UNITED STATES
v.
MULHOLLAND.
413
UNITED STATES V. MULHOLLAND. (Dt.mict
Court, D. Kentuc'kl/. April 21, 1899.)
L
POST OFPIOEll-LAROENY FROM MAILS-EvIDENOE-HEARSAY. Evidence of an admission of the theft of llo registered letter,made
by a per'JoD since deceased, is not admissible upon the trial of a postmaster for the embezzlement of such letter, as it is not such a declaration against interest as admits of the introduction of hearsay evidence.
II.
SAME....:.ll:V-IDENCE-REMOTENESS.
Evidenceis.uot admisl.!ible in suoh a case that the declarant was caught in the act of steaUng money from the post office nearly six months after the letterhad be'en stOlen, especililly as it was not shown that he could have had access to such letter in the of his Ofticial duties or otherwise.
8.
NEW TRIAL-NEWLy-DISCOVERED EVIDBNOE-Ex PARTE AFFIDAVITS.
Ex parte affidavits, upon motion for anew trial, made by witnesses for the state, cpntainingstatements more favorable to the defendant than the testimony given at the trial, Fl'ill not sustain a motion for such new triaL
At Law. , At the November term, 1891, in the district court of the United States for the 'district of Kentucky, the grand jury returned an indictment ngainstdeferidant,as follows: "United states of America, District of Kentucky-set.: In the district court.of the United States for the sixth judicial circuit and district of Kentucky, held at Padncah, November term, in the year of our Lord eighteen bundredand ninety-one. Count. The grand jurors of the United States of America, impaneled and sworn, and charged to inquire in and for the district of KentuGky, on their oath present that Hugh Mulholland, late of the district aforesaid, on the seventeenth day of July, in the year of Ollr Lord eighteen hundred and ninety-one, in the district aforesaid, being then andtllere employed in a department of the postal service of the United States,'to wit, as postmaster ,at Paducah, Kentucky, feloniously did secrete and embezzle a certain letter, which had then and there come into the posses'r sion of thesajd Hugh Mulholland, and which said lett was intended to be conveyed by mail of the United States, and was then and there addressed to M. A. Sills & Son. Model, Tennessee, and which said letter then and there articles pf value, to wit, two hnndred and eighty-seven and nine hundreC!.ths dollars, consisting of United States treasury notes and bank notes, and of the valne of $287.29, and a further description of whiqh said letter and its contents is to the jurors aforesaid unknown; against the peace and dignity of the United States, and contrary to the form of the statute in such case made and prOVided. Section 5467, Rev. St. par. I. Second Oount. And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said Hugh Mulholland on the seventeenth day of JUly, inthe year of our Lord eighteen hundred and ninety-one, in the district aforesaid, being then and there employed in a department of the postal service of the United States, to wit, as postmaster at Paducah, Kentucky, feloniously did steal and take certain articles of value, to wit, treasury notes of the United States and national bank notes, amounting in the aggregate to. and of the value of, two hundred and eighty-seven dollars, out of a certain letter then and there addressed to M. A.Sills Son. Model, Tennessee, which said letter had then and there come into his possession in the regular course of his official duties, and which said letter was then and there intended to be by mail of the. United States, and which said letter was not delivcan ered to}l1e party to whom it was dIrected, and a further description of which
