JOHNSTON v. UNITED STATES.

Circuit Court of Appeals, Ninth Circuit.
October 24, 1927.

Rehearing Denied November 28, 1927.
No. 4989.

1. Indictment and information 71-Indictment charging receiving currency stolen from mails held sufficiently definite and certain, though not alleging ownership of money or name of person from whom defendant received it (Penal Code, § 194 [18 USCA § 317]).

Indictment charging defendant with receiving and having in possession, in violation of Penal Code, § 194 (18 USCA § 317), sum of $2,000 in United States currency, to wit, 100 $20 bills of paper currency of United States, a more particular description being to grand jurors unknown, which currency had been stolen by another from mail pouch, held not subject to objection that it was indefinite and uncertain, because not stating name of person from whom defendant received money, circumstances under which it was received, or ownership of money, and because it did not contain sufficient description thereof.

2. Criminal law 1169(5)-In prosecution for receiving money stolen from mails, admitting copies of indictments against thief held harmless, in view of court's remarks (Penal Code, 194 [18 USCA § 317]).

In prosecution for receiving money stolen from mails, in violation of Penal Code, § 194 (18 USCA § 317), admitting in evidence certified copies of indictments against one who had stolen money from mail pouch merely for circumstantial purposes, and not to prove that money alleged to have been received by defendant had theretofore been stolen from mails, if error, held harmless.

3. Criminal law 369 (2)—Relevant evidence is not inadmissible because it proves another distinct offense.

Evidence which is relevant is not rendered inadmissible because it proves or tends to prove another and distinct offense.

4. Criminal law 370-In prosecution for receiving money, stolen from mails evidence of previous transaction between parties held ad22 F. (2d)-1

missible to show guilty knowledge (Penal Code, 194 [18 USCA § 317]).

In prosecution for receiving $2,000 in currency, which had been stolen from mails, in violation of Penal Code, § 194 (18 USCA § 317), evidence of previous transaction, whereby defendant received $400 from same parties, held so closely connected with matter under investigation as to be admissible to show whether defendant, when he received the $2,000, knew that it had been stolen from mails.

7. Criminal law 341-Evidence of previous conduct and relations of defendant and another held admissible to show conduct and relations at time it was claimed defendant received money stolen from mails (Penal Code, 194 [18 USCA § 317]).

In prosecution for receiving money stolen from mails, in violation of Penal Code, § 194 (18 USCA § 317), evidence that license for automobile, in which defendant and another went to K., where money was alleged to have been received, was issued to defendant, and that a few days previously J., under assumed name, received license for same car, and that defendant and J. occupied rooms at hotel under assumed names, held competent as showing conduct and relations of defendant and J. on their visit to K. at time it was claimed defendant received stolen money, and whether it was for honest purpose of searching for stolen bonds, with intention of returning them to owner, as claimed by defendant.

8. Post office 50-Whether money received by defendant was stolen from the mails while in course of regular mail transportation held for jury (Penal Code, § 194 [18 USCA § 317]).

In prosecution for receiving money, which had been stolen from mails, in violation of Penal Code, § 194 (18 USCA § 317), in which defend

ant claimed there was no evidence that money alleged to have been received was in fact stolen by H. While in course of regular mail transportation, evidence held for jury.

In Error to the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge.

George Lee Johnston was convicted for violation of Penal Code, § 194, and he brings error. Affirmed.

See, also, 292 F. 491.

W. G. McLaren and G. F. Vanderveer, both of Seattle, Wash., and N. D. Wernette, of Cœur d'Alene, Idaho, for plaintiff in error. H. E. Ray, U. S. Atty., and Sam S. Griffin and W. H. Langroise, Asst. U. S. Attys., all of Boise, Idaho, and E. G. Davis, Sp. Asst. Atty. Gen., for the United States.

Before HUNT and RUDKIN, Circuit Judges, and BEAN, District Judge.

BEAN, District Judge. The defendant was indicted, tried, and convicted for a violation of section 194 of the Penal Code (18 USCA § 317), and from the judgment which followed brings this appeal.

The alleged errors discussed at the argument and in the briefs consist in the overruling of a demurrer to the indictment, the admission of certain evidence, the instructions of the court concerning the same, and the refusal of the court to give a certain instruction and direct a verdict for the defendant.

[1] 1. The indictment charges in substance that on or about the 10th day of September, 1922, at a point near Kellogg, in the state of Idaho, the defendant did "then and there willfully, knowingly, unlawfully, and feloniously receive and have in his possession the sum of two thousand dollars in United States currency, to wit, one hundred twenty-dollar bills in paper currency of the United States of America, a more particular description being to the grand jurors unknown," which $2,000 had been, on or about the 28th day of March, 1922, at Kellogg, stolen by one Edward J. Hicks from a certain mail pouch which had theretofore been dispatched from the Spokane & Wallace Railway post office train No. 22 of the Oregon-Washington Railroad &

Navigation Company to the post office at Kellogg, and which pouch was then and there in the course of regular mail transportation, and at the time defendant received and had in his possession the money referred to he knew that the same had been so stolen by the defendant Hicks. The objection to the indictment is that it is indefinite and uncertain, because it does not state the name of the person or persons from whom the defendant is alleged to have received the money, nor the manner or circumstances under which it was received by him, or the ownership of the money, or contain a sufficient description

thereof.

