Fulton v. United States

45 App. D.C. 27, 1916 U.S. App. LEXIS 2651

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 3, 1916
• Docket: No. 2889
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

To avoid needless repetition, we will state the various assignments of error as we reach them, and will first consider the assignment relating to the failure of the members of the jury commission to take an oath as such. Sec. 198 of the Code [31 St at. at L. 1222, chap. 854] constitutes the clerk of the supreme court of the District, the United States marshal, and the collector of taxes for the District, “a commission to from time to time make the list of jurors for service in said court,” etc. Nowhere in the Code is there a provision requiring these commissioners to take oath as such, but under sec. 174 the clerk of the supreme court is required to take the oath prescribed by law for the clerks of the district courts of the United States, and by sec. 186 provision is made for the taking by the marshal of the oath required by the general statutes of marshals of the United States. Under the order of the commissioners of the District, made in pursuance of law, the collector of taxes is required to take oath for the faithful performance of his duties of his office. Each of these officers took the oath required of him. By sec. 198 their duties were enlarged to the extent specified. That section created no new office, but merely required the three officers named, who already were in office and under oath, to perform this additional duty. Clearly, therefore, the taking of' an additional oath would serve no useful purpose. The service required of these officers under sec. 198 is as much a part of their duty as any other service rendered by them. We find no merit in this assignment. See State v. Starr, 52 La. Ann. 610, 26 So. 998.

At the close of the government’s case defendant moved that it be required to elect upon which of the two counts of the indictment a conviction would be claimed, which motion the court denied, saying: “You cannot require them to stand on one of several varying, methods of charging the same offense.” In his charge the learned trial justice directed attention to the fact that the first count charged that the property converted was money belonging to Erederick M. Smith, and that the third count charged that the property converted belonged to Smith and the other persons named, and stated what was fully understood and conceded, namely, that “the offense with which the defendant Eulton is charged represents one transaction.” The jury returned a verdict of guilty under both counts, whereupon defendant moved in arrest of judgment upon the ground, among others, that the verdict was so inconsistent and contradictory that no valid judgment could be entered thereon. The denial of this motion, as well as the denial of that made at the close of the government’s case, is assigned as error. The first may be disposed of summarily, since, as the trial justice suggested, the prosecution is seldom if ever required to elect upon which of several counts charging the same offense, but in various ways, it will stand. Herman v. People, 131 Ill. 594, 9 L.R.A. 182, 22 N. E. 471. It might well be that to insist upon such an election would result in a failure of justice, owing to the fact that the jury might take a different view of the evidence than the prosecuting officer.

The second contention presents greater difficulties. If this money belonged to Smith individually, it could not have belonged to him and the other persons named. And yet the jury has found that it could and did. The court properly told the jury that the offense charged represented a single transaction, but the verdict of the jury convicts defendant of two. The government contends, first, that because a portion of the sum named in the indictment belonged to Smith and the remainder to the other persons named, defendant was rightfully convicted under both counts. There were seventeen persons, including Smith, in whom ownership was alleged. Therefore, under the government’s contention, defendant might have been convicted under seventeen counts, instead of two. This contention cannot be upheld. The indictment charged the embezzlement of a lump sum, and the proposition is too plain to admit of argument that if the jury had found that this sum belonged to Smith, such a finding negatived the possibility of ownership in anyone else. On the other hand, a finding that it belonged to Smith and the other persons named in the third count of the indictment negatived the averment in the first count that it belonged to Smith alone.

The government’s next contention is that, inasmuch as the sentence imposed was within the punishment prescribed for the crime charged in either of the two counts, the judgment should be upheld. This contention, too, must fail. While it is the rule in the Federal courts that in a criminal case a general judgment upon an indictment containing several counts and a verdict of guilty on each count will not be reversed on appeal if any count is good (Claassen v. United States, 142 U. S. 140, 35 L. ed. 966, 12 Sup. Ct. Rep. 169; Evans v. United States, 153 U. S. 584, 38 L. ed. 830, 14 Sup. Ct. Rep. 934, 9 Am. Crim. Rep. 668), this rule obviously does not apply in a case where the verdict was upon counts charging distinct and inconsistent offenses. Davis v. United States, 37 App. D. C. 126; Com. v. Haskins, 128 Mass. 60. In the Davis Case there were counts in the indictment which charged the defendant with having obtained money by false pretenses, and other counts charging embezzlement of the same money, and the verdict was guilty as to both. After pointing out the inconsistency of the verdict, we said: “It is not the province of the court to conjecture which theory the jury would have adopted had their attention been-drawn to the matter. That is a question for their determination.” So here, it is no answer to say that because the jury probably would have returned a verdict under one of the two counts, defendant was not harmed. He was entitled to a determination of this question of fact by the jury. Moreover, while the sentence imposed does not exceed the maximum penalty possible under a conviction upon either count, it is mere conjecture to say that the court was not influenced by the double conviction. We conclude that the court committed error in permitting the jury to return a verdict of guilty upon both counts.

