*2 STONE, WOODROUGH, аnd Before THOMAS, Judges. Circuit THOMAS, Judge. Circuit Squire appellant William defendant, indicted, called hereinafter convicted in the below tried and upon court counts an contain- both indictment counts, appeals. ing two and he charg- The first count of the indictment being aft- ed defendant with er the felony fact to committed Neal; L. misprision and the second count charged of the same committed Neal. The defendant was sen- penitentiary tenced to serve years for two count, on each the sentences run concurrently consecutively. and not interposed Before trial indictment, count demurrer to one which was At overruled. the close of.the he moved for a verdict directed upon ground counts both of insuf- ficiency of evidence to a verdict guilty, which motion was overruled. appeal urges On this the defendant overruling trial court erred the demurrer to indictment, count one of the overruling (2) in his motion for directed counts, (3) both verdict on admis- objection, sion certain evidence permitting prose- misconduct attorney argument cuting in his jury, (5) in giving certain instruc- jury. tions concurrently, Sinсe the sentences run properly .if the defendant was convicted indictment, count of the either there WOODROUGH, Judge, if can reversal even Circuit dis- error on trial of senting. reversible
6á5 charged him he was steal- situation sentenced in that The defendant counts. carrying away from the bank $97.- the sentence prejudiced by is not $97.50 50. on December on De- tainted which the conviction 24, 1937; 8 cember on December $97.50 Roberts v. error. *3 1937; 22, 40; 1937; on United and Cir., 39, Little v. F.2d 96 21, 401, 409; Taran on December 1937. States, $97.50 8 93 F.2d 59; Mad- States, Cir., 54, F.2d 8 88 accessory of crimes after the fact 7 46 delin v. United misprision deрendent and of felony being Co., Potteries United States v. Trenton subsidiary upon or offenses the indictment 700, L.Ed. 273 392. 47 S.Ct. 71 U.S. which the defendant tried alleged two 50 A.L.R. crimes in count. each L. Neal is re- John seriously principal, ferred to as or alleged most the who error one primary pressed attention, felony, one in- committed the upon our and and the the de- charged fendant is difficulty, dependent volving greatest relates to with the of- the sufficiency fenses. In each felony count the of the evidence a the to attribut- toed upon as- L. Neal August count. If this is that between conviction cither John (the 1937 of signment court date of error be sustained the the amendment to the robbery supra), overruling erred motion for statute defendant’s and Decem- 28, 1937, ber he judgment away and the must stole directed verdict and carried possession from the be In be un- reversed. that event will of the First National Bank and Trust Company other er- of necessary Minneapolis consider the to many requires thousands of question a considera- dollars. rors. This and of the of the indictment review tion In the first count the crime of which governmеnt’s evidence. defendant accused is he know- ing principal Neal are and had and committed John completed felony all to this above times material brothers. At described be- 7, 1938, January came Minneapolis, an on lived in Minnesota. aft- operated er the fact The defendant was married and in that he thereto aided and principal undertaking assisted the in secreting establishment. His broth- proceeds felony in de- fruits and by bachelor and lived of the er was a clan- $5,903 destinely placing employed had of home. been the stоlen mon- fendant’s ey bag living messenger golf quarters, of the his as a or the office thus clerk important suppressing evidence, of Line Soo railroad at to the end treasurer principal escape Minneapolis years might punish- for 32 to Decem- ment. February, ber in the United States District indicted In the second is alleged charged Court of Minnesota and ten January or about the defend- carrying away with stealing counts and misprision ant committed the of crime from the First Na- various sums felony knowledge full Company Minne- and tional Bank Trust felony by committed L. Neal con- he pleaded apolis. guilty counts Pie five cealed and failed to disclose and make years peniten-' in a and was sentenced to 15 such known might soon as as be tiary. predicated up- The indictment judges some one of the United the amendment Court District of Minnesota or to States 2(a) May Act of section Attorney General the United States 588b, Stat. U.S.C. U.S.C. § Attorney the United States or to or to original A. 588b. The statute made bank § persons authority. in civil other It is fur- robbery pertinent a crime. The charged ther took two the amendment аdded: shall “whoever steps conceal affirmative the crime com- carry away, with intent to steal take and by brother first, ohn: mitted con- he J any purloin, property any or or or golf cealed the stolen in a exceeding belong- of value tiling other quarters; and, second, bag living at he care, to, control, custody, or in the expunged from altered the account possession any management, bank, or Neal operated Funeral Home books shall fined than or im- not more by him entries showing investment prisoned years, not more tеn or than therein the stolen both.” moneys. jury The counts To warrant conviction indictment to which pleaded guilty on the first count of the on which indictment about 10:30 in cage to estab- called the teller’s burden copy (1) morning That obtained extra beyond doubt: lish