11 N.E. 62; Cohen v. People, 7 Colo. 274, 3 P. 385; People v. Frank, 28 Cal. 507, 515.

Much attention has been given in the briefs and oral argument to the court's rulings in admitting in evidence claimed standards of defendant's handwriting, not otherwise relevant to the issues, and in permitting an expert in handwriting, not acquainted with that of defendant, to compare the disputed writings with these standards, and to state whether, in his opinion, they were written by the same hand. This is a subject upon which there is much contrariety of opinion among the courts. In England and several of the states of the Union, statutes have been adopted expressly permitting comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine, and permitting such writings, and the testimony of witnesses respecting the same, to be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. Colorado has such a statute, enacted April 3, 1893 (3 Mills' Ann.St.Colo. § 1746c); but Withaup was tried for an offense, not against the state of Colorado, but against the United States, and there is no congressional enactment of this character. The states are without power to prescribe or change the rules of evidence in trials for offenses against the United States, and there is not act of Congress which makes the statutes of the several states, upon this subject, as enacted and changed from time to time, applicable to trials for these offenses. In United States v. Reid, 12 How. 361, 363, 365, 13 L.Ed. 1023, it became necessary for the Supreme Court to determine the rules of evidence controlling courts of the United States in such trials, and especially to determine whether a court of the United States within the state of Virginia, in a trial for a criminal offense against the United States, should give effect to a statute of that state, adopted in 1849, changing the rules of evidence in that state applicable to the trial of criminal cases. The court said, referring to the judiciary act of 1789 (Act Sept. 24, 1789, c. 20, 1 Stat. 73), and the crimes act of 1790 (Act April 30, 1790, c. 9, 1 Stat. 112), at page 365, 12 How., 13 L.Ed. 1023:

'But neither of these acts makes any express provision concerning the mode of conducting the trial after the jury are sworn. They do not prescribe any rule by which it is to be conducted, nor the testimony by which the guilt or innocence of the party is to be determined. Yet, as the courts of the United States were then organized, and clothed with jurisdiction in criminal cases, it is obvious that some certain and established rule upon this subject was necessary to enable the courts to administer the criminal jurisprudence of the United States. And it is equally obvious that it must have been the intention of Congress to refer them to some known and established rule, which was supposed to be so familiar and well understood in the trial by jury that legislation upon the subject would be deemed superfluous. This is necessarily to be implied from what these acts of Congress omit, as well as from what they contain.

'But this could not be the common law as it existed at the time of the emigration

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