It is believed that these objections are without merit. The statute makes it a substantive offense for any person to receive or conceal or unlawfully have in his possession property which has been stolen from the mail, knowing the same to have been so stolen, and it has been held that it is not necessary, in an indictment for a violation of this provision, to

allege the ownership of the property charged to have been received by the defendant (Thompson v. U. S. [C. C. A.] 202 F. 401, 47 L. R. A. [N. S.] 206), nor the name of the person from whom he received it (Kirby v. U. S., 174 U. S. 47, 19 S. Ct. 574, 43 L. Ed. 890). The money alleged to have been received by the defendant is described in the indictment as 100 $20 bills, paper currency of the United States, a more particular description being to the grand jurors unknown, and this we take it is sufficient.

[2] 2. Hicks was called as a witness for the government, and testified that he was the same Hicks who was convicted on or about May 28, 1922, under two certain indictments charging him with stealing from the mail on or about the 28th day of March, 1922, at Kellogg, two certain registered parcels, one containing $10,000 and the other $2,000, the property so stolen being contained in a mail pouch which had theretofore been dispatched from Spokane & Wallace Railway post office train No. 22 to the post office at Kellogg by the Spokane Branch of the Federal Reserve Bank, addressed to the First National Bank of Kellogg, and which was at the time in course of regular transportation of mail from Spokane to Kellogg, and that he stole these two parcels from the mail pouch at or about the time stated in the indictment; that he thought there were two or three bundles containing currency of the denomination of $20, and as a result of this conviction he was sentenced to confinement at McNeil Island. On cross-examination he testified that at the

time of the offense he was in partnership at Kellogg with his son-in-law, C. W. Glassen, in the stage and for-hire car business; that he was convicted on four indictments; that he buried most of the stolen money under the floor of his garage, but put a part of it in an automobile in the garage; that the bonds stolen by him were thrown in the river under the second bridge west of Kellogg.

The government thereupon offered in evidence certified copies of the indictments against Hicks with the statement that they were offered "for the description, so that we may know that we are talking about the same thing." The court, over the objection and exception of the defendant, admitted the indictments for "merely circumstantial purposes," and advised the jury at the time that "these indictments are not offered for the purpose, and you will not consider them for the purpose, of establishing the truth of the charge that this property has been stolen-that is, that there had been any theft of the mail-and you will not consider them for that purpose at all. They are no evidence at all of the commission of any crime." Under these circumstances, the admission of the indictments, if error, was harmless. They were not offered nor admitted as evidence tending to prove that the money alleged to have been received by the defendant had theretofore been stolen from the mails and the jury were so advised.

3. The next assignment of error is the admission, over the defendant's objection and exception, of evidence concerning what is referred to as the four hundred dollar transaction. There was evidence on the trial tend ing to show that in August, 1922, Mrs. Hicks, while on her way to visit her husband, who was then confined in the penitentiary at McNeil Island, called on and had an interview with the defendant in Seattle, in which he told her that he had been over to see her husband, and they had made arrangements to try to get him out of the penitentiary; that her husband had spoken about some bonds, but they had made no definite arrangement, and he wanted her to go over and ascertain what her husband wanted to do; that she went to the penitentiary, saw her husband, and the next day again called on defendant; that she then informed him of the place where her husband said he had cached about $14,000 in bonds, and where they could be found, and the defendant made a draft or sketch of the place as described by Mrs. Hicks; that Mrs. Hicks informed the defendant in that conversation that her husband had said that he (defendant) was to go over to Kellogg and look

for the bonds, and if he found them to cash them, if they were not registered, and to use $5,000 of the proceeds to secure his (Hicks') release, but if he could not get the bonds defendant wanted $2,000. She informed the defendant that her husband also told her to ask him if he could let her have some money, as she was in need, and defendant said that he would do so if he could get it, and for her to send over to him what could be found; that she told defendant that her husband had informed her son-in-law that there was some money hidden in one of the cars, and he (defendant) said for the son-in-law to get it and send it to him at his address in Seattle by registered mail, and for her not to try to spend any of it in Kellogg, but have it put in a box and sent to him, she placing some name on the outside of the box, for the return of the package in case of its miscarriage; and that upon the receipt of the package he would wire her money to whatever address was on the outside of the package, but when the wire was received for her to demand cash, and not accept a check or draft.

After this conversation Mrs. Hicks returned to Kellogg, told her son-in-law of the interview with defendant, and he found the money in the car, and she put $4,000 in a box, and on August 19th sent it by registered mail, addressed to the defendant at his Seattle office, the package having indorsed thereon, "Return to Mrs. B. F. Marks, Wallace, Idaho." The package was received at defendant's office and receipted for by his clerk, and on August 24th an application was made to the telegraph office at Seattle, in the name of one Petersen, for a money transfer of $200, payable to Mrs. B. F. Marks, Wallace, Idaho, and such transfer was made by wire, and the money received by Mrs. Hicks' daughter.

On September 8th the defendant, in company with one Jensen, drove over to Kellogg and made search for the bonds at the place where Hicks is reported to have said he placed them, but was unable to find them. In the evening of that day they drove by the Hicks garage, and Mrs. Hicks advised defendant not to stop at the garage, because she thought they were being watched, but that, if he wanted anything, he could write a note and throw it on the porch. About half an hour later a note was thrown on the porch, stating, "Meet Al Wood at Samuels Hotel, room 25." The defendant and Jensen were registered at this hotel, and under the names of Wood and Hansen, and occupied rooms 25 and 26.

The next day Glassen and his wife went to