" rinERALREPORTER, vol. 50. said letter and its contents is to jurors aforesald.!1nknown; against the peace and dignity oftlie UIlitM1StiltelJ, all<l contMry;''tO the form of the statute in such case made and provided. Section 5467, Rev. St. par. 2. Third Oount. And thel.gotand,'jurors llpon, their,coaVhj aforesaid, do further present that the said Hugh lv.lulholland. on the seventeenth day of July, in the year of our Lord, eighteen ,hQ,lldred anruninety-onll,in, thedititrict of the,maU' of the United atfaducah, Kentucky, letter, waifthen and there dltected to M. A. Sills,&; SoIl, Model. Tennessee, and a further description of which said letter is to the jurors aforesaid 'unknown;'lagainst' the,peace and dignity ,t)ftheUnited States,and contrary to 'Or the statute, ill 8uch case llutdll'llnd'pro\·ided. section 5469, Hev. St: 1:' 'If'ollrth 'Ooulht. And the grand' jurors aforesl\id, upon their oath aforesaid. do fll,rtherpresent that the Bald Hugh Mulhollanq, on the seventeenthdal of-July, in the yearofour,I:,ord, eighteen hundred and ninety-one. intheditltrictaforesaid,Jeloniously did take from the maUof the enited States, to wit, out of the post office at Paducah, Kentucky, Ii certain letter then and there addressed to M. A. Sills &80n, Model, Tennessee, and did then and there open and embezzle said letter, which said letter then and there containedart'icles of value, to wit, United States treuury notes and national the value t"'O hundred aU9 eighty-seven, dOllars, and a further description of which said letter and its contents is to the jurors ilforesaid the peace and dig-nity of the United States, and contrary to the, form of the statute in Buch cl\lle made and provided. " ,"Goo. W. ,JOLLY, United States Attorney." On thei5th and 6th day$ of April, 1892, the defendant, was tried, and the a verdict as follows: ' .. jury, find tbe defendant guilty as. charged in the within indict',', ' verdict was rendered the defendant moved the court to set aside tlil,e' 'verdict, and grant a new trial, on the following grounds, to wit: ''''Thede'fendant, Hugh Mulholland, Jr., moves the 'couH to set aside the verdict th,e jury. and grant a new trial herein. for the following reasons, to Wit: 0) ,The verdict of th,e jury is contrary to thelaw, as given by the court in his charge, and agamst the ,evidence. (2) Because of errors committed by court, in this: , That the' defendant offered to prove on tllA trial by the \Vitlless Samuel Williams that in a conversation between the said witness and. orla Edward Ki'llg, in December, 1l:l91, in tIle town of Paris, nessee, King stated that he had to leave this country; that he was guilty of taking tllel'egistered letters that said Mulhollanu was charged with taking. To the introduction of said testimony the government objected, and the court sustained said objection, and \Vould not permit the sairltestlmony to be introduced; to which ruling of the court the defelldant opjected and excepted at the time, and still objects and excepts. (8) Because of the en10rs committed py the in this: That the defendant ottered to prove on the trial by the Witness ,Lena Henneberger that the,said King i.;t,December, 1891, in the city ofPactuqab, Kentucky, the post office in the said cit,.·.was caught in the act of stealing atwenty"dollar gold piece 4ra:wer i.n the said post office; that said King ret'urnad the money. and c()nfessed to her that he had bikeh said money, and that said Killgon July 16 and 17, U191. WaS in the employ of the postal service, and .was in Paducah daily during said mOnth; th,atthegovernment objected to the introdliction of the said testiand the court sustained the said objection, and refused to permit said
UNITED STATES , ' . V. . " '
·
,415
.iI)trod testimony; to which t"uling of the court the defenda-nt objectei,l aJJ,dexceptl"d at ,thE! t11ile, an4 still does object ,and except. (4) Because,since the trial of thi,scase new evidence in bebalf of the dl'fendant has 'been disCovered in this, to wit: That the government's witness James ,With. row,before the trial of this case, told H. E. Thompson, of the city of Paducah, that he (Withrow) relll,embered to llave !'leen the .letter directed to the postmaster at Model, Tennessee, inclosed in,a registered envelope at the time M.iss saw the said letter, and which is the same letter 'Mentioned in the 'indictlDtltlt;and that this testimony was not known to the defendant until since the verdict of the jury. Wherefore the defendant .prays for a new trial." " , , '
,W;: jolly, S. Atty. , ,Lindsay, St.. John 13oyle,J. a. Wicliffe,Bumett & Dallam,' and 1'rarik foi: defendant·. . ;' ,
,BAlm, bistrict J udge.The defendant has' filed; grounds for a new