During his argument to the jury Mr. Laws, an assistant district attorney, said: “Here is presented in this court room what purports to be a carbon copy of a letter written to Mr. Frederick M. Smith, Donnelly, Minnesota, dated November 4, 1913. * * * We objected to this when it first came out because we believed and we knew that it was a statement gotten up by this defendant.” Thereupon the following colloquy took place between respective counsel and the Court:

Mr. David: I object to that statement.

Mr. Lambert: Counsel is undertaking to testify in this case.

Mr. Laws: I submit I have a right to argue that.

Mr. Lambert: Toil have not any right to state what you say you know as a fact.

The Court: No, not what you know; but you have a right to say what you think the reasonable inference is.

Mr. David: I ask that the jury be instructed to disregard what counsel has said.

Mr. Laws: They understood what I meant.

Mr. David: I ask for a ruling on that.

The Court: The court will say to the jury that counsel’s

belief is something that the jury have nothing to do with.

Mr. Lambert: It went further than that. He said “We know this,” and “We know that.”

The Court: Of course counsel cannot be very critical of the actual use of mere words in the English language. What the court says to the jury is — whether it is a belief or knowledge on the part of counsel — that here is a situation from which you as reasonable men will infer such a situation. That is all that the jury can consider in connection with counsel’s statement.

Thereupon Mr. Laws said: “Of course I was not in the office, and did not see him write that out a few days ago — .” At this point counsel for defendant interposed an objection, and moved that a juror be withdrawn. In overruling the motion the court said: “Of course, the jury are to consider that in all this argument, all counsel is doing is arguing the reasonableness of the proposition he advances, and that it is not based upon any knowledge he has, because he cannot have any.”

In our view, the above language was highly objectionable and prejudicial, and the action of the court fell short of the requirements of the situation. The letter to which counsel for the government referred, and which he stated to the jury he not only “believed” but “knew” had been recently gotten up by defendant for the purposes of the trial, had been introduced in evidence by the government itself. Upon what theory a party may introduce evidence generally, and then impeach it, has not been explained, and does not suggest itself to the court. But the vice of these remarks goes deeper than that. The district attorney and his assistants are sworn officers of the law, and charged with grave responsibilities. It is natural and proper that they should be regarded with respect and confidence by the public in general. It is still more natural that jurors in criminal cases should regard them in much the same' light that the court is regarded, and that their attitude should exert a more or less potent influence, in the determination of the grave issues presented. Knowing his responsibility, and knowing that the defendant was entitled to have the issue determined upon the evidence and that alone, the assistant district attorney stepped aside from the office of counsel for the government, and became a witness for it. The language used admits of no other inter- • pretation, and must have been so understood by the jury. Had the court promptly rebuked counsel, and counsel had disclaimed any personal knowledge of the facts, perhaps the error then was capable of correction; but that was not done. On the contrary, there was no withdrawal of the language, but rather a repetition of it. Even some- of the language employed by the court accentuated it, for the court said: “What the court says to the jury is, whether it is a belief or knowledge on the part of counsel, — that here is a situation from which you as reasonable men will infer such a situation.” We cannot escape the conclusion that at the close of the colloquy between the court and respective counsel, the impression had been left with the jury that the assistant district attorney personally knew that this letter, one of the most important items of evidence in the case, had been fraudulently prepared by the defendant for the purpose of the trial. And even if a doubt existed, it would be our duty to give the benefit of it to the defendant.

As another trial of this case is probable, it is proper for us to state that in our view'the court committed error in failing to admit in evidence the copy of the above letter of November dth, 1913, when it was offered by defendant. Its materiality is of course conceded. Smith testified that “he had not received a letter of that kind;” that he would not be certain he had preserved and turned over to the district attorney all the letters he had received from defendant; that he “had brought all the correspondence he could find.” The first step in laying the foundation of this copy was therefore taken. The second and remaining step was fully taken, we think, by the testimony of defendant and Mr. Bennett. Mr. Bennett was an entirely disinterested witness, and his testimony is consistent and his credibility unassailed. To rule that this testimony did not prima facie make a case of the mailing of this letter would amount to a denial, in almost every case, of the right to introduce a copy. Had Mr. Bennett testified that he remembered distinctly actually dropping this particular letter in the mail chute, it is not likely that anyone would have believed him. He did testify that he remembered writing it, and that there was no deviation from the usual custom under which all letters were taken to defendant for his signature immediately upon their being written out, after which the witness “immediately stamped, put them in envelopes, and sent them off.”

