PHILLIPS, Circuit Judge.
Albert L. Bates, George R. Kelly, Kathryn Thorne Kelly, Harvey J. Bailey, Robert G. Shannon, Armón Crawford Shannon, Ora L. Shannon, Charles Wolk, Sam Kron-ick, Edward Berman, Peter Valder, Sam Kozberg, Clifford Skelly, and Isadore Blu-menféld were charged by indictment under the act of June 22, 1932, 47 Stat. 326 (see 12 USCA §§ 408a to 408c), with conspiracy to commit the substantive offense defined therein.
The indictment charged that the defendants “did knowingly, wilfully, unlawfully, and feloniously combine, confederate and agree together” continuously from July 22, 1933, to August 23, 1933, to commit an “offense against the United States * * * that is to say violate * * * the Act, of Congress approved June 22,1932, which provides a penalty for transportation in interstate commerce of any kidnapped person held for ransom or reward.”
That it was a párt of such conspiracy that the defendants on or about July 22,1933, at Oklahoma City would seize, kidnap, and abduct Charles F. Urschel, would transport him in interstate commerce from Oklahoma City, Oklahoma, to the Shannon Ranch in Wise County, Texas, would hold him for a ransom of $200,000, and would demand payment thereof in used twenty-dollar Federal Reserve notes.
“That it rms a further part of said conspiracy that they, the defendants aforesaid, immediately upon receipt of said ransom money 7vould proceed to Denver, Colorado, St. Paul, Minnesota and divers other points unknown to the Grand' Jurors far distant from the scene of kidnapping, place of confinement and place of ransom payment for the purpose of changing said ransom money for other moneys or securities in order to avoid detection, apprehension and arrest through the means of marked money;
* * *
“
* * * that at the hereinafter stated times, * * * for the purpose of carrying out and to effect the object * * * of said conspiracy, the hereinafter named defendants did, at the several times and places hereinafter mentioned in connection with their names, the several overt acts hereinafter specified * * *.
“13. That on or about August 5, 1933, at Minneapolis, Minnesota, Edward Berman, alias Barney Berman, Charles Wolk, Peter Valder, alias Hackett, alias Nelson, Sam Kozberg, Isadore Blumenfeld and Clifford Skelly and Sam Kronick did knowingly, wil-fully and unlawfully possess, conceal and exchange approximately Five Thousand Five Hundred Dollars ($5,500.00) of the original ransom money paid to the said conspirators for the release of the said Chas. F. Urschel.” (Italics ours.)
The Kellys were tried separately from the other defendants and convicted. The remaining defendants were tried jointly and all convicted except Wolk, Kronick, Valder, Kozberg, and Blumenfeld.
Kelly and Bates kidnapped Urschel on July 22, 1933, at Oklahoma City, transported him to the Shannon ranch in Wise County, Texás, and there held him for ransom from July 23 to July 31, 1933. On the latter date they transported Urschel from the Shannon ranch to a point near Norman, Oklahoma, where they released him.
Kelly and Bates demanded payment of a ransom of $200,000 in used twenty-dollar Federal Reserve notes. The ransom was paid to Kelly in the form demanded at Kansas City, Missouri, on July 30, 1933.
The following telegram, the original of which was in the handwriting of Bates, was sent from Minneapolis on August 8,1933:
“Western Union Telegram
August 8,1933,1:39 P. M. “R. G. Shannon,
“c/o Sales Manager, Cadillac Factory Sales Branch
“Cleveland, Ohio.
“Deal has fell through. Jack and Toni have left. Communicate with me at Box 631.
“George
“Geo. H. Miller, Sheridan Hotel, Minneapolis.”
The Kellys were at the Cadillac Motor Car Company at Cleveland, Ohio, on June 2 and 3, 1933, and purchased a 16-cylinder Cadillac. They returned August 8, 1933, and paid the Motor Company $1310, the balance due on such automobile, and arranged to purchase a second automobile.
In dealing with the Motor Company they went under the name of R. G. and Ora L. Shannon. The above quoted telegram was delivered to them on August 8 by the Motor Company.- After having arranged for the purchase of a second car, they informed the Motor Company on August 9, 1933, that
they had to return to Paradise, Texas, on account of the illness of Mrs. Kelly’s mother, and had decided not to purchase the second car.
