246 F. 568 | 5th Cir. | 1917
Lead Opinion
The plaintiff in error was convicted in the District Court for a violation of section 218 of the Penal Code, in having altered a postal money order, issued at Macon, Ga., on December 26, 1914, for the sum of $1, payable to Charles A. Wells at Atlanta, Ga.; the alteration consisting of raising it from $1, as issued, to $21, by writing the figure “2” before the figure “1” on the face of the money order, and by writing the word “twenty” before the word “one” where it appeared on the face of the order and its coupon.
The errors assigned and argued with earnestness and ability by counsel assigned by the District Judge to defend the plaintiff in error are based upon the alleged admission of illegal evidence and upon the insufficiency of the evidence to support a conviction. The facts in the case, briefly stated, follow:
The evidence of the plaintiff in the court below tended to show that the defendant was in Macon on December 26, 1914, and that on the morning of that day an application was made to the postmaster at Macon for a money order in the sum of $1, payable to Charles A. Wells at Atlanta, by some one who signed the name of M. M. Clark to the application. The application itself was introduced in evidence by the plaintiff. The postmaster was unable to identify the person who applied for and to whom the money order was issued. An agent of the Southern Express Company at Macon identified the defendant as a person whom he saw in Macon on the morning of December 26, 1914, and again in Atlanta in his trial in the state court a few days thereafter. The evidence of the plaintiff next accounted for the defendant in Atlanta on the evening of December 26, 1914, between 5 and 9 o’clock, at the place of his arrest, where he attempted without success to pass a Southern Express money order on a merchant named Jacobs. After leaving Jacobs’ place of business, he was placed under arrest by a detective named Vickery, and, on request, he turned over to this officer the express money order, the letter and the envelope, under which it was inclosed, purporting to be addressed to the defendant at Atlanta and mailed from Macon at 11 o’clock in the morning of December 26, 1914, by M. M. Clark. He also turned over to the officer a
The defendant introduced evidence tending to show that on the night of December 26, 1914, after lip. m., a man passed a Southern Express money order for $23 on one Austern in Decatur street, Atlanta, representing himself to be Charles A. Wells, in payment of an overcoat purchased by him from Austern. The witness Austern testified that he saw the defendant a few days after this occurrence, and that the defendant was not the man who passed the Southern Express money order on him. The defendant, testifying in his own behalf, said that he met one M. M. Clark in Jacksonville on December 14, 1914, and was employed by him to help him take orders and put up signs with gold letters, a sample of which he exhibited in court; that he worked on a 50 per cent, commission basis in Waycross on December 21st and 22d, in Macon on December 23d and 24th, and took $43 in orders, of which his share was $21.50; and that during the same time a man named Charles A. Wells also worked for Clark in the same way, and earned, on the same basis,' during the same period, $23; that Wells and the defendant left Macon on Christmas Day at 1:30 p. m., and arrived in Atlanta at 5 p. m. the same day, leaving Clark in Macon, with ,a mutual understanding that Clark was to meet the defendant and Wells at the post office in Atlanta on the evening of December 26, 1914, at 6 p. m.; that Wells and the defendant were there at the appointed time, but Clark failed to meet them, and that they then each asked for mail at the general delivery window of the Atlanta post office, and each received a letter from Clark; that the defendant received the express money order for $21.50, which he presented afterwards to Jacobs for payment; that Wells received an express money order in his letter for
“It is clear that the question, whether the verdict was contrary to the evidence, which is the first error assigned, is not one which can be considered in this court, if there were any evidence proper to go to the jury in support of the verdict.’”
And again, after setting out the evidence, the court said (138 U. S. 363, 11 Sup. Ct. 356 [34 L. Ed. 958]):
“There is no doubt that this testimony was sufficient to lay before the jury, and it would have been improper to direct a verdict for the defendant. The weight of this evidence, and the extent to which it was contradicted or explained away by witnesses on behalf of the defendant, were questions exclusively for the jury, and not reviewable upon writ of error. If the verdict were manifestly against the weight of the evidence, defendant was at liberty to move for a new trial upon that ground; but that the granting or refusing of such a motion is a matter of discretion is settled in Freeborn v. Smith, 2 Wall. 160 [17 L. Ed. 922]; Railway Co. v. Heck, 102 U. S. 120 [26 L. Ed. 58], Lancaster v. Collins, 115 U. S. 222 [6 Sup. Ct. 33, 29 L. Ed. 373], and many other cases in this court.”
