Davis v. United States , 18 App. D.C. 468 ( 1901 )

Mr. Justice Shepard

delivered the opinion of the Court:

1. Certain of the errors assigned upon the exceptions taken to the action of the court in overruling the motion to quash the indictment may be dismissed with brief mention. Similar objections to an indictment, because the record did not sufficiently show that the court had jurisdiction of the offense, or the proper return of the indictment by a qualified grand jury, and because of want of particularity of the charge in respect of place and the description of the defendant, and so forth, have been fully considered in a recent case and held to be without merit. Lanckton v. United States, ante, p. 348.

2. There is no necessary inconsistency between the two' counts of the indictment, as claimed in the motion to quash, to render it defective. The first, as we have seen, is for theft, the second for embezzlement of the same property. The two offenses are nearly akin.

The same evidence, without addition or subtraction, is relied on to establish each. The defendant could not be misled or prejudiced in the preparation of his defense.

The second count charging the offense as embezzlement was evidently introduced out of abundant caution. As the express company was but a special owner of the money and as such had delivered it into the actual possession of an employee for the delivery with which it was charged, the pleader was, at the time, apparently, in some doubt whether this special possession of the defendant would, as matter of law, convert the offense of taking and conversion from theft into that of embezzlement. Upon the trial, the embezzlement count was abandoned. This would, of itself, have removed error had there been any.

The motions to quash, and in arrest of judgment were rightly overruled. Pointer v. United States, 151 U. S. 396, 400.

3. Several assignments of error raise the question of the-sufficiency of the description of the stolen property, and variance between the allegation and proof of the same, as presented on the motions to quash the indictment, to direct a verdict for the defendant, and in arrest of 'judgment. These can with convenience be considered together.

The indictment is founded on section 1158, K. S. D. C.,. which reads as follows:

“ Every person convicted of feloniously stealing, taking, and carrying away any goods or chattels, or other personal property, of the value of thirty-five dollars or upward, or any bank note, promissory note, or any other instrument of writing, for the payment or delivery of money or other valuable thing, to the amount of thirty-five dollars, or upward, shall-be sentenced to suffer imprisonment and labor, for the first offense for a period not less than one nor more than three years, and for the second offense for a period not less than three nor more than ten years.”

Tlie first count, under wbicb tbe conviction was had, charges tbe theft of “ certain securities and obligations of tbe said United States, current as money and being in tbe national currency and money of tbe said United States, of tbe value in tbe aggregate of one thousand dollars, tbe respective kinds, descriptions, denominations, and values whereof tbe grand jurors' aforesaid have no means of ascertaining and therefore cannot give, of tbe goods, chattels and moneys of tbe Southern Express Company,” etc., etc.

(1) Tbe description is not only broad enough to cover what is, technically speaking, tbe money of the United States-, but also their obligations to pay in tbe shape of gold and silver certificates and national bank notes, wbicb operate as tbe circulating medium of exchange and perform tbe ordinary functions of money. As- all of this paper, issued by, or under tbe guaranty of tbe United States, is everywhere received as tbe full equivalent of legal-tender money, instances would be rare in which tbe parties holding or transmitting tbe same, especially in cases like tbe present, would be able to describe it with greater certainty than was done in tbe testimony of tbe transmitter in this case. He could not state whether tbe bills delivered to tbe express company consisted of national bank notes, silver or gold certificates, or treasury notes; but “ knew it was such currency of tbe United States- as tbe Eufaula Grocery Company took in over its counter in tbe transaction of its ordinary business.” Tbe allegation was sufficient to inform tbe accused fully of tbe character of proof that would be offered against him, and it is not possible that be could have sustained tbe slightest injury. To require greater particularity of description by tbe grand jury, in cases like this, would ordinarily work a failure of justice for wbicb no reasonable excuse cán be found.

(2) It is not necessary to determine whether the variance between tbe proof and tbe allegation would be fatal if the latter bad been confined merely to tbe “ money of tbe United States,” and there is no occasion, therefore, to follow tbe discussion involving tbe “ legal-tender cases,” and tbe meaning of other statutes relating to money, some of them penal, or reviewing tbe decisions of State courts.