Coulter, a special agent, learned on August 5, 1933, that certain of the ransom bills had been received by the Hennepin State Bank of Minneapolis. He traced them back to Berman and Skelly. Berman, Skelly, and Blumenfeld' were in the illicit liquor business. Berman told Coulter that a man came to their office in the West Hotel on August 3, 1933, introduced himself as Collins and said he was from the south and wanted to buy some liquor; that he did not know the man so he turned him over to Blumenfeld; that Blumenfeld talked to the man and then informed him, “this man knows some people down South. I can say he is all right.” That they then made a deal for 125 cases at $5,500. That the man counted out ‘$’5,000 in $20 bills and the balance in $100 and $10 bills. That about an hour and a half later the man returned in a Chevrolet truck and took the liquor; that they did not know who the man was and had not seen him since; that they gave Max Bender of St. Paul $1440; that Skelly used some of the money to repair his house; that he let his son-in-law have $1100, and they used $1000 to purchase a cashier’s check, payable to S. H. Peters, from the Hennepin State Bank; that he and Skelly went to the bank with Sam Frederick, and that Frederick purchased the draft; that Chas. Wolk sent Frederick to the bank with them. .
Skelly made a like statement to Coulter as to the disposition of the money. Skelly also stated that he went with Frederick to the bank.
On August 5, 1933, Berman requested Wolk by telephone to go to the bank and purchase a cashier’s check. Berman and Skelly then went' to Wolk’s place of business. Wolk instructed Frederick to go to the bank with Berman and Skelly, who were sitting in a car outside the warehouse of the Wolk Transfer Company. Frederick was a truck driver for that company. Frederick accompanied the two men to the Hen-nepim State Bank in Minneapolis. When they got to the bank the man who was driving said, “Go and get a check for $1800 under the name of S. H. Peters.” Skelly aft- • erwards admitted to Frederick that he was the driver. • The man in the rear seat gave Frederick two bundles of bills and a 25-cent piece, Frederick went to Mr. Hagan’s cage in the bank and said, “Mr. Hagan, please give me a cashier’s check.” Frederick obtained the check and went out onto the sidewalk, but did not see Berman and Skelly. He stood there a moment and then heard the sound of an automobile horn, turned around, and saw Skelly and Berman in the car. He handed Berman the check through the car window, and Skelly and Berman drove away.
Free access — add to your briefcase to read the full text and ask questions with AI
PHILLIPS, Circuit Judge.
Albert L. Bates, George R. Kelly, Kathryn Thorne Kelly, Harvey J. Bailey, Robert G. Shannon, Armón Crawford Shannon, Ora L. Shannon, Charles Wolk, Sam Kron-ick, Edward Berman, Peter Valder, Sam Kozberg, Clifford Skelly, and Isadore Blu-menféld were charged by indictment under the act of June 22, 1932, 47 Stat. 326 (see 12 USCA §§ 408a to 408c), with conspiracy to commit the substantive offense defined therein.
The indictment charged that the defendants “did knowingly, wilfully, unlawfully, and feloniously combine, confederate and agree together” continuously from July 22, 1933, to August 23, 1933, to commit an “offense against the United States * * * that is to say violate * * * the Act, of Congress approved June 22,1932, which provides a penalty for transportation in interstate commerce of any kidnapped person held for ransom or reward.”
That it was a párt of such conspiracy that the defendants on or about July 22,1933, at Oklahoma City would seize, kidnap, and abduct Charles F. Urschel, would transport him in interstate commerce from Oklahoma City, Oklahoma, to the Shannon Ranch in Wise County, Texas, would hold him for a ransom of $200,000, and would demand payment thereof in used twenty-dollar Federal Reserve notes.
“That it rms a further part of said conspiracy that they, the defendants aforesaid, immediately upon receipt of said ransom money 7vould proceed to Denver, Colorado, St. Paul, Minnesota and divers other points unknown to the Grand' Jurors far distant from the scene of kidnapping, place of confinement and place of ransom payment for the purpose of changing said ransom money for other moneys or securities in order to avoid detection, apprehension and arrest through the means of marked money;
* * *
“
* * * that at the hereinafter stated times, * * * for the purpose of carrying out and to effect the object * * * of said conspiracy, the hereinafter named defendants did, at the several times and places hereinafter mentioned in connection with their names, the several overt acts hereinafter specified * * *.
