EVAN A. EVANS, Circuit Judge.
This prosecution grew out of a post office burglary at Alton, Illinois, May 12,1924. Defendants were charged, in an indictment containing eight counts, with feloniously breaking into a post office with intent to commit larceny, with intent to steal postage stamps, and moneys, and property of the United States, with intent to damage and destroy certain doors, safes, and vaults in the post office, with having stolen thirty-three thousand eight hundred sixty-eight dollars and sixty-nine cents ($33,868.69) in stamps and money et cetera. They were convicted on three counts. Each was sentenced to serve a term in the penitentiary.
They here insist that the evidence is insufficient to sustain the conviction. Other assignments of error are presented, but they are not seriously urged.
They also present certain affidavits upon which they predicate a motion for leave to return the record to the District Court that they might move that court to set aside the verdict and grant a new trial because of the newly discovered evidence set forth in the affidavits.
Inasmuch as the contention that the evidence is insufficient to support the verdict is based upon the weakness of the testimony of an accomplice named Merrill, and inasmuch as the affidavit upon which the motion to return the record is based is one wherein Merrill disputes his oral testimony, it becomes necessary to set forth the evidence rather elaborately.
On May 12, 1924, the United States post office at Alton, Illinois, was burglarized and $33,868.69 in stamps and money taken from the safe. The safe was blown open by placing soap around the door and pouring in nitro-glycerine. The acetylene tank, the claw-bar and the tamping pick were left in the post office. The burglary occurred about 2 a. m., Monday morning.
Defendants resided in the vicinity of Alton or had so resided for years back. They were all well acquainted, and had been for years.
Defendant Larrison was 35 years old and had operated a soft drink parlor known as the Cadillac Bar. His place of business had been closed upon the motion of the government due to violations of the National Prohibition Act.
Defendant “Jackie” Adams was a professional safe blower residing near Chicago. He hailed from Alton. He did not testify.
' Defendant Joseph Melling did not testify.
Defendant Robert • Dooling was an ex-soldier who suffered disabilities during the war and received disability insurance. He testified and denied his guilt.
Defendant Joseph Marino in the summer of 1924 conducted a pool room. In 1924 he Was indicted for murder.
Defendant Joseph Meyer was a saloon keeper and, after the prohibition amendment became effective, conducted a so-called soft drink parlor which was closed by order of the court upon complaint of the government. Thereafter he was in the automobile, tire, and accessory business and “ran a blind pig.”
Benjamin Simon’s occupation at the time of the burglary was not given, but previously he had worked as hod carrier, boiler maker’s helper, had been a bar tender and was a soldier in the late war.
The two principal witnesses for the government admitted the existence of penitentiary records. One was James Kirby, who stated that he had completed three penitentiary sentences, one in California and two at Leavenworth. He was under a fourth sentence and serving his time in the Federal Penitentiary when he testified in this case. He stated that while being taken to the penitentiary the last time he jumped from the moving train and escaped. He shortly thereafter appeared at Alton. By profession he was a safe blower. He went to the Cadillac Bar, where Larrison invited him to join the party that was about to burglarize the post office. He was told that they were looking for a “Pete” man, meaning a safe blower, and he promptly accepted the invitation.
Shortly thereafter Kirby went with Merrill (alias Sturm) to the post office to look over the ground and examine the safe. A few days thereafter he was captured by the federal authorities and taken to the penitentiary. His guilty participation in the burglary came to an end.
George Merrill (alias George Sturm) was the other accomplice who testified at length upon both trials. He likewise made certain affidavits — one for the defendants upon which they ask that the record be returned to the District Court; the others for the government wherein he states he was induced for a money consideration to make the affidavit for defendants which in his two later affidavits he says was false.
Merrill is by occupation a thief; his residence for about 10 years prior to the trial, the various jails. He could not remember all the jails he had dwelt in. While stealing was his occupation and the jail his abode, he, boasted of having engaged in other criminal transactions. He-testified that he accompanied Kirby to the post office to view the safe and to study the lay of the ground.