As we have said before, the description of the indictment is as broad as the statute which applies to all kinds of government securities and obligations which are paid and received as money in the daily transactions of the people. These obligations, technically divisible into gold and silver certificates and national bank notes, as well as the legal-tender treasury notes, constitute what is universally known and understood as “ the national currency and money of the United States.”

Giving the words of description this popular signification, there was no material variance between allegation and proof; and the court was right in overruling all the objections founded thereon. See 12 Am. & Eng. Encyc. Law, p. 809, and cases cited.

4. The pressure of other important matters as we near the end of the term, and the fact that the judgment must be reversed upon other grounds, prevent the extended statement and consideration of the errors assigned upon exceptions taken to the charge in respect of the evidence of the defendant’s good character. It is sufficient to say, that the effect of such proof varies with the facts of particular cases. In some cases it is of no apparent importance, whilst in others it may become a very potent circumstance.

It would be difficult, therefore, if not impracticable, to formulate a charge in respect thereto, applicable to all cases; but one that would seem to answer the purposes of the majority of cases, has been approved by the Supreme Court of the United States in the case of White v. United States, 164 U. S. 100, 104.

In our opinion, in this, as well as in the matter of instruction upon the operation of the reasonable doubt, the average jury is less apt to be enlightened by refinements in the charge than by a plain and concise statement.

5. The next assignment of error is founded on the admission of the statement of Hoekaday of the confession of the defendant, and this, for convenience, will be considered in connection with that founded on the exception taken to the part of the charge commenting thereon. This evidence has been given in tbe statement of facts heretofore made. The confession, as given by Hockaday, was admissible because it does not appear therefrom that the defendant was improperly induced to make the same. Brain v. United States, 168 U. S. 532, 539. Had he admitted, what the report of his former testimony showed, that he had also said to the defendant, “ the proper course for him to pursue was to make a confession,” the competency of his evidence would admit of some doubt under the doctrine enounced in the case cited above. As he denied making the statement, the question whether he did or not was one for the jury to pass upon under an appropriate charge. The charge referring to the confession was a lengthy one and cannot fairly be condensed with justice to either party. It is reported as follows:

“ There is some testimony here of a confession, or admission which amounts practically to a confession, so that I will give you the instruction relative to confessions, so as to enable yon to put such weight on that as the circumstances of the case and the words used, if you find they were used, entitle them to have. In that connection, I want to read an extract from the opinion of the Court of Appeals of the District of Columbia in the case of Hardy v. United States, 3 App. D. C. 35:

“ Confessions are not to be excluded because not spontaneous. They would rarely, if ever, be made without the operation of some influence upon the mind of the prisoner. A mere hope, produced chiefly by the prisoner’s own imagination or by his conception of the necessities of his situation, or a fear produced by the fact that he has been charged with a serious crime, for the first time in his life, perhaps, arrested and lodged in a close cell, are not sufficient- to require the exclusion of confessions made under their several influences. It is only where the confession may be said to have been extorted— that is to say, dragged reluctantly from the breast of the prisoner through the deliberate excitation of his hopes or fears by some actual promise or threat — that the court should refuse to let it go to the jury for any purpose. In all other cases it should be given to the jury as was done in. this instance, with the instruction that it was their duty to reject it altogether if they should have a reasonable doubt as to its voluntary nature.

“ Confessions, of course, are of various kinds. If the defendant, on arraignment here, on having this indictment read to him in open court, should plead guilty, that is all he need to say. That would be a judicial confession that would dispense with the necessity of trial at all — a formal judicial confession of guilt. But if he makes a statement outside of court that amounts to such a confession as that, and it is made voluntarily, without any inducement or any threat or fear held out to him, no matter even if made to some officer having him in charge or made to a disinterested party, it would be competent evidence to be produced before you, and in this case evidence of that character has been introduced.

“ A free and voluntary confession is evidence of the highest character, but if made by reason of fear, duress, threat, promise, or hope induced upon the mind of the accused or made by a third person, it is not to be admitted, and, if admitted, the jury are to determine what force it may have where the nature of the force or influence that was exercised does not appear until the testimony is before the jury. If such influence has been brought to bear on the mind of the defendant as to overcome his will and make the confession unworthy of credit, it should not be believed or considered; and if promises or threats were used, if they bad no influence, or their influence was totally done away with before the confession was made, the evidence should then be considered.