the motion is of trial, aD;das ,they preseptan much impol'taD,Ce to the defendant, I have considered the motion with .care. , , I The second and third grounds are the most important, and will be considere<;ifirst. They arE(that the,co\lrt erred in not allowing the defendant tq prove by.¥iss ;Ilenneberger that one-King was, in December, 1891,caught in the act of stealing a $20 gold piece from the money qrawer oftp.e post office at Paducah; and that he then confessed he had taken the money, and returned it; and that he was on the 15th and 17th of July, 1891, in the railway postal service, and was in Paducah daily during the month ofJnly, 1891. And that the court erred in not allowing the defendant to p,roveby Samuel Williamson that said King in the month oi 1891, in the town of Paris, Tenn., told him(Wil. liamson) that he (King) had to leave the country, and that he, was guilty of taking the- registered letters the defendant was charged with taking. The defendant proposed to prove by this witness that this conversation was a day before King himself,_ and after the stealing of the gold piece from the money drawer ,of the post office. The defendant was permitted to prove any fact or circumstance which would show, or tend to show" other persons. tban himself had access to the registered letter apartment, or hadpossessioq of the registered letter after it was received by the defendant, or the opportunity to get into the registered letter apartment, qr to handle the registel'6d or to have access to it in that a postal clerk was caught any way wha.tsoever. WEl thought, the stealing in the same postroflice, nearly six:.tllonths after the registered let· ter and contents werechaJ,'ged to have been taken, was too remote, and only c8.Iculated to the jury· We still think the theft of King committed in DecembeJ! did not throw; t1,le slightest light upon who com· mitted a theft the previo.us July, especially as it was not shown that King was ever jn, or had access to, the registered letter apartment, or that he had access, or could have had access, to this registered letter in the course of his .official duties or otherwise. The fact tbatKing was caught .in DecemlJer might tend to prove that he was, capable of
416
FEDERAL REPOl1TER,
vol.
in thE! prElviotis July, and. thUs increase the the tr\lthof hisadmillsion guilt of stolen the in July, but as independent evidence it is 110t admissible. admissible atall,it must be in connection with King's statement which he is,said to have made to Williamson; . The counsel for defendalithasnot pressed this ground for a new and I therefore proceed to consider whether the· staterilent Said to haV.e· been rnade by King to Williamson is com,·. ..' . petent .evidence. This statement of King was not made under the solemnity of an oath, or the fear of the penalties denounced by the law for false swearing, nor waSl'thestatement made subject to a cross-examination.. Williamson's statement as to what was said by King would. have been under oath, and subject to cross-examination; yet it is clearly hearsay, or, as Mr. Roscoe callstt, "second-hand" evidence. This is admitted by the learned <}ounsel,huthe insiststtlat statement was made against his own the acknowledgment of a crime that destroyed his character;· and rendered him liable to punishment for :an infamous crime, an<l that it is, and should be, an exception to the general rule which exdudes hearsay as evidence.. It is insisted that this is a clearly recognized exception to'the general rule as to hearsay evidence when the party making the statement is dead, in civil cases; and,ns the rules of evidencearethe same in criminal cases as in civil ones, this statement of King is competent evidence for defendant under the exception.' Mr. Greenleaf states this exception most broadly, thus: "Tb;¥I <lIllo8S embraces not only entries in books, but all other declaratiops or of facts, whether verbal or in writing, and whether they were made 'at tlje',time of thl) fact declared, or at a subsequent day. But, Lo render the:m admissible, it must appear that the declarant is deceased. that' he possessed competent knowledge of the facts, or that itwashis'duty to know them, and . that the declarations were at variance with bis interest." 1 Green). Eiy. § 147.