After Kirby was captured and taken to the penitentiary, the plans for the burglary were stayed while the parties searched for a new “Pete” man. Defendant “Jackie” Adams was finally selected and Simon and Merrill interviewed him. He hesitated at first, saying “he did not want to fool around with any small stuff.”
The next night, however, he appeared at the Cadillac Bar and joined in the enterprise. Defendants Merrill, Meyer, Dooling, Larrison, Marino and Simon were all present at this meeting. Melling arrived a little later. The plans were discussed and matured.
Merrill further testified that ail expected the safe would produce a large sum of money ($90,000) — a pay roll shipment of money believed to be in the post office safe at the hour chosen.
On the evening chosen, the parties assembled. Melling furnished the car. Merrill was one of the outside watches — Simon, Larrison and Adams entered the post office. Dooling acted as another outside guard. About 2:35 the parties came out of the post office and the car was driven to Marino’s and the stamps were “dumped” on the table, the amount being over $35,000. A short time thereafter some of stamps were sold by Larrison, who divided $5,000, $200 being paid to Meyer, and $800 being paid to all of the others, except Marino, who refused his share.
° Defendants offered little or no testimony outside of their own statements. No character witnesses were offered by any of them. Several of them did not take the witness stand.
In corroboration of Merrill’s testimony it appeared that a witness, March, testified that he was in the automobile business; that about ten days after the burglary Larrison sold him an acetylene torch; and witness sold it to a garage man by the name of Gerson. Subsequent to the indictment, defendant Meyer went to March and asked him if he had bought a torch from Larrison. March replied that he did not care to discuss the matter. A couple of weeks later, defendants Meyer and Marino sought March and asked what became of the torch that he had bought of Larrison. March replied that he did not care to discuss the matter, whereupon Meyer said, “You-you, are just as guilty of this as I am.” Gerson testified that the torch offered in evidence was the one he bought from' March. The torch was such a one as was used in blowing the safe.
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EVAN A. EVANS, Circuit Judge.
This prosecution grew out of a post office burglary at Alton, Illinois, May 12,1924. Defendants were charged, in an indictment containing eight counts, with feloniously breaking into a post office with intent to commit larceny, with intent to steal postage stamps, and moneys, and property of the United States, with intent to damage and destroy certain doors, safes, and vaults in the post office, with having stolen thirty-three thousand eight hundred sixty-eight dollars and sixty-nine cents ($33,868.69) in stamps and money et cetera. They were convicted on three counts. Each was sentenced to serve a term in the penitentiary.
They here insist that the evidence is insufficient to sustain the conviction. Other assignments of error are presented, but they are not seriously urged.
They also present certain affidavits upon which they predicate a motion for leave to return the record to the District Court that they might move that court to set aside the verdict and grant a new trial because of the newly discovered evidence set forth in the affidavits.
Inasmuch as the contention that the evidence is insufficient to support the verdict is based upon the weakness of the testimony of an accomplice named Merrill, and inasmuch as the affidavit upon which the motion to return the record is based is one wherein Merrill disputes his oral testimony, it becomes necessary to set forth the evidence rather elaborately.
On May 12, 1924, the United States post office at Alton, Illinois, was burglarized and $33,868.69 in stamps and money taken from the safe. The safe was blown open by placing soap around the door and pouring in nitro-glycerine. The acetylene tank, the claw-bar and the tamping pick were left in the post office. The burglary occurred about 2 a. m., Monday morning.
Defendants resided in the vicinity of Alton or had so resided for years back. They were all well acquainted, and had been for years.
Defendant Larrison was 35 years old and had operated a soft drink parlor known as the Cadillac Bar. His place of business had been closed upon the motion of the government due to violations of the National Prohibition Act.
Defendant “Jackie” Adams was a professional safe blower residing near Chicago. He hailed from Alton. He did not testify.
' Defendant Joseph Melling did not testify.