Thfe question, therefore, is whether there is any evidence in the record in support of the verdict, and not whether the jury reached a right conclusion from it. The time at which this determination is to be made is at the conclusion of all the evidence — that of plaintiff and defendant.
If the jury found that the entries in the memorandum book, introduced in evidence by the plaintiff, were in the handwriting of the-defendant; that the handwriting of such entries and that of the application for the postal money order were identical, the jury might well infer that the defendant wrote both the entries in the book and the application for the money order, and, finding that the handwriting of the money order was his, might well infer that the money order was issued to him, and, in that event, the inference might reasonably be indulged that the person to whom the postal money order was issued was the person who altered it. If the documents are to be considered as evidence in the case for the purpose of comparison of handwritings, then they constitute some evidence before the jury to connect the defendant with the raising and alteration of the postal money order.
These are the items of evidence in the plaintiff’s case. It is not worth while considering whether of themselves they are sufficient to connect defendant with the alteration, as they are properly to be considered along with the evidence introduced by the defendant. The defendant’s evidence consisted of his own testimony and that of the witness L. Austern. The latter adds no strength to the case of thé government, and weakens it to the extent that it has for its basis that the defendant and Wells were one person. The evidence of the defendant in his own behalf does establish a connection between the defendant and the postal money order. The defendant’s evidence is not a general denial of all knowledge of the existence of such a money order. He admits having seen it, as he says, in the post office at Atlanta in Wells’ possession and before it was altered. He denies, however, having any other or further connection with it. In weighing the effect of this denial is to be considered the- evidence tending to. show that it was recovered from a source that might have indicated to the jury that it continued in the defendant’s possession till after his arrest. His denial is also to be considered, in view of his explanation of how he came to see the postal money order, and the reasonableness of his story, which limited his connection to this momentary glance. That story was that he and Wells had worked for Clark in Macon and Waycross, and had preceded him to Atlanta, and had his promise to meet them there in person and pay them for the work they had done. He failed to so meet them. They immediately resorted to the general delivery, though there was no understanding with or advice from Clark to that effect, and each claims to have received separate letters from Clark, inclosing their wages in the form
The evidence with relation to it consists in the undisputed fact that defendant had it in his pocket when arrested; in the character of the book itself, and of the entries contained in it, and of the defendant’s denial that the book was his, or the entries in his handwriting, and of his explanation of how he came by it. The contention of the defendant is that the fact that the book was in his possession was evidence neither (1) that it was his, nor (2) that, if his, the entries were in his handwriting.
As to the first point, we think that possession in a case like this should be considered prima facie evidence of ownership, so as to shift the burden of showing the contrary to the defendant, found in possession. The general rule in civil cases is that possession is some evidence of ownership. In criminal cases, where the defendant’s evidence is not constitutionally available to the government, the need for and reason of the rule is more evident. If there is nothing on the face of the article that negatives the presumption of ownership, arising out of possession, we think the proper rule to. be that the jury is authorized, if they see fit, to infer ownership from the fact of possession unexplained. The explanation, when given, and its reasonableness, is a question for the jury, and does not affect the admissibility of the evidence, unless it shows without conflict that the ownership was elsewhere than in the possessor. The inference of ownership would be strengthened, when the article was surrendered voluntarily by the possessor and without denial of ownership, and when it was, like a pocketbook or a diary, of a kind ordinarily carried on the person of the owner, as was true in this case. We think the inference of ownership might have been drawn in this case from the possession of the memorandum book. If it was de
The case of McCombs v. State, 109 Ga. 496, 34 S. E. 1021, concerns the finding of two letters on the accused, and it does not affirmatively appear from the report of the case that they were letters of such a nature as would have customarily been written by the possessor. The case of Van Sickle v. People, 29 Mich. 61, concerns a diary, and would seem to oppose the view we have taken. Every case must depend on its own facts, so far as those facts depend upon the nature of the document and the circumstances of its possession by the accused. Handwriting, admitted to be used as a basis of comparison under the act of Congress, is not required to be proven genuine in any other way than is any other document offered in evidence. Proof of genuineness, under the act of Congress, may arise from inference, providing the inference is convincing beyond a reasonable doubt, when the case is a criminal one. Direct evidence is a mode, but not the exclusive mode, of proof. Inference from the admitted facts that only one person had ac
We find no reversible error in the record, and the case is affirmed.