reasonable deposit office slip had committed took it is, company completed felony charged, that of the treasurer of the railroad receipt August 24 and December made a record of deposit turned unlawfully and carried bank of which he 1937, he had deposit slip as nо- away from Bank auditor National First Minneapolis many Company of received Trust tice had been dollars; the defend- bank. The returned thousands auditor then slip as copy agent to serve ant had felony; receipt deposit. that hav- him for committed *4 knowledge, and ing such defendant aided many rent agents In sent instances the principal escape punishment the assisted to deposit bank collections with to the the by important suppressing directly to sending instead of such items him in he concealed which con- that company. The rent treasurer of the the large part pro- stituted a fruits and tfie had separately and an was enclosed item ceeds the offense. identifying indicating that on mark deposit was for the treas- was not for but To sustain a conviction count two teller company. of the The railroad urer misprision for it was incumbent bank the rent at the would turn over government prove beyond the to a delivery L. for to the items Neal to John Neal, (1) reasonable doubt that L. John when the bank called at treasurer John principal, the had and com committed mоrning. the pleted felony alleged January the to 7, 1938; (2) that the full had period approximately seven For fact; knowledge he failed preceding years immediately notify authorities; and he to the practice of tell- Neal made L. John steps two affirmative to conceal the took he made his usual ing the bank teller when principal, viz., (a) crime of the he con deposit general received call of the money golf of the stolen in a cealed thereof, agent part particular from bag, knowingly (b) and he altered and ex $97.50, money was rent and that instance books of the from the account punged should be turned to for de- over showing Home entries Funeral livery Neal to the treasurer. The statement which, therein, L. Neal false, relying investment was but the teller it would John of the was money so invested over demanded. The turn amount money. money over was not from turned taken particular by agent the funds remitted by the evidence introduced brief money "designated, generally from prove the to crime of deposit deposit cage. original at the tended estаb- to John by chang- bank slip held would then be following facts: lish copy which accordingly but not ed Neal, messenger clerk or L. as a John treasurer’s office. The Neal took to Treasurer of office the Soo kept. him he money He so received company, received a railroad Line the items thus abstract- kept account of an system its month. Under of $140 up his offense false covered en- and ed company railroad had doing business the deposit slips. forged Neal’s rec- and tries agents daily send their collec- station its money amount of showed thus ord deposit directly bank for to to the tions year period the seven him over exception company, with the credit $118,280. The bank’s record to amounted money they were instructed which rent $82,872.50. amount to be Dur- showed directly to the treasurer of the send to year entire amount taken ing the Minneapolis. agent company be- at $53,000, about and after was money sending deposit made a fore $19,000. 1937, approximately or quadruplicate one of he slip which re- express money, original authority L. Neal had no one tained. deposit directly bank, from the slip were copy sent withdraw to copy had no instructions sent bank teller company. over him. The the railroad turn auditor envelopes containing deposits were claims both L. Neal and de- ant authority every implied had morning to the teller in to handle the bank teller livered moneys way they did, but the evi- cage” at the bank. L. "railroad Neal jury $5,903 in an old require officers had found that he such as to dence placed had iron room box in so to find. John’s room. upstairs in his golf bag in a de- trial of the The evidеnce on the lived with he fendant tended to show that we think applicable both counts As parlor upstairs family his funeral substantial evidence Minneapolis. lived His brother jury the conclusion of the L. in- him. In 1935 he his business had guilty of fel corporated Funeral Neal the name him, ony charged against the de Home, president, his wife Inc. He as al fendant had fact treasurer, president, vice leged in the indictment. There is no claim Allen, secretary. employee, Otis or was that the defendant believed inform as his The defendant treated the business or ed that his brother earned paid officers own. He no salaries to the any means obtained the sums honest and he handled the himself. The which he contributed obligations of the business were in paid funeral or from home which he name, in- owned home. His family grocery bills. The close relation $2,385.46, come 1935 was and in ship precluded between the two brothers $2,739.15. property Yet he had excess *5 ignorance of others’ resources. His each usually of the amount of owned 1937, 28, conduct on and after December such moderate income. furnished concealing and his of information John’s family groceries amounting the for the proper subjects whereabouts were for the a week. also made invest- He $75 $80 jury, of consideration the and all cir the 1936, 1935, ments in During the business. together virtually cumstances com to the business the 1937 he contributed and pelled finding guilty