“13. That on or about August 5, 1933, at Minneapolis, Minnesota, Edward Berman, alias Barney Berman, Charles Wolk, Peter Valder, alias Hackett, alias Nelson, Sam Kozberg, Isadore Blumenfeld and Clifford Skelly and Sam Kronick did knowingly, wil-fully and unlawfully possess, conceal and exchange approximately Five Thousand Five Hundred Dollars ($5,500.00) of the original ransom money paid to the said conspirators for the release of the said Chas. F. Urschel.” (Italics ours.)
The Kellys were tried separately from the other defendants and convicted. The remaining defendants were tried jointly and all convicted except Wolk, Kronick, Valder, Kozberg, and Blumenfeld.
Kelly and Bates kidnapped Urschel on July 22, 1933, at Oklahoma City, transported him to the Shannon ranch in Wise County, Texás, and there held him for ransom from July 23 to July 31, 1933. On the latter date they transported Urschel from the Shannon ranch to a point near Norman, Oklahoma, where they released him.
Kelly and Bates demanded payment of a ransom of $200,000 in used twenty-dollar Federal Reserve notes. The ransom was paid to Kelly in the form demanded at Kansas City, Missouri, on July 30, 1933.
The following telegram, the original of which was in the handwriting of Bates, was sent from Minneapolis on August 8,1933:
“Western Union Telegram
August 8,1933,1:39 P. M. “R. G. Shannon,
“c/o Sales Manager, Cadillac Factory Sales Branch
“Cleveland, Ohio.
“Deal has fell through. Jack and Toni have left. Communicate with me at Box 631.
“George
“Geo. H. Miller, Sheridan Hotel, Minneapolis.”
The Kellys were at the Cadillac Motor Car Company at Cleveland, Ohio, on June 2 and 3, 1933, and purchased a 16-cylinder Cadillac. They returned August 8, 1933, and paid the Motor Company $1310, the balance due on such automobile, and arranged to purchase a second automobile.
In dealing with the Motor Company they went under the name of R. G. and Ora L. Shannon. The above quoted telegram was delivered to them on August 8 by the Motor Company.- After having arranged for the purchase of a second car, they informed the Motor Company on August 9, 1933, that
they had to return to Paradise, Texas, on account of the illness of Mrs. Kelly’s mother, and had decided not to purchase the second car.
Coulter, a special agent, learned on August 5, 1933, that certain of the ransom bills had been received by the Hennepin State Bank of Minneapolis. He traced them back to Berman and Skelly. Berman, Skelly, and Blumenfeld' were in the illicit liquor business. Berman told Coulter that a man came to their office in the West Hotel on August 3, 1933, introduced himself as Collins and said he was from the south and wanted to buy some liquor; that he did not know the man so he turned him over to Blumenfeld; that Blumenfeld talked to the man and then informed him, “this man knows some people down South. I can say he is all right.” That they then made a deal for 125 cases at $5,500. That the man counted out ‘$’5,000 in $20 bills and the balance in $100 and $10 bills. That about an hour and a half later the man returned in a Chevrolet truck and took the liquor; that they did not know who the man was and had not seen him since; that they gave Max Bender of St. Paul $1440; that Skelly used some of the money to repair his house; that he let his son-in-law have $1100, and they used $1000 to purchase a cashier’s check, payable to S. H. Peters, from the Hennepin State Bank; that he and Skelly went to the bank with Sam Frederick, and that Frederick purchased the draft; that Chas. Wolk sent Frederick to the bank with them. .
Skelly made a like statement to Coulter as to the disposition of the money. Skelly also stated that he went with Frederick to the bank.