of
rr
·This, we think, is too broad a statement of the exception, and not sustained by the authoritiefl, at least as to recent events; but, assuming that such'i!} the laW in civil cases, the inquiry is, does it extend to <}riminalolles? We have not been referred to or seen an l:luthority, English.or American, where this kind of evidence has been admitted in a <}riminal case. The English cases declare that the adverse interest which the deceased' must have had to make his statement competent must be of a pecuniary nature, and that tne apprehension of possible danger of a prosecution is not sufficient to admit such statements. Higham v. Ridgway, 10 Eaat, 109; Sussex Peerage Case, 11 Clark & F. 108. The latter case was in the house of lords in 1844, and the question was as to the legality of a marriage upon which depended the right of the claimant to a peerage and a large estate. It was attempted to prove the statements orMr. Gunn, who was said to have been the officiating clergyman who married the moth¢t and father of the claimant, to his son, in regard to said marriage, in 1793. It was insisted that this statement was within the exception' as to hearsay evidence; because Mr. Gunn had violated
UNITED STATES V. MULHOLLAND.
417
ent, heard it, and received it as true; and (2) that it was the admission of an act committed by the party making it, against his interest. and SUbjecting him to infamy and heavy penal consequences, and who was dead at the trial. In either or both these points of view, I think the evidence was admissible, but more especially when both are combined."
the statute in regard to· marriage, and subjected himself to a penalty; hence his statement to his son in regard to the marriage was against his interest. The judges (12, I 1:?elieve) unanimously agreed that this statement was not competent. The reason given was that the fear of or the liability to be prosecuted under the marriage act was not sufficient to bring the statement within the exception as to hearsay evidence. This was a civil action, and the deci\lion has not been overruled or modified in England. Nor is there any American case to the contrary known to us, except the case of Coleman v. Frazier, 4 Rich. Law, 146. This was a civil action against the postmaster to recover the value of a letter containing money, because of the negligence of the postmaster. It appears that Meigs, who had been allowed by the postmaster access to the letters in the office, informed the defendant that he had stolen the money from the letter. This was allowed to be proven, and the superior court of South Carolina sustained the ruling of the lower court. The court says: "I placed its admission on two grounds: (1) That the defendant was pres-
This case was decided in 1850, but does not notice the SU88ex Peemge Chse, decided in 1844; but the reasoning of the court in Coleman v. Frazier was the opposite of that taken in that case. If known to the court, it was evidently not intended to be followed. That case, as well as the SU88ex Ca8e, was a civil action, and is not an authority for admitting such statements in a criminal rase. Indeed, no case has been found by me, or been cited. which sustains the admission of such evidence in a criminal case. . There are many cases in America where the statements or admissions of other parties than the accused have been attempted to be proven, for the purpose of endeavoring to show the innocence of the accused; but there are none known to me where such admissions or statements have been allowed as evidence, as being under the exception now under consideration. This fact is a strong argument against the contention that this exception as to hearsay evidence is applicable to criminal cases as well as civil ones. It is true, in all the cases which I have examined, the persons who made, or are alleged to have made, the admissions or confessions, were seemingly alive; at least, the cases do not show they were dead. But if this exception as to hearsay be applicable to criminal as well as civil cases, it is strange the effort has not been made to introduce such statements or admissions, even though the person making them was alive and within the jurisdiction of the court, since the living person who may have made the admission or confession of a crime for which another was being tried could not be compelled to testify against himself upon the stand. If, therefore, the admission of a person to another, not under oath, that he has committed a crime for which another v.50F.no.5-27
· i
. vol.