Defendant Robert • Dooling was an ex-soldier who suffered disabilities during the war and received disability insurance. He testified and denied his guilt.
Defendant Joseph Marino in the summer of 1924 conducted a pool room. In 1924 he Was indicted for murder.
Defendant Joseph Meyer was a saloon keeper and, after the prohibition amendment became effective, conducted a so-called soft drink parlor which was closed by order of the court upon complaint of the government. Thereafter he was in the automobile, tire, and accessory business and “ran a blind pig.”
Benjamin Simon’s occupation at the time of the burglary was not given, but previously he had worked as hod carrier, boiler maker’s helper, had been a bar tender and was a soldier in the late war.
The two principal witnesses for the government admitted the existence of penitentiary records. One was James Kirby, who stated that he had completed three penitentiary sentences, one in California and two at Leavenworth. He was under a fourth sentence and serving his time in the Federal Penitentiary when he testified in this case. He stated that while being taken to the penitentiary the last time he jumped from the moving train and escaped. He shortly thereafter appeared at Alton. By profession he was a safe blower. He went to the Cadillac Bar, where Larrison invited him to join the party that was about to burglarize the post office. He was told that they were looking for a “Pete” man, meaning a safe blower, and he promptly accepted the invitation.
Shortly thereafter Kirby went with Merrill (alias Sturm) to the post office to look over the ground and examine the safe. A few days thereafter he was captured by the federal authorities and taken to the penitentiary. His guilty participation in the burglary came to an end.
George Merrill (alias George Sturm) was the other accomplice who testified at length upon both trials. He likewise made certain affidavits — one for the defendants upon which they ask that the record be returned to the District Court; the others for the government wherein he states he was induced for a money consideration to make the affidavit for defendants which in his two later affidavits he says was false.
Merrill is by occupation a thief; his residence for about 10 years prior to the trial, the various jails. He could not remember all the jails he had dwelt in. While stealing was his occupation and the jail his abode, he, boasted of having engaged in other criminal transactions. He-testified that he accompanied Kirby to the post office to view the safe and to study the lay of the ground.
After Kirby was captured and taken to the penitentiary, the plans for the burglary were stayed while the parties searched for a new “Pete” man. Defendant “Jackie” Adams was finally selected and Simon and Merrill interviewed him. He hesitated at first, saying “he did not want to fool around with any small stuff.”
The next night, however, he appeared at the Cadillac Bar and joined in the enterprise. Defendants Merrill, Meyer, Dooling, Larrison, Marino and Simon were all present at this meeting. Melling arrived a little later. The plans were discussed and matured.
Merrill further testified that ail expected the safe would produce a large sum of money ($90,000) — a pay roll shipment of money believed to be in the post office safe at the hour chosen.
On the evening chosen, the parties assembled. Melling furnished the car. Merrill was one of the outside watches — Simon, Larrison and Adams entered the post office. Dooling acted as another outside guard. About 2:35 the parties came out of the post office and the car was driven to Marino’s and the stamps were “dumped” on the table, the amount being over $35,000. A short time thereafter some of stamps were sold by Larrison, who divided $5,000, $200 being paid to Meyer, and $800 being paid to all of the others, except Marino, who refused his share.
° Defendants offered little or no testimony outside of their own statements. No character witnesses were offered by any of them. Several of them did not take the witness stand.
In corroboration of Merrill’s testimony it appeared that a witness, March, testified that he was in the automobile business; that about ten days after the burglary Larrison sold him an acetylene torch; and witness sold it to a garage man by the name of Gerson. Subsequent to the indictment, defendant Meyer went to March and asked him if he had bought a torch from Larrison. March replied that he did not care to discuss the matter. A couple of weeks later, defendants Meyer and Marino sought March and asked what became of the torch that he had bought of Larrison. March replied that he did not care to discuss the matter, whereupon Meyer said, “You-you, are just as guilty of this as I am.” Gerson testified that the torch offered in evidence was the one he bought from' March. The torch was such a one as was used in blowing the safe.
