106 F.2d 982 | 10th Cir. | 1939
Parker Mitchner Reavis, Johnnie William Smith, and Marvin Arthur Carroll were indicted in two counts. The first charged that they formed a conspiracy to have in their possession and under their control counterfeit coins of the denomination of 50 cents, and to attempt to pass, utter and sell such coins as true and genuine; and the second charge that they had in their possession eighteen falsely made, forged and counterfeited coins in resemblance and similitude of genuine coins of 50 cent denominations. All defendants were found guilty. Reavis was sentenced on the second count to ten years in the penitentiary and to pay a fine of $500, and he was placed on probation on the first count for the period of five years to begin at the expiration of the sentence on the second count or upon his release from custody under such sentence. . Carroll was sentenced on the first count to a term of two years .in the penitentiary, and he was placed on probation on the second count for a term of, five years to begin at the conclusion of the sentence on the first count or upon his release from custody on such count. The record does not show what disposition was made of Smith. Reavis and Carroll appealed.
It is contended that the evidence was insufficient to establish the conspiracy laid in the first count of the indictment, or to connect either of the appellants with such a conspiracy. There was evidence which tended to establish these facts. Carroll went into a sandwich shop in Kingfisher, Oklahoma, about 3:30 o’clock in the afternoon of October 12, 1938, ordered a 5-cent package of tobacco, and tendered a 50-cent coin in payment. The clerk examined the coin, stated that he thought it was counter
The crime of conspiracy is in essence two or more persons combining and confederating with the intent and purpose of committing a public offense by the doing of an unlawful act or the doing of a lawful act in an unlawful manner. It is not essential that the agreement be in any-specified form or that any particular words, be used. It is enough if the minds of the parties meet and join in an understanding-way to accomplish a, common purpose. A conspiracy is rarely susceptible of ■ direct proof as conspirators seldom reduce their agreements to writing or make public their unlawful plans. But direct proof is not. necessary. The offense may be proved by-circumstantial evidence. It may be deduced', from statements, acts and conduct of the parties. Telman v. United States, 10 Cir.,
Here the three defendants were in the same town on the same afternoon. At about the same hour Reavis and Carroll each purchased a 5-cent package of tobacco and sought to pay for it with a counterfeit coin of the same denomination. Each said substantially the same thing when the coin was rejected. Each produced a genuine 50-cent coin, paid for the tobacco and left. Reavis purchased merchandise elsewhere in the town and counterfeit coins were discovered in the cash registers at the close of business that afternoon. Merchandise found in his car immediately after the arrest was identical with that purchased. Reavis and Smith left town together while Carroll departed alone. But they all went in the same direction and all reached the west part of town. Carroll had thrown away the counterfeit coin before his arrest. Reavis and Smith threw theirs away while the officer was attempting to apprehend them. Reavis and Smith stated that all three of them came to town together in an automobile. The statement was made in the presence of Carroll and he did not deny or challenge it. And the things found at the home of Reavis indicated convincingly that counterfeit coins had been made there. These facts and circumstances and the reasonable deductions to be drawn from them were abundantly sufficient to warrant the jury in finding that the three conspired and confederated together as charged in the first count of the indictment. Furthermore, only the evidence submitted by the government is in the,record. The defendants presented evidence but none of it is before us. It is stated in the brief of appellants that Reavis and Smith testified in their own behalf but none of the testimony is in the record. It may be that their testimony or that of other witnesses for the defendants contained outcroppings which tended strongly to strengthen the evidence of the government. The contention that the verdict of guilt on the first count is not supported by adequate evidence is without merit and cannot be sustained.
It is urged that the testimony of the secret service agent that Reavis and Smith stated to him in the presence of Carroll that the three of them came to town together and that Carroll did not deny the statement was inadmissible and prejudicial to Carroll. The argument is that a person under arrest on a criminal charge is not called upon to deny or contradict statements of others made in his presence tending to connect him with the offense, and that such statements though not denied or contradicted by him are not admissible against him. The contention is met with two obstacles. First, no objection was interposed to the testimony at the time of its admission. The statement is made in the brief of appellants that the testimony was admitted over objection but the record fails to support the statement. The record is barren of any objection whatever. Ordinarily a defendant in a criminal case cannot remain "silent when evidence is offered against him and thereafter be heard to complain in respect of its admissibility. Such a quiescent attitude constitutes a waiver of the question. Furthermore, the testimony was clearly admissible as against Reavis and Smith, and it was the duty of Carroll to request that it be limited to them if he so, desired. No such request having been made in any form, he cannot be heard to complain on appeal that the testimony was inadmissible and prejudicial as to him. Troutman v. United States, 10 Cir., 100 F.2d 628.
Finally, it is argued that the judgments and sentences are cruel, unusual, and excessive. But the fixing of penalties for criminal offenses is a legislative function, and a sentence within the limits of the statute which has been violated will not ordinarily be disturbed on appeal for being excessive, cruel, or inhuman. Martin v. United States, supra.
The judgments are severally affirmed.