The introduction of this letter by the government later, during defendant’s cross-examination, did not cure the above error. Defendant was entitled to have this vital piece of evidence go to the jury as a part of his defense. The question as to its authenticity was for the determination of the jury, but it was excluded by the court upon the theory that not even a prima facie case of mailing it had been made Oiit. And when we come to consider the subsequent attitude of the government concerning it, the error is still more apparent, for after encompassing its exclusion as evidence for the defendant, the government introduced it to contradict and prejudice him. Thus his shield was seized, beaten into a sword, and turned against him.

The defendant requested the court to instruct the jury that if they should find that he appropriated the money mentioned in the indictment to his own use, in the belief that Smith had consented or assented to his using the same, and that he did not at that time intend- wrongfully or fraudulently to convert it, then such appropriation was not embezzlement as charged, and no subsequent act of his would change the character of the original appropriation. This request was denied, but the court in the charge told the jury that “the wrongful or fraudulent conversion and appropriation of money as property to one’s own use is more than the mere conversion and appropriation;” that the law contemplated that such conversion and appropriation must be accompanied with an evil intent. Later on in the charge the court said: “It is then for you to determine whether there was a wrongful or fraudulent conversion, and that brings you to what is fundamentally the defense in this case; * * * and the defense is that there was not a fraudulent conversion of that money, because when this money was received, on the 10th and the 13th of November as to the two separate checks, that there had been, some months prior thereto, an arrangement between the witness Frederick M. Smith and the defendant Fulton by which the defendant could borrow that money between the time it was collected and the time he would repay it to him.” After pointing out that if such a “contract or understanding or agreement of any sort” should be found to have existed, subsequent failure on the part of the defendant promptly to remit would not amount to embezzlement, the court said: “Upon the other hand, it is for you, upon all the circumstances of the case, to determine whether or not at the time the defendant Fulton received, in November, this money as the attorney and agent of Frederick M. Smith and the others, there is left in your mind a reasonable doubt as to whether or not there was such an agreement. It is for you, as the judges of the facts in this case, so to determine, and if you find that there was not, from all of the circumstances, facts, and evidence, including the letters and the testimony of all the witnesses, both for the government and the defendant, ■ and that that money was received by the defendant, Fulton, without such an agreement actually having been made, and the cash and the money then converted to his own use, and thereafter used, then you have the right upon those facts to find that it was a fraudulent conversion, and if you shall so find it would be your duty to render a verdict of guilty as indicted.”

In Masters v. United States, 42 App. D. C. 350, Ann, Cas. 3916A, 1243, in an opinion by Mr. Justice Van Orsdel involving an interpretation of the very statute upon which the counts of this indictment were based, we said: “Before there can be a conversion of the property of another, there must be an intent on the part of the doer of the act to convert the property to his own use without the consent of the owner. State v. Silva, 130 Mo. 440, 463, 32 S. W. 1007. But a wrongful conversion implies a conversion by the doer of the act without color of right, and with the evil intent of converting the property to his own use. The intent to -wrongfully convert the property of another implies more than the intent to merely convert. It implies a mind at fault, an evil mind, capable of intentionally committing the offense here defined by the statute.” In Wadley v. Com. 98 Va. 810, 35 S. E. 452, which was a trial under an indictment for embezzlement, the court was asked to instruct the jury that before they could convict the defendant they must find that the conversion was accompanied by a criminal intent,, “and not under an honest belief that he (defendant) had a bona fide claim of right to do so.” The instruction was modified by the striking out of the words quoted. This the court characterized as error-, saying: “In embezzlement there must be a fraudulent purpose to deprive the owner of his property, and appropriate the same. If property is converted under a bona fide claim of right, the conversion is not embezzlement. If, therefore, upon another trial there should be evidence tending to show that the prisoner acted under an honest belief that he had a bona fide claim of right, instruction No. 3, as asked for, must be given.”