“ The main question in regard to confessions is the same as it is in any other kind of testimony. The main question is, was the confession made under such circumstances that it may be considered true ? Is it worthy of belief as a 'statement of facts ? If you believe that the defendant told Hockaday that he had only $700 of the money which was in the $1,000 missing package, you may, if you believe such admission to be the truth, presume from that statement that he had feloniously taken the missing package; and if you furtlier believe that he had brought such money, or $35 or more of it, into the District, your verdict should be guilty.”

In our opinion, the foregoing’ charge contains error that was prejudicial to the defendant. It is just to say that the error of the learned justice was, in great measure evidently, superinduced by expressions in the opinion, delivered by the present writer for this court, in Hardy v. United States, 3 App. D. C. 35, 48, some of which were read to the jury as part of the charge.

The decision in that case, in the absence of one in point by the Supreme Court of the United States, was in accord with what we conceived to be the doctrine of the majority of well-considered English and American cases where there had been no legislation affecting the rule. Since then, the Supreme Court has considered the general question, and, after an exhaustive review of the authorities, given expression to views, which, though the facts of the two cases are quite different, conflict with the expressions in the opinion in the Hardy Case that form a part of the charge. Bram v. United States, 168 U. S. 532 542, 549, 550, 555, 560, 565. Some passages of the charge, however, are hardly supported by the decision in Hardy’s Case, and are directly in conflict with that in Bram’s. Some of these are the following: “If such influence has been brought to bear on the mind of the defendant as to overcome his will and make the confession unworthy of belief it should not be believed or considered: ” “ The main question in regard to confessions is the same as it is in any other kind of testimony. The main question is, was the confession made under such circumstances 'that it may be considered true? Is it worthy of belief as a statement of facts ? ” In Bram’s Case it was said: “In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment, commanding that no person ‘ shall be compelled in any criminal case to be a witness against himself.’ ” 168 U. S. 542.

The court should have instructed the jury to consider the relations of superior and subordinate employee, of the same corporation, that had existed between the witness and the defendant for several years; the conduct of the witness in attempting to force a confession on the morning of the same day; the incarceration of the defendant in jail upon the additional charge of assault with intent to murder; the number and purposes of the visits of witness to the jail and his conversations -with the defendant, in determining whether the statement of the defendant was voluntary. The jury should also have been directed to consider whether they would accept the witness’ later statement of the conversation with the prisoner, as the true version, or that recorded by the stenographer as made immediately after the occurrence; and further, that any doubt in their minds whether the confession was voluntary must be determined in favor of the accused.

6. The remaining errors that have been assigned and pressed on the argument may also be considered together.

The defendant asked several instructions to the effect: That to convict as charged, the jury must believe the property was feloniously taken in the District of Columbia; that if so taken in either Georgia, South Carolina, North Carolina, or Virginia, by breaking the seal of the pouch and abstracting the package, the offense was then and there completed, and they must acquit the defendant. These were all refused and exceptions were duly reserved. In the course of the general charge, the court, after telling the jury that if they believed Hockaday’s statement of the confession, they might presume the felonious taking of the package, and find the defendant guilty if they further believed he had brought the same, or $35 or more of it, into the District, proceeded as follows:

“ If you find that the defendant was on the through express car when he received the pouch, and if there is no evidence that he was off the car between Atlanta and Washington; and if you further find from all the evidence, alleged admissions, and circumstances that he in some way obtained possession of such pouch, opened it and took out the package feloniously while on said run, you may infer from such facts that he brought it with him to this District in the absence of proof to the contrary.”

To this an exception was also reserved.

(1) The first contention hereunder is that the courts of the District of Columbia have no jurisdiction over the offense of theft committed in a neighboring State, because the stolen property shall have been thereafter brought into said District.

This presents an interesting and important question of law that has been much debated and has resulted in a decided conflict of opinion. A similar contention was expressly denied, at an early day, by the Circuit Court of the District. United States v. Tolson, 1 Or. C. C. 269; United States v. Mason, 2 idem, 410.