Turley, another witness, testified to a conversation with “Jackie” Adams while both were in the Peoria jail. Adams was asked about .the “rap” (the burglary) and Merrill’s
"stooling” (confessing). He said, "It was a good ‘rap,’ but why should a man take a good ‘rap’ on account of Merrill’s ‘stooling.’ ”
Merrill in his cross-examination was confronted by a cheek for $1,200, payable to him and drawn by one Fishman. He stated, "That was a check for some ‘hot diamonds’ that Bob Dooling and Benny Simon had. The cheek was made payable to me because Simon was afraid to have it made out in such a large amount to him. It might cause suspicion going through the bank.” This statement was disputed by Simon, who stated that Merrill told him the check was for some moonshine liquor which Merrill had delivered to a man; that he (Simon) had furnished a car for Merrill to go to Springfield to get the money, for which Merrill had agreed to pay him $50. He said his intimate association with Merrill arose out of his efforts to help Merrill collect this money.
Kirby’s testimony was corroborated in a minor matter, which was, however, significant. He described his actions during the days following his escape from the United States marshal and while he was helping to plan the post office robbery. He said he always looked in the window before entering a building. One night, shortly before the burglary as planned, he looked in the window of a road house and saw two government officials —one the deputy marshal and the other a government investigator whom he knew. He withdrew. The deputy marshal testified that ha and the government agent were at the road house on the night so -fixed and in search of Kirby.
Upon the first trial, the jury disagreed. On the second trial, defendants’ counsel examined both Merrill and Kirby freely. Such contradictions as occurred in the testimony of either witness were, on the whole, limited to unimportant matters.
When the case was presented to this court, defendants presented an affidavit of Merrill. In view of its importance, it is herewith reproduced.
The government was given a short time to meet this affidavit. It produced two affidavits by Merrill also herewith reproduced.
The recantation of Merrill and his subsequent repudiation of this recantation brought forth numerous other affidavits from the defendants as well as from the government, They are far too long to be here reproduced, Generally speaking, it may be said that de
fendants’ affidavits tend to support their claim that the recantation was freely and voluntarily made by Merrill and upon his own suggestion and without any payment of money. The government’s affidavits tend to establish the truthfulness of the testimony
given by Merrill and Kirby on
the
trial and to discredit the first Merrill affidavit.
The writ of error does not permit of a consideration of questions other than those presented to the District Court. In fact, this court must determine the assignments of error on the record as made in the. District Court. Towle v. Pullen (C. C. A.) 238 F. 107, 111.
That the evidence amply supports the verdict, we have no doubt. Por the unsupported testimony of an accomplice is sufficient to sustain a conviction. Allen v. U. S. (C. C. A.) 4 F.(2d) 688; U. S. v. Heitler (D. C.) 274 P. 401. Here there is the evidence of two accomplices, each supporting the other. Their stories are corroborated in part. No explanation other than a consciousness of guilt can account for the defendants’ inquiry of the torch sold by Larrison. Moreover, no satisfactory explanation of how Larrison came into possession of the torch is offered.
Nor is there a word of testimony disput-. ing the evidence showing that Jackie Adams is a professional safe blower, or his admission of guilt after arrest.' The damaging effect of this testimony was allowed to go unchallenged evidently on the assumption that such facts were less damaging than those which would have been brought out on, a cross-examination had he taken the witness stand. His profession, his acquaintance with the other defendants, his admission of guilt, stand undisputed.
Nowhere is there any satisfactory impeachment of Kirby’s testimony. No satisfactory motive for his falsifying appears. On the other hand, there is corroboration in minor details that strengthens his testimony. It is true that both Kirby and Merrill were criminals with numerous jail records. Their careers, as admitted on the stand, are an impeachment of their testimony. On the other hand, the government cannot he condemned for offering them as witnesses. The crime charged was a serious felony. Respectable, law-abiding citizens were not engaged in burglarizing post offices. Those engaged in such occupation were of the criminal class. To ascertain and apprehend the guilty parties, it was necessary to trace the doings and follow the careers of criminals and their associates. It was not surprising therefore that, in this search, the investigators found some of the actors in the jails and penitentiaries of the country. If it be charged that Kirby and Merrill have criminal records, the government may well answer that defendants were their associates when they were at large.