knowledge. of $12,970.71 in various amounts and sum of States, Cir., 8, Kcliher v. United 1 193 F. times, during and he various withdrew 9; Cir., McDonald States, v. United 8 89 period $3,150, leaving sum of the same F.2d 128. $9,820.71. balance net question The serious under count one disappeared night L. of the indictment is whether there is sub- 27, a. of December 1937. About 2:00 m. stantial evidence to charge 28, 1937, morning of December the that the defendant aided and assisted the - premises $5,903 found on the principal escape punishment by sup- paper currency in an in old iron box. He pressing against evidence conceal- money placed removed the and it in an old ing $5,903 found in the old iron box in laundry bag placed which he closet. golf bag. charge The in the indictment questioned by When officers he admitted is that $5,903 defendant concealed only finding money. John’s which constituted part of the fruits evening 29, 1937, On the оf December proceeds princi- and offense bookkeeper the defendant called the for important pal and was against evidence employed the funeral home and him to de- proof The does show when him. lete Neal’s name from the books. $5,903 placed was in the old iron box bookkeeper rewrote about 30 sheets only was a month. John. John’s Over a having thereon, L. Neal’s name omit- period years ap- seven he stole ting the name substituting and other ex- $118,000. proximately During 1937 he planations for the items. The rewritten sum, $53,000 stole of this and August originals sheets and the were turned over year approxi- 24th he had taken secretary January Allen on to defendant’s mately $18,000 money amount. The 31, 1938, bookkeeper but the then took the August 24, 1937, stolen did not kept originals 17, them February until offense, a federal constitute steal- 1938. money prior ing to that date is not charged to The evidence discloses that the be a crime in the indictment. testimony knew hid- defendant’s is ant that when he 27, 1937, opened following December iron box but al- on December frequently by though paper examined аppeared federal in- contained in it vestigators denied all of his was covered with old a thick Early 1938, until layer January, whereabouts 1938. January, On dust. January officers, he directed an was turned over to the officer to place, deny hiding testimony do not arrest- defendant’s John’s ed. January On with reference to its told thé condition. The mon- It is further that the indict- bills and insisted ey of 813 one-dollar consisted $5,903 charges found fifty ment $5,090 ten, dollar five, twenty disappearance on room after bills. John’s evidence constituted tend to proof clearly does not against principal, admissible part $5,903 show felony charged against been tried proceeds of offense” “fruits or' is admissible and that therefore him, against money stolen is, theory would This defendant. August before after rather than regard allegation that which is consistent Evidence It surplusage. the fruit of the offense as "hypotheses proves nei with each two distinguish admissi- fails also to Company ther, v. Insurance Prudential bility against principal of evidence Cir., Febru King, 8 101 F.2d decided substantial and evidence which constitutes proof 25, 1939; substan ary all of the and when deрendent offense. inno is tial evidence as consistent plausible argument sufficiently This is duty of guilt, cence as it is with important, however, to make it ex- conviction, appellate reverse court to pedient question of wheth- examine the were Cir., States, Shama v. 94 F.2d United not, er or on the trial the record States, 8 4; Fulbright v. United this the same as the record States, 8 210; Planing v. United F.2d 21 case, found in the iron box Wright would be relevant evidence him. any pre Nor is there Cir., 227 F. proof sumption of money in the absence general rule in favor of ad- was a aft mission such stаted thus than that rather er in 36 894: has been “When C.J. *6 part money before that a of the stolen against and the accused stolen v. Des G.& Co. date. United States F. circumstantial, largely is it has been held ** * 273, Bank, 8 145 F. 279. Nat. Moines proper as in evidence admit showing * * * possible a motive for the crime. deny that does government The possession by accused upon proof this allegations and the money immediately shortly or after say correspond, but counsel point do not * ** stronger . theft and for reason Berger v. material the variance is not is such evidence admissible when is 82, States, 78, 55 S.Ct 295 U.S. United proof impecuniosity both ac- upon. 1314, is relied 79 L.Ed. posses- larceny cused before the is there of a material variance The test money sion a considerable for shall be accused “(1) to be stated person immediately circumstances definitely charges informed as to the afterward, as such a sudden accession may him, so he be enabled against by defendant, contemporaneous wealth and not be taken defense present his larceny money, strongly with the tends by the evidence offered surprise to connect him the crime. To contra- with may protected he be trial; (2) may this evidence show dict he had accused for prosecution the same another just to the theft. opinion that of the We offense.” are Jjs C» sf! instance is material and this variance in possession evidence of indictment informed the In short the prejudicial. The money by would a sum the defendant government immediately pre a part after theft raises prove sumption 24, found is 