,lSi the rulE? AS: to (If, the why bec\>Il),pej;ent If the party is still Jiying,,: as he pann,ot pe compelled to testify, a.nd thus criminate ,himself? 'l'P·e, or confes§ipn as likely, to be tr,ue in the one ...., : ..lit J;eview the. American a few will. be mention,eq... In SnotQ Ala. 375, DaJ;\ip,I:$mith, Frank an<;iElbertSrpith were indicted for, .cotton, and Fra#k, SIlOW al'ld Elbert being tried. Daqiel Sinith not being on trial, (Sno,w to prove by two wit,nesses p,apj,el Sro.ith>had tpld, he (SI1lith) had iptotbe ,Hntf9Qp1, and; Sl)ow Smith were inno" centj he broke open: !ln4 tOok out the cotton, he hired Frank"Snow ,and Elbert Sp;1ithto ",haUl. t,h,eco,tton. away for him. This. jIl, the, 10werCQurrt" l\nd ruling was sustained by the supreme court of the state. See, also, Snow v. State, 54 Ala. 138. In 6Q Ga. 200, the ()ffense charged was stealing cattle. his trial offered to prove by two witnesses that theyhad peard Henry Dixon Bl;ty."that stolen the steers for which the fendant (accused) was :indicted, and that he was sharp enough to get outof'it;":,Thisevidencewas'rejected. In Greenfieldv. Pecrple, 85N. Y. 75, the accused offered to pr6ve' 'statements' made by third, parties ,the Same, night, of the murder, ,,",nq ,not far from ,tb,Elplace of murder. ,theqourt..Jn Crookharn v. State, 5 W. Va. 510, This the 119tallowed to, that another person had made threats 1p kill{],'burmap (the persqq just before the killing chargeq to that immediately after the offense Jl1i\ch' other person left the country, RIJ.d ql,\d not been heard of since. III Bowen v.State,3 'J.'exr offered to prove that one John W. Hardin had stated that he (Hardin) had killed the deceased" IIalderp,an.fol'iWhose killin,gdefendant was being tried, and had aC:: li;nowledgedt<> defendant that had done him a great wrong by ing (de'endant) ()f killing This statement was not allowed to b,e In Peck Tenn., 267,6 S. W. Rep. 389, Woods had, after the killfor whom the nC,cused was tried, admitted to witing of the pesses that he (Woods) had done the shooting. This was rejected. See, also, to thesarneeffect" Rhea v. State,lO Yel'g. 258; Smith v. State, 9 .Na. 990; Com.V. Ohabbock, 1 Nass. 144; State v, White, 68 N. C. 158. " In BOIlle o,Ohese caSl;:S the persons who were alleged to have made the or weresqown to be alive, and within reach of process,' none of them were these persons shown to be dead, al. though insOl:ne,1h eywer;e beyonq. the jurisdiction of the court; but, as tb,epersons ,cp\lld, not have. been compelled to testify in regard to said themselves, we do not see that that they wE:,1;t;e still alive. Their right of absolute the accllsed party of their testimony on the witsilence wouW as if dead. ..
,i::' .'
.. ' .
m
" , MULHOLLA.ND.
419
1f the question, not upon decisions, but hyanalogy to other rples Qfevidebce in criminal cases, we think this statetJ.IElnt of King must be :tejected.The declarations which bear the closest'resembl",nce to these sfu:tements King are those known as "dying'declarations.", These declarations lire hearsay, (lnd are admitted wit1i'the 'uttermostcaution. They are only competent in the trial for the killing of the person making them, and only then when made by him in a dying conditio'1; and aiter the hope of recovery is gone. If courts are thus ca,utiousin allowing this kind of hearsay, surely this court should not as the stateallow, intheabsende of an adjudicated case, such mentof Williamson, stating what King told him in December in regard to the stealing of these registered letters,bec.ause King now is dead. The supreme court, by Chief Justice MARSHALL, in discussing "hearsay," and its exclusion as evidence, said: "That this species of testimony supposes some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its irHrlnsic weakness. its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover. combine to support the rule that hearsay evidence is totally inadmissiblt>." The court, after stating the exceptions to the general rule excluding hearsay evidence, says: ' . "But if other cases standing on similar principles should arise. it may be doubted whether justice and the general policy of the law would warrant the of nt'w exceptions. The danger of admitting hearsay evidence is sufficient to admonish <'ourLs of justice against lillhtly yielding to the introduction of fresh exceptions to an old and well-established l"ule. the value of which is (elt and acknOWledged by all." Queen v. Hepbum. 7 Oranch. 296.