Whether defendants’ motion to return the record to the District Court should be granted depends, we think, upon the answer to the question, should the District Court grant a new trial upon the so-called newly discovered evidence?
If this question is answered in the negative, it would be idle to return the record for the purpose of passing upon a motion that must be denied. The statement of the various courts, confronted with a somewhat similar question is at least interesting. In many of the cases the facts differ widely from those of the instant case. We have found but few where there was such a clear repudiation of the recantation of the witness’ testimony.
20 R. C. L. 299, dealing with perjury as the basis for a new trial, announced the following rules:
“Where a material witness admits under oath that his testimony was mistaken or false, a new trial, has in numerous cases, been granted. In some cases, however, such admission has been held insufficient to justify the conclusion that the evidence given by the witness on the trial was false.” (For support of this statement, see People v. Tallmadge, 114 Cal. 427, 46 P. 282; People v. Shilitano, 218 N. Y. 161, 112 N. E. 733, L. R. A. 1916F, 1044.) “It has been declared that conviction of perjury or his death rendering conviction impossible is necessary.” (For support of this statement see note to 51 L. R. A. [N. S.] 291.) “And in any case an admission of perjury will not call for a new trial, if, eliminating such evidence, there is still other evidence to support the judgment.” (Por cases supporting this view see note 51 L. R. A. [N. S.] 293.) “Moreover, where the party could have shown the perjured character of the adversary’s testimony at the time of trial, a new trial has generally been denied on the ground that there must be an end of litigation.”
We agree with the court in Martin v. U. S. (C. C. A.) 17 F.(2d) 976, and hold that courts should not necessarily deny motions for new trials when the perjured testimony is merely cumulative. The fact that the testimony is cumulative only, should no doubt be considered, but it is not conclusive on the motion for new trial.
We shall approach this question on the assumption that a new trial should be granted when,
(a) The court is reasonably well satisfied that the testimony given by a material witness is false.
(b) That without it the jury
might
have reached a different conclusion.’
(c) That thé party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.
An interesting case is that of People v. Shilitano, supra, where the court makes this statement:
“Bearing in mind that the witnesses to crimes of violence are often of a low and degraded character and that after they have given their testimony they are sometimes influenced by bribery and other improper considerations; it is evident that the establishment of a rule which left the power to grant a new trial to a defendant to depend upon recantation by such witnesses would be subversive of the proper administration of justice. I do not wish to be understood as urging that the fact of recantation is not to be considered by the court in weighing the testimony upon which the defendant was convicted, but I wish to make clear the fact that recantation in and of itself does not necessarily require the court to order a new trial. Such being the ease, whether or not a new trial should be granted must depend upon all the circumstances of the case, including the testimony of the witnesses for the people, submitted on the motion for a new trial, in which these witnesses recant the testimony which they gave upon the trial.”
Speaking of the duty of the court where defendants have offered the sworn recantation statement of a witness for the prosecution the court says:
“But if, on the contrary, he (the judge) was convinced that the seeond testimony was false, that a criminal league had been formed to set at naught the verdict of the jury and the judgment of the court, his duty was clearly marked. He was not at liberty to shift upon the shoulders of another jury his own responsibility. That would have been to make the conspiracy triumphant. He was charged with the responsibility to seek the truth himself.”
In the consideration of the affidavits and the testimony given upon the trial, all of which must be considered in disposing of the motion to return the record to the Disriet Court, it is significant that:
(1) The trial which resulted in defendants’ conviction was the seeond trial of this ease. Both Merrill and Kirby testified at length on the first as well as the seeond trial. Defendants were therefore not surprised by their appearance as government witnesses nor by their evidence.