The same doctrine has been applied in Maryland (Worthington v. State, 58 Md. 403, 409), and, it seems, in a majority of the States. The principle is in the application of the legal fiction that the theft is repeated in any county or State in which any asportation of the property occurs. All the decisions, English and American, concur where the question is one of venue as between different counties of the same State. Some of the States — -New Jersey, New York, North Carolina, Pennsylvania, Tennessee, and perhaps Kentucky — have refused an extension of the fiction where the original taking was in another State, holding, in such case, that the thief, in bringing the property into another State, becomes nothing more than a fugitive from justice, and liable to arrest and return as such. On the other hand, Maine and Vermont go to the extreme of punishing the theft where the removed goods have been stolen in Canada. Massachusetts, again, takes jurisdiction where the theft has occurred in another State, but has denied it when occurring in Canada. Com. v. Uprichard, 3 Gray, 434.

Ve will not now undertake the determination of this vexed question.

This is not an ordinary case of theft, where the felonious taking is necessarily complete in one act. This package was intrusted to the defendant for safe carriage to, and delivery within, the District of Columbia. It must be remembered that there was no direct proof that defendant took the money, or if he took it, where the act was done. He was not seen with the package upon his person; no demand was made en route; it was not missed and hence no search was made for it. The mere intent to take the money, no matter when or where conceived, could only become an offense, in contemplation of law, when followed by the actual taking and change of the character of his possession.

If it had been proved that the defendant actually removed the package from the sealed pouch, in one of the States traversed, and took the same into his personal possession with the intent to convert the property to his own use, and so brought it into the District, the original taking would constitute a complete offense, and the jurisdiction to punish him here would then depend upon the latter act and the question, whether, in law, that would be regarded as repeating the felonious taking. It is because of this apparent inability to prove the actual taking, if there was such by the accused, at any particular place between Atlanta and Washington, that we regard the determination of the particular point as not now essential. Besides the cause is one that ought to be speedily decided, and the few days left before the adjournment of the term do not afford sufficient time for its necessary examination and careful consideration.

(2) We are of the opinion, however, that the charge given by the court, as quoted above, embodies error.

The Government made no attempt to prove anything relating to the actions of the defendant between leaving Atlanta and arriving at the station in Washington. The defendant called the only witnesses thereto. These included the railway baggage-master, who occupied the same car, and the express company’s transfer agents at the four points where the combination safe had been opened. No questions were asked by either side, tending to develop what opportunities the defendant may have had to leave the train temporarily, or whether he in fact did so; nor was the defendant himself interrogated thereon. Under these conditions, to first-charge the jury that they might infer from all the facts and circumstances, including defendant’s confession, that he feloniously took the package somewhere on the way, and, thereafter, that they might “ infer from such facts that he-brought it with him into the District, in the absence of proof to the contrary,” was clearly erroneous. It authorized presumption upon presumption, inference from inference-alone. “A presumption which the jury is to make is not a circumstance in proof; and it is not, therefore, a legitimate-foundation for a presumption. There is no open and visible connection between the fact out of which the first presumption arises and the fact sought to be established by the dependent presumption.” United States v. Ross, 92 U. S. 281, 284; Weaver v. Railroad Co., 3 App. D. C. 436, 455.

The error was rendered more serious by the addition of’ the words: “ in the absence of proof to the contrary ”. This, imposed the burden of disproving or overcoming the final inference upon the defendant. To enable the jury to infer that the package, after having been stolen, had been brought into the District, it Avas incumbent upon the prosecution to-offer .additional evidence, from which the inference could be made, with the necessary certainty, that it must have-been.

Any evidence, on the part of the defendant, tending to-show that • he had opportunities to secrete or deposit the .package for safe-keeping, in any of the places through which he passed after having receiA^ed it, would necessarily have tended to strengthen the circumstances from Avhich the original felonious taking Avas to be inferred.

It follows that the judgment must be reversed and the-cause remanded, Avith direction to grant a neAV trial.

Reversed.

Mr. Chief Justice Aiwey dissented.