1937, and not that fact after stolen and that the de of the taken sometime part of that might be a years. was connected with the theft. The fendant preceding seven during defense, general rule foundation Under this alleged that the it been introduction of such evidence includes before that part of the was a date, proof “impecuniosity” of (1) altogether different from would theft, (2) just before the that it if were the defense (3) accession” of wealth con though the de the “sudden temporaneous Even afterwards. taken scription v. theft. O’Shea unnecessary in the indict were 169; States, Cir., People 6 93 F.2d governmеnt United devolved ment prove 393; 330, Connolly, States, 171 N.E. v. 253 N.Y. Potter v. United it as laid. Commonwealth, Ky. v. 154 159 Davis 39 15 L.Ed. S.Ct. 155 U.S. 607; State, 81 50 S.W. Perrin v. Wis. 214.
649 support guilty laid rule a verdict of p. 516; R.C.L. 17 N.W. fur- one of the indictment. Court adds The defendant’s Supreme by the down of show- motion as to should have been this count upon the burden ther necessary connection sustained. or natural some posses- defendant’s the sums count of indictment second taking. charged with he is those sion and charges 18 U.S.C.A. offense Title States, U.S. United Williams (Cr.Code provides 146), which § § In 97, 42 L.Ed. 396, 397, 18 S.Ct. “Whoever, having that: of the convicted defendant was cited cаse the murder, actual commission of the crime charging extortion. indictment under an felony cognizable by or other the courts gen- under the was introduced Evidence States, of the United conceals and does during showing that above rule stated eral may not as soon as be disclose and make when the period three months of about judges known the same to some one of place taking extortions persons military other in civil or au- although deposited the bank ant thority States, under the United shall be only month. fined $500, imprisoned not more than or conviction, reversing judgment of not more years, than three or both.” rule statement of connection with the elements the offense un “no above, quoted observed that the court der the are statute two: There must be deposited corresponded in amount so sum something a concealment of such as charged with the sums which he was suppression posi of the evidence or other having criticized extorted.” This case is tive act a failure to disclose. Wigmore in 1 Prof. Evidence § Proof of only, one of the elements “Another rule states thus: both, not of not sufficient to mode, however, making the fact conviction. Bratton v. United money-possession show its is to relevant States v. before possession i.e. to show that sudden Farrar, D.C.Mass., 38 F.2d 517. The person without taking time of sufficiency charge assailed, is not money, immediately time while claimed that defendant did not hy- deal; great he had this reduces the be”; fail “as may disclose soon as acquisi- pothesis such as involve sudden he did in govern as shown fact acquisition *7 tion, thus be- a dishonest ment’s evidence disclose all that he knew hypothesis. prominent natural and comes a fourth, fifth January, sixth possession of un- such On conditions 1938. The evidence also shows that he money becomes relevant.” identified made no disclosures until after he had Upon government in the trial frightened been doing into so the fed this case in evidence troduced facts eral officers who investigating presumption destroy fact and which crime. might He given have them such $5,903 irrelevant. finding render the information December, on the 28th of While that shown of doing but instead so he “threw salary of Neal, receiving L. eyes” they John dust in their when interviewed only that month it was also shown $140 a gave misleading him and them informa during preceding years he had seven Under ques tion. the evidence was a approxi to his received in addition jury for the tion determine whether he mately $100,000, during the 9 and that may made the “as disclosure soon as be” to August preceding months in satisfy requirements law. day. approximately come had been We next charge consider the in the in- acquisition of wealth Here was no sudden dictment the defendant did two af- August after It is true his in 24th. firmative acts “conceal” the crimе of come date was the result principal. The charged first act stealing, a fed stealing but such was not $5,903 golf that he concealed bag, in a crime; possession eral moneys unlawfully “which and felonious- August 24th, proof without ac ly had been away taken and carried by the quisition date, would after that not raise Neal, said same, L. intent steal the John presumption acquisition its was un possession from the bank; of” the lawful, or that it was a of the fruits and, second, he knowingly altered and of his federal offense. expunged from the books of account of As the stood record at the close Neal the the Funeral Home entries showing evidence there was no evidence the moneys by relevant investment of L. John existed, such carried out unlawfully that is not been intent moneys had which and carried possession of not under statute. away an offense from the to steal with intent the bank few argues for a John same. days after December Neal, and act, defend- ant L. concealing that the aided in The first misprision of guilty that he is therefore ant by concealed did felony. L. shows that evidencе above, may not, hiding and 1937,is as shown know where December escaping; supported have with him about the evidence. advised not