affirming conviction for altering Treasury check with the forged endorsement of payee with intent to defraud the United States
How later courts described this case
- affirming conviction for altering Treasury check with the forged endorsement of payee with intent to defraud the United States
- “the contemplated infliction of monetary loss is not a necessary ingredient of an intent to defraud the United States”
Written by the judges who cited it.
The opinion
DENMAN, Circuit Judge
(concurring and dissenting).
I concur in the affirmance on the ground stated in Judge Healy’s opinion.
I dissent from the statement of'Judge Garrecht’s opinion that a probationer cannot be a witness prejudiced- in favor of the government because he has obtained a release from incarceration. As stated by the Supreme Court in Anderson v. Corall, 263 U.S. 193, 196 , 44 S.Ct. 43, 44 , 68 L.Ed. 247 . “The parole authorized by the statute does not suspend service or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term, less allowance, if any, for good conduct. While this is an amelioration of punishment, it is in legal effect imprisonment. * * * ”
The jury is entitled to know of a witness offered by the plaintiff government that he is in the custody of that plaintiff, particularly where, as here, he may at any time be returned by that custodian from freedom of incarceration to his prison cell for a breach of any of the conditions placed upon him by the parole board.
This court, in Meeks v. United States, 9 Cir., 163 F.2d 598, 599 , stated that “It is difficult to imagine a more direct and intimate relationship likely to affect one’s testimony than that between the plaintiff government and ics most important witness in establishing this first degree murder. Only by following the stated and other conditions of the parole would the plaintiff permit the witness to remain out of the penitentiary. * * »
Judge Garrecht’s opinion is an attempt to refute that holding in its statement that vas a matter of law,” the defendant in a criminal case is not “entitled to * * * a reopening of fhe case” when, before it is submitted to the jury, it is discovered- that one of the government’s chief witnesses is in its control as a probationer and likely to be prejudiced in favor of his litigating custodian.
I further dissent from that opinion distinguishing our decision in the Meeks case on the ground Meeks was accused of murder, while Pina is charged with a lesser felony. Pina is a first offender, but whether such or a person having prior sentences, he is nonetheless entitled to be free of a conviction on the testimony of a witness concerning whom the fact is withheld from the jury that he may be deeply prejudiced.