On August 5, 1933, Berman requested Wolk by telephone to go to the bank and purchase a cashier’s check. Berman and Skelly then went' to Wolk’s place of business. Wolk instructed Frederick to go to the bank with Berman and Skelly, who were sitting in a car outside the warehouse of the Wolk Transfer Company. Frederick was a truck driver for that company. Frederick accompanied the two men to the Hen-nepim State Bank in Minneapolis. When they got to the bank the man who was driving said, “Go and get a check for $1800 under the name of S. H. Peters.” Skelly aft- • erwards admitted to Frederick that he was the driver. • The man in the rear seat gave Frederick two bundles of bills and a 25-cent piece, Frederick went to Mr. Hagan’s cage in the bank and said, “Mr. Hagan, please give me a cashier’s check.” Frederick obtained the check and went out onto the sidewalk, but did not see Berman and Skelly. He stood there a moment and then heard the sound of an automobile horn, turned around, and saw Skelly and Berman in the car. He handed Berman the check through the car window, and Skelly and Berman drove away.
Hagan had received a notice' concerning $20 notes of the Tenth Federal Reserve District. He observed a large number of such notes among the currency with which Frederick had purchased the cashier’s check, and notified an officer of the bank, who called in Coulter. The latter came and took the numbers of the notes. Fifty of them were ransom notes.
Previously to August 5, Valder had cashed a check on a Fargo, North Dakota, firm for $1,000 at the First National Bank & Trust Company of Minneapolis. It was returned .on account of insufficient funds.
The First National Bank notified Valder to take up the check, and on August 5, 1933, he presented the cashier’s check made to Peters to take up the $1,000 check, and received $800 in currency. Valder was in the liquor business.
Coulter arrested Frederick and Wolk on August 6, and Valder on August 7. Statements respecting such arrests first appeared in the newspapers on August 8.
After getting a statement from Wolk, Coulter started to look for Berman on August 8. He went to Berman’s office in the West Hotel, but no one was there. He kept searching for Berman but failed to locate him. On August 13 Berman came to Coulter’s office. On August 25 Coulter interrogated Berman and Skelly. Coulter asked Berman why he ran away when Valder was arrested. Berman^ replied, “I was afraid they were going to take me back down south without a chance to confer with my lawyer.” Coulter said, “How do you know you would be taken down there?” Berman answered, “I heard it; you know how news travels.” Berman admitted that he, Skelly, Banks, Blumenfeld, and Cary their lawyer, were at Medicine Lake Cottage on August 8. Ber-man, Skelly, and Blumenfeld all said they were there because' they wanted to confer with their attorney. Skelly said he was scared, and Blumenfeld said he knew he would be picked up if he remained in Minneapolis.
.Twenty-five of the ransom notes were deposited in the St. Anthony Falls office of
the First National Bank & Trust Company of Minneapolis on Saturday, August 5,1933, by Kronick. Kronick was in the barber supply business, and stated to Coulter he got the money in the regular course of business during the week it was deposited. Sam Kozberg, a cousin of Kronick’s, let the latter have $500 in $20 bills on August 5, 1933. Kozberg obtained them from Berman on that date. Kozberg testified Kronick was indebted to his (Kozberg’s) company, the La-Tialle Products Company, in excess of $500; that Berman owed Kozberg and Kozberg went to Berman and secured the $500 and gave it to Kronick, who in turn gave Koz-berg a check for $500 payable 'to the Products Company, and that he did not take a promissory note from Kronick.
Neither Berman nor Skelly testified in his own behalf.
Was the evidence sufficient to warrant the jury in finding that Berman and Skelly had knowledge of the conspiracy and its unlawful purpose, when they received certain of the ransom notes and exchanged them.
It is quite plain that .they received the notes from Bates, and that Bates learned through the press on August 8 of the arrest of Wolk, Frederick, and Valder; hence the wire to Kelly on that date. Berman’s and Skelly’s explanation of how they received the notes from an entire stranger is incredible. Their conduct in going about the purchase of the cashier’s check was most unusual. Why did they not go directly to the bank themselves? When Valder was arrested, they concealed themselves and went into consultation with their attorney. . Kozberg received $500 in ransom notes from Berman. Kronick’s and Kozberg’s conduct strongly indicated their guilty knowledge when they received the notes. When Kron-ick was arrested, he falsified about where he had obtained them. The Products Company would have taken the currency from Kronick. Why all the circuity? Kozberg did not take a promissory note from Kron-ick. If Kronick knew the money was “hot,” it is likely that Skelly and Berman also knew.