Dissenting Opinion
(dissenting). If in a criminal case it is claimed that the verdict is against the weight of the evidence, it is within the discretion of the trial judge to determine whether it shall be set aside, and his action will rarely be reviewed on appeal. If,
The defendant in this case was convicted, and the District Judge refused to set aside the verdict. All of the facts adverse to the defendant may be thus summarized: (1) He was at Macon, Ga., on December 26, 1913. (This fact he denied.) (2) On that day an application for a money order for $1 was made by a person signing his name M. M. Clark; payee, Charles A. Wells. (The postmaster testified that the application was for $1.50.) (3) The money order was issued in accordance with the application. (4) At 6 o’clock defendant saw - Charles A. Wells at the post office at Atlanta, with the money order, for $1 in his possession. (5) The defendant was arrested between 5 and 9 o’clock on that day. (6) He was taken to tire jail in a patrol wagon. (7) At the time of his arrest he, delivered to the arresting officer a small book, originally a blank book, in, which was writing, and a letter, which purported to be signed by M. M. Clark, to the effect that the writer had sent to the defendant an express money order, the envelope postmarked “Macon.” (8) The book,, application for money order, and money order said to have been raised were introduced in evidence.
In addition to these facts, either proved satisfactorily or assumed to be true for the purposes of this opinion, the witness Vickery testified that, at a date which, to the best of his recollection, was the 27th of December, 1913, he received, to the best of his recollection, • from one Brazelton, who, to the best of his recollection, was in charge of the prisoner while he was in the patrol wagon after arrest, the money order. There was no evidence as to the condition of the money order at the time it was received by him, and no evidence that it was in the same condition .at the time of trial as when he first saw it.
All the other evidence in the case was either favorable to the defendant, or was without probative force. It is detailed in the opinion of the court. The facts summarized are, of course, insufficient to establish the guilt of the defendant. In addition to this, however, the jury had before them the handwriting in the application, in the money order, and in the book given up by defendant. There was no expert testimony with reference to handwriting. An examination of the book referred to suggests the possibility that the entries were in the hands of more than one person. The jury, however, may have concluded that all of the writing .in this book, the application for the money order, and the word “twenty,” assumed to have been inserted in the money order after issue, were in the same handwriting. Assuming the handwriting the same, facts established and assumed are still insufficient proof of the guilt of defendant.
There is no proof that any of the writing was in the hand of the defendant. To sustain the conviction this process is indulged: The
The book used as the basis for comparison of handwriting was a small pocket blank book, belonging, defendant testified, to M. M. Clark. On alternate pages throughout the book was writing in ink, as follows:
Dontn Adr. Co. • 28 Norfolk, Ya. Lumberton, N. O. To
I?. 246. A Burt no blanks. 6 qts. $1.00
.15 .85
There were a number of names and addresses of individuals. There were in ink two lists of names of cities with dates following, as:
Wayeross 15 Tirara; Maccon 45. Sat 12/26; Atlanta 160. Tugs; Uynch-burg, 33 Sat 1/16; Memphis 140 Sat 2/6.
The book was primarily introduced to establish that the defendant was in Macon on December 26th. It was no' more proof of that fact than of the fact that he was at I/ynchburg on the 16th of January, when, according to the testimony, he was in jail at Atlanta. If, however, it was not erroneous to introduce the book as evidence of something which it had no tendency to prove, its use by the jury should have been confined to that purpose, when objection was made to its use as a basis for the comparison of handwriting.
The federal law has liberalized the rule with reference to the standard to be used in comparison of handwriting, but it is still necessary that the standard be proved or acknowledged. This requirement has not been met. The only authority-brought to our attention distinctly so holds. Van Sickle v. People, 29 Mich. 61.
If the view expressed to the effect that, where the evidence against the defendant is accepted as true, but is insufficient to establish guilt, an appellate court should reverse the action of the trial judge in refusing to set aside the verdict of guilty, is erroneous, Chis case should, nevertheless, be reversed for the error in permitting the use of the memorandum book as the basis for a comparison of handwriting.
Witnesses for the government, over the protest of earnest and capable attorneys appointed by the court to defend the accused, injected into their testimony the fact that defendant had been convicted of raising an express money order. It may be suggested that any resulting error was cured by the fact that defendant felt impelled to, or did thereafter, make a statement concerning this conviction. But, whether there was error or not, the fact of conviction, while it did not prove the present charge, doubtless had much effect in inducing
I dissent from the judgment of affirmance.