(2) The time that elapsed between the two trials permitted defendants to prepare any defense they had. Three of the defend-' ants met these charges by silence — not even a denial of their gnilt was made.
(3) Merrill’s testimony was cumulative. There was evidence sufficient to convict all the defendants without his testimony.
(4) Merrill’s recantation was obtained under circumstances which raised a grave doubt as to its reliability.
(5) He was twice given an opportunity to reaffirm or deny the statements appearing in the first affidavit. On both occasions, he disputed the first statement and reaffirmed the testimony he twice gave in open eourt and concerning which he was thoroughly cross-examined.
(6) The government’s supporting affidavits tend strongly to destroy the probative value of the recantation.
The testimony was cumulative. We are unable to find a motive for Kirby’s fabricating. He corroborated in detail the Merrill testimony up to the time he was apprehended and removed from the scene of action. If he too fabricated his story, then its accord with Merrill’s story is only explainable on the theory that the 'government investigators were in a conspiracy to suborn perjury. Their affidavits disproved this charge. One Of them produced the original notes taken by him before this case was submitted to the grand jury. They show that Merrill told the same story then that he told on the witness stand. Unless the witnesses falsified, there is no basis for accepting Merrill’s recantation.
If Kirby at Leavenworth, and Merrill at Springfield, gave in detail the story of the plan of the burglary and both involved the same parties, they must have told the truth. Dor if their stories were pure fabrication, then it is inconceivable that both, so far removed, would have fabricated alike.
The circumstances leading up to the execution of the recantation affidavit are not impressive. It does not satisfactorily appear how or why attorneys McGinnis and MeGlynn called at the penitentiary. True, Merrill in his first affidavit says he sent a friend to McGinnis. The name of the friend does not appear. But defendants later submitted two affidavits, one from Peterman and one from Pelzallo. The latter stated that he asked Peterman “to accompany him on a trip to Chicago and while on said trip if he woidd go to see the said George Sturm or George Merrill and learn if he had anything to say regarding the said case.” He further said that he learned from Peterman that Merrill
wished to see MeGlynn. Peterman does not give his occupation but he is described in the affidavit of another as “owning a ‘roadhouse’ just outside of Troy.” Ignoring other derogatory statements of Peterman, it is not clear why Pelzallo should take Peterman to Chicago on a trip to ask him to visit the penitentiary to ascertain whether Merrill wanted to recant. Nor is it understood why counsel should keep the existence of Merrill’s affidavit a secret until a few hours before the case was called in this court.
In eases of this character, where the parties are dealing with witnesses of the criminal class, lodged in jail, a due regard for the ethics of the profession suggests that the side first learning that a witness wished to recant should advise his adversary of this information and then present it to the trial judge. If any examination or cross-examination of the witness is to take place, it should be done in the court room. The entrance of attorneys into the penitentiary as here disclosed that a convict might be interviewed and his statement used against him, is condemned. If there is reason to believe that a witness falsified and is ready or willing to make a confession, counsel for the accused should notify the district attorney and, if the latter too is convinced that false testimony was given on the trial, he should at once confess error that the injustice may be promptly corrected. If the district attorney be unconvinced, counsel for the accused may present the matter to the court.
It is stated by counsel for defendants that they received a letter from Merrill subsequent to their visit but it is not attached to the affidavit nor does its contents appear. This letter would have thrown light upon the possibility of Merrill’s dictating to a stenographer the affidavit upon which defendants rely.
It is insisted that Merrill’s recantation affidavit was, with the exception of the first sentences and the last paragraph, dictated by Merrill to a shorthand reporter. The language of the affidavit itself suggests the falsity of this statement. The letter referred to, however, would have indicated a scholarship that would have verified or disproved our impression respecting his ability to express himself in the manner disclosed by the affidavit.
Nor the reasons heretofore given, we deny defendants’ motion to return the record to the District Court.
The judgment is affirmed.