We conclude that the circumstances were such as to warrant the jury in finding that Berman and Skelly, with knowledge of the conspiracy and its unlawful purpose, agreed with Bates to join the conspiracy and to aid the principals to the substantive offense to avoid detection, apprehension, trial, and punishment by exchanging ransom notes for unidentifiable currency.
Was the conspiracy completed and at an end when Urschel was released on July 31, or did it continue until the ransom notes were exchanged for other monies to aid the conspirators who committed the substantive offense to avoid detection, apprehension, trial, and punishment.
It must be kept in mind that the indictment is not under the general conspiracy statute, but under the conspiracy provision of the act of June 22, 1932, which is limited to a conspiracy to commit the substantive offense defined therein.
“An
accessory
is he who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein, either
before
or
after
the fact committed.” Jones’ Blaekstone, Books 3 and 4, p. 2202; United States v. Hartwell, 26 Fed. Cas. 196, No. 15,318; Able v. Commonwealth, 5 Bush (Ky.) 698; Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370. “An accessory is one who participates in a felony too remotely to be deemed a principal.” Bishop on Criminal Law (9th Ed.) vol. 4, § 663.
An accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon in order to hinder the felon’s apprehension, trial, or punishment.
Berman and Skelly, with knowledge that the substantive offense had been committed, agreed with Bates, one of the principals to the substantive offense and an original member of the conspiracy, to commit certain criminal acts and thereby assist such principals to avoid detection, apprehension, trial, and punishment.
Upon the commission of such acts by Berman and Skelly they would become accessories after the fact to the principals to such substantive offense, and upon conviction thereof liable to punishment as provided in 18 USCA § 551.
The acts of a principal to a substantive offense and the acts of an accessory after the fact thereto, are one continuous criminal transaction. At common law the principal and accessory after the fact may be jointly indicted and where so indicted they
should be charged in one count with but one commencement and one conclusion.
There-•fdre the acts of the two constitute a single offense committed by them jointly, one acting as principal and. the other as accessory after-the fact.
In Bishop on Criminal Law (9th Ed.) vol. 1, § 692 (3), it is stated:
“In reason * * * one who renders this assistance, thus adding his will to an evil thing after another has done it, does not thereby become a partaker in the guilt because only when an act and evil intent concur in time, is a crime committed. Therefore it is not from the reasoning of the law, but from ancient practice confirmed by modern, that the helper of a felon after the fact is classed as an accessory. This technical rule has become too fundamental in the common law of crime to be overcome by judicial reasoning.”
It follows that Berman and Skelly knowingly agreed to join as accessories after the fact in the commission of the substantive offense defined in such act.
Clearly the whole of such a criminal transaction may be embraced within a single conspiracy. It was here. The conspiracy, as originally formed and here charged, 'embraced two integral objects or purposes, one the commission of the substantive offense by the original conspirators as principals to obtain the ransom money, and the other the commission of the acts by Berman and Skelly as accessories after the fact to enable such principals to avoid detection, apprehension, trial, and punishment.
We are of the opinion that the criminal agreement, both that part which had for its purpose the commission of the substantive offense by principals and that part which had for its purpose the commission of ac
cessory criminal acts by accessories after the fact, constituted one entire conspiracy and is embraced within the conspiracy provision of the act and that such conspiracy was not completed until both its objects were effected. Like conclusions have been reached in analogous cases.
We conclude that when Berman and Skelly, with knowledge of the conspiracy and its unlawful purpose, agreed to join it and commit such acts as accessories after the fact, they thereby became parties to the conspiracy with the same effect as if they had joined in at its inception.
The telegram was admissible as a circumstance to show that Bates was in Minneapolis on August 8. The evidence shows Berman and Shelly were then members of the conspiracy, and its purpose had not then been fully accomplished.
But, were it otherwise, the court’s instruction, which is as follows, properly limited the telegram.
“A conspiracy cannot be shown by the declarations or admissions of one party only, although they are admissible as to him. It can only be shown by the independent facts and circumstances evidencing the agreement or the common design. When a conspiracy is once shown each of the parties thereto is thereafter chargeable with what the others do and say in furtherance of it while it is pending and not at an end.”
The judgments are affirmed.