The jury that tried the defendant was not taken from the city of Paducah, but from the surrounding counties, and seemed to be an exceedingly intelligent one, having neither prejudice nor bias against the defendant, or partiality or sympathy for him. The question of the guilt or innocence of the defendant was one depending upon how the jury determined upon the evidence; and although the court might, if one of the jury, come to a different conclusion, this is no reason for granting a new trial. The other ground for a new trial is the disC'.overy of evidence since the trial, which was not and could not have been discovered by reasonable diligence before. This is a statement of H. E. Thompson of what young Withrow told him as to the fact that he had seen this registered 1etter at the time Miss Henneberger said she saw it. This evidence wQuld be only competent to contradict Withrow, had the proper foundation been laid; and is not sufficient ground for a new trial. Whart. PI. & Pro § 869; State V. Williams, 14 W. Va. 864; Friedberg V. People, 102 Ill. 165; Partee V. State, 67 Ga. 570; PolMr V. State, 6 Tex. App.512. . The affidavits of Miss Henneberger and Withrow, in which they mak;e statements .more favorable to the defendant upon a material point, requires the court should consider whether these e:l: parte statements enti-
420
",DERAL REPORTER,
vol. 50.
tIe the defendant to a new trial. In view of what Withrow stated and is quite a surprising one, omitted to state on the trial, his present and much more favorable to the defendant than given at the trial. Miss Henneberger's ,ex parte statement is also more. favora.ble to the defendant than that given before the jury. This is, however, chiefly in the dietinctness of the statement in the affidavit. as compared with that made I have a distinct recollection of what occurred in the before the trial when these witnesses were exaininEld.. Young Withrow seemed to be calm and collected, and answered questions coolly, promptly, intelligently, and I think was not cross-exslJlined at all by the defendant's counsel. Miss Henneberger became muc,h embarrassecJ and agitated during the examination, but seemed to answer qUestions intelligently, though with some degree of indistinctness as to the time of her backing the registered letter to Model. She was excused, and in the course of a half hour or more was recalled, at the instance of the defendant, and then asked about some matter about which she had not been examined before. She\vas calmer than when she left the witness stand. The court asked her .a number of questions for the purpose of having her state to the jury, more definitely her recollection about the registered letter which she had addressed to Model, Tenn. She was asked the time, and all the circumstances conbected with the matter. She made a clearer and more distinct statement than she had previously given, but still not SQ. distinct Or in given in the affidavit filed. But granting this, and that Mr. Witqrow's affidavit is more favorable to the defendant than his testimony before the jury 011 the trial, and that, too, upon a most material fact, still I do not think this new evidence is a good ,ground for a new trial. If parties in criminal cases are allowed to get ex parte statements from witneBBes who havetestifil'ld upon their trial what they would then S'tatelf again put upon'the witness stand in trial if such evidence be material, another trial, ll:nd thus which would open widll the door to a precedent would be therefore. to oV,ell'ule the motion fraud and perjury. I am for anew trial. ' "
DOUGLAS
eta!.
fl. ABRAHAM.
(Circuit Oourt, S. D. Ohio, W. D. May U, 1892.) No. 4,829. ,. PJ.'l'BN'1'B
Letters patent No. 869,848, inned September 18, 1887, to J. & G. Douglas, were tor an improvement in flushin.g. tanks for water-closets, whioh consisted of a Bphericall'\l.bber valve, resting in a pup-sh&ped seat and closing the discharge pipe, and which, when 'drawn from its. seat, floats until the tank is nearly empty, when the downward ourrent draws and wedges it into the seat, which is of slightly less diameter than the valve, and deep enough to embrace it, when in position, for more than halt its size, thereby forcing it into oomplete QOntact with the surface of the seat. Held, that this is not in fringed by a device whose operation is precisely similar, but in Which the valve is of metal and has a rubber seat, and is, moreover, someWhat of an acorn shape, so that less than half its size is embraced by the seat.. whioh has allariui mouth.' ,
TA)JKlI-VALVBIl.