officers is failure to but sufficient alone to constitute inform alleged affirma- second Neither is the a crime to conceal the defendant tive act Bratton statute. supported by sub- L. Neal crime of John supra. charge is that That stantial evidence. pro- government having failed to the books expunged from any competent duce evidence to sustain L. showing the entries funeral home one оf the essential elements of the offense moneys in of the stolen Neal’s investment charged in two the indictment only entries business. There are two motion for a directed should have verdict showing books investments been sustained as to count also. Au- funeral business after gust of these shows One Because evidence fails he “advanced” charges October in each count of the indict- he “ad- 19th the other that October 'judgment is reversed and the ment the There further sum grant $100. vanced” is. remanded with instructions to connecting these whatever evidencе no a new trial. unlawfully taken sums with bank; and the away from the and carried WOODROUGH, Judge (dis- Circuit pre- raise sufficient to amount senting). honest sumption were not fact that -defendant It seems to me salary. savings from- his indicted, fairly justly properly tried statute. convicted under The basis U.S.C.A., Title Criminal Section charge is founded is which the Code, Section 333. in did on bookkeeper to delete clearly proved struct It was that defendant’s books. in the name from the entries stealifig brother had been small Neal’s sums by appeared con or his initials from Minneapolis day His of cash name 30 day on about years entries putting certain course of nection book pocket. books. The sheets in his spent, different Most of it he *8 home with keeper caught took these sheets when he was still had substituting under copied for the name hidden his bed them in tin box. The explana cognizant of his being L. Neal other defendant brother’s or initials under fees” or “W. took the from the bed such as “administration tions golf bag them to to Neal.” He returned order Squire secreted it and conceal that of the funeral home on to his brother’s crime. office clue them Otis Al and delivered to defendant made the That True, original fact, sheets He then took the I see it.1 the fed- as len. after the “accessory,” the defendant’s without does not define with him eral statute home copy long second meaning made a is settled knowledge and common but the originals knowingly were to Any returned done act to aid a law. himself. placed February person cheat law either of his felon to the office they remained and of his crime books, fruits constitutes the or the in the accessory. gist unaltered. The рroduced at trial actor an the of- were original law, the intent to cheat the did not direct fense is infinitely. destroyed, although may'vary Where book acts fel- sheets larceny suggested ony be burned. An I keeper government, to the accessory conceal from the no reason restrict to i'f see intent fering punishment IV, “Any makes the 1 Blackstone Com. Vol. 37: assistor an accessory.” given to a felon assistance whatever to being apprehended, his tried or hinder suf- pile receiving “important identified stolen coins statute money and bills was evi- jury. been stolen. dence” for knowing to have may Any sufficewhere act cheat the law I dissent because I think the conclusion proven. gist intent—is unduly salutary —the restricts the broad acces- sory against statute helping thieves cheat very case this indictment in the law. particular I think exactly carefully drawn to accord there are extenuating circumstances but knew pleader established facts. The ' guilt proven. identity every stole dollar John it, because as soon stole lost immediately put as stealings pockets in his his alreаdy filled and none well that was marked. That so, and being the fact spent many always considered that John earned, can no what he I think of times any way fund or to describe better posses- of it remained John’s proceeds” County sion than call it the “fruits or BAILEY, Treasurer, et al. stealing. of his ordinary acceptation it was in MEGAN. That is what those are the No. 11242. applied appropriate descriptive words Appeals, Eighth Circuit Court of Circuit. gains ill-gotten the indictment April 6, 1939. hid under the bed feloniously concealed from law. argued It cash under “important bеd was not evidence” John’s indictment, him as in the True, seems to me was. but that it stealings criminal confessed requires more than law money confession. bed hidden considered the records and tend- the confessions corpus establish delicti ed offense. John’s lay- mind It would man, and I on a think it would criminal suddenly acquir- Not because was trial. ed or unaccounted for wealth in John’s presence possession, but because the bed there under the corroborat- ed tended bear out the amazing story of stealings and what he had with the Nearly done loot. all of great $110,000 which sum of There without trace. was noth- gone figures show for it but some ing to But the cash under the bed paper-. *9 touch visible to the tangible corpus delicti whether eye. It prosecuted stealings for the state be- the amendment the federal fore robbery act or the federal committed thereafter. In either those proof relevant would that over spent above what had earned was a remnant hidden under the bed honestly pro- earned but “fruits and not ceeds” of his crime. His restoration of caught merely by he was writ- document. But the ten itself in