Under the instruction as given by the learned trial justice in the present case, the letter from the defendant to Smith on November 4, 1913, was practically withdrawn from the consideration of the jury, even though they should find that it actually was written and sent as testified to by the defendant and the witness Bennett, for the court specifically limited the jury to a determination of the question whether, some months prior to the recovery of this money by defendant, an arrangement had been entered into between the defendant and Smith, whereby the defendant became entitled to use the money. Not only this, but the final words of the court were that if the jury should find that the defendant, “without such an agreement actually having been made” used this money, it was the duty of the jury to return a verdict of guilty. That is to say, the jury in effect were told that before .they could consider the letter of November 4th they must find not only that it was mailed, but that it actually was received by Smith. Here was error, for if the letter was mailed, and the defendant thereafter acted under the honest belief that it had been received, there was lacking the essential element of the crime charged, or evil intent, and the verdict should have been “Not Guilty.” The evidence before the jury warranted a substantial compliance with the prayers offered.

The next assignment of error relates to the refusal of the court to instruct the jury that if they believed, from the evidence in the case, that there was a conflict or inconsistency in the testimony 'of any witness or witnesses upon any material fact, and that, by reason of such conflict or inconsistency, they were not satisfied beyond reasonble doubt as to what the fact or truth of the matter was, they should give the benefit of such doubt to the defendant, and to the action of the court in cautioning the jury as to the testimony of the defendant. In his charge the learned trial justice, after telling the jury that if they should find that the defendant used the money without an agreement actually having been made with Smith they might find a fraudulent conversion, said that they should look to any interest the respective witnesses had in the trial or in its results. The court then said: “Where a witness has a direct personal interest in the result of the tidal, the temptation is strong to color, pervert, or withhold the facts - the law permits the defendant, at his own request, to testify in his own behalf. The defendant, Fulton, has availed himself of the privilege. His testimony is before you, and is to be considered along with the other evidence in the case. The deep personal interest which he may have in the result of the case should be considered by you in weighing his evidence, and in determining how far or to what extent it is worthy of credit.” No other witness was mentioned in ibis connection.

In Hicks v. United States, 150 U. S. 442, 452, 37 L. ed. 1137, 1141, 14 Sup. Ct. Rep. 144, the court said: “It is not unusual to warn juries that they should be careful in giving effect to the testimony of accomplices; and perhaps a judge cannot be considered as going out of his province in giving a similar caution as to the testimony of the accused person. Still, it must be remembered that men may testify truthfully although their lives hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the right to testify in his own behalf. Such a privilege would be a vain one if the judge, to whose lightest word the jury, properly enough, give a great weight, should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability. The wise and humane provision of the law is that The person charged shall, at his own request, but not otherwise, be a competent witness.’ ” While in Reagan v. United States, 157 U. S. 301, 305, 39 L. ed. 709, 710, 15 Sup. Ct. Rep. 610, it was again ruled that it was not error for the trial court to direct the attention of the jury to the interest which any witness, including of course the defendant, may have in the result of the trial, as a circumstance to be considered in determining the credence which should be given to his story, the court was careful to point out that the limits of suggestion are the same in respect to the defendant as to the other witnesses.

In the present case the determination of the question of the guilt or innocence of the defendant depended almost entirely upon whether the jury believed the defendant and his witness Bennett, or the complaining witness, Smith. It is said that the testimony of the defendant was inconsistent with his conduct, but no one can read this record without reaching the conclusion that the testimony of the witness Smith on its face is contradictory and unsatisfactory. If the statement contained in the letter of December 11, 1914, which he testified he wrote the defendant after consulting with his attorney in Minnesota, is to be accepted as true, he was himself apprehensive of trouble because of conduct which he apparently realized was full of inconsistencies. And yet the jury in 'effect were given to understand that the defendant was the only witness who had a deep personal interest in the result of the trial. Grant that his interest was greater than that of any other witness, he should not have been singled out as the only witness whose testimony deserved close scrutiny. If something more than a general caution was demanded, the attention of the jury should also have been drawn to the interest of the witness Smith.

We think the promissory note which the defendant gave Smith on December 7, 1914-, should have been received in evidence, as bearing upon the question whether the relation between Smith and the defendant at the time was that of debtor and creditor, as claimed by defendant, or attorney and client, as claimed by Smith.

Some fault is found with the court’s charge concerning the burden of proof and the presumption of innocence. It is enough to say that there was a substantial compliance with the rule laid down in Agnew v. United States, 165 U. S. 36, 51, 41 L. ed. 624, 629, 17 Sup. Ct. Rep. 235, and in Holt v. United States, 218 U. S. 245, 253, 254, 54 L. ed. 1021, 1030, 1031, 31 Sup. Ct. Rep. 20, 20 Ann. Cas. 1138.

There are other assignments of error, but we have found them so devoid of merit as not to justify discussion.

The judgment must be reversed and the cause remanded for a new trial. Reversed and remanded.