# Dean v. United States

> Court of Appeals for the Fifth Circuit · October 29, 1917 · 246 F. 568

URL: https://www.frixlaw.com/law-library/cases/8805408

## Case

- **Full name:** DEAN v. UNITED STATES
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 29, 1917
- **Citations:** 246 F. 568; 158 C.C.A. 538; 1917 U.S. App. LEXIS 1379
- **Precedential status:** Published
- **Opinion:** Dissent by Batts
- **Judges:** Batts, Grubb, Warker
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8805408

## Opinion text

BATTS, Circuit Judge
(dissenting). If in a criminal case it is claimed that the verdict is against the weight of the evidence, it is within the discretion of the trial judge to determine whether it shall be set aside, and his action will rarely be reviewed on appeal. If, *578 however, there is an absence of conflict in the testimony, or if, assuming the truth of all the evidence adverse to defendant, the evf-dence is insufficient to establish his guilt, a failure of the trial judge to direct a verdict, or to set aside a verdict of guilty, is error for which the judgment should be reversed. The guilt of the defendant should be established by competent evidence beyond reasonable doubt, and .to permit a verdict based upon evidence from which guilt cannot be inferred is to approximate an error of law. •
The defendant in this case was convicted, and the District Judge refused to set aside the verdict. All of the facts adverse to the defendant may be thus summarized: (1) He was at Macon, Ga., on December 26, 1913. (This fact he denied.) (2) On that day an application for a money order for $1 was made by a person signing his name M. M. Clark; payee, Charles A. Wells. (The postmaster testified that the application was for $1.50.) (3) The money order was issued in accordance with the application. (4) At 6 o’clock defendant saw - Charles A. Wells at the post office at Atlanta, with the money order, for $1 in his possession. (5) The defendant was arrested between 5 and 9 o’clock on that day. (6) He was taken to tire jail in a patrol wagon. (7) At the time of his arrest he, delivered to the arresting officer a small book, originally a blank book, in, which was writing, and a letter, which purported to be signed by M. M. Clark, to the effect that the writer had sent to the defendant an express money order, the envelope postmarked “Macon.” (8) The book,, application for money order, and money order said to have been raised were introduced in evidence.
In addition to these facts, either proved satisfactorily or assumed to be true for the purposes of this opinion, the witness Vickery testified that, at a date which, to the best of his recollection, was the 27th of December, 1913, he received, to the best of his recollection, • from one Brazelton, who, to the best of his recollection, was in charge of the prisoner while he was in the patrol wagon after arrest, the money order. There was no evidence as to the condition of the money order at the time it was received by him, and no evidence that it was in the same condition .at the time of trial as when he first saw it.
All the other evidence in the case was either favorable to the defendant, or was without probative force. It is detailed in the opinion of the court. The facts summarized are, of course, insufficient to establish the guilt of the defendant. In addition to this, however, the jury had before them the handwriting in the application, in the money order, and in the book given up by defendant. There was no expert testimony with reference to handwriting. An examination of the book referred to suggests the possibility that the entries were in the hands of more than one person. The jury, however, may have concluded that all of the writing .in this book, the application for the money order, and the word “twenty,” assumed to have been inserted in the money order after issue, were in the same handwriting. Assuming the handwriting the same, facts established and assumed are still insufficient proof of the guilt of defendant.
There is no proof that any of the writing was in the hand of the defendant. To sustain the conviction this process is indulged: The *579 book is a memorandum book found in possession of defendant; it is therefore his book; it is his book and has writing in it; the writing is therefore in his hand. From possession, ownership is inferred; from ownership, handwriting is inferred; from similarity of handwriting, guilt is inferred; or, if guilt is not inferred from the handwriting, it is assumed from facts entirely insufficient as proof. Among all the inferences and assumptions there is one presumption that should not have been ignored — the innocence of the defendant.
The book used as the basis for comparison of handwriting was a small pocket blank book, belonging, defendant testified, to M. M. Clark. On alternate pages throughout the book was writing in ink, as follows:
Dontn Adr. Co. • 28 Norfolk, Ya. Lumberton, N. O. To
I?. 246. A Burt no blanks. 6 qts. $1.00
.15 .85
There were a number of names and addresses of individuals. There were in ink two lists of names of cities with dates following, as:
Wayeross 15 Tirara; Maccon 45. Sat 12/26; Atlanta 160. Tugs; Uynch-burg, 33 Sat 1/16; Memphis 140 Sat 2/6.
The book was primarily introduced to establish that the defendant was in Macon on December 26th. It was no' more proof of that fact than of the fact that he was at I/ynchburg on the 16th of January, when, according to the testimony, he was in jail at Atlanta. If, however, it was not erroneous to introduce the book as evidence of something which it had no tendency to prove, its use by the jury should have been confined to that purpose, when objection was made to its use as a basis for the comparison of handwriting.
The federal law has liberalized the rule with reference to the standard to be used in comparison of handwriting, but it is still necessary that the standard be proved or acknowledged. This requirement has not been met. The only authority-brought to our attention distinctly so holds. Van Sickle v. People, 29 Mich. 61 .
If the view expressed to the effect that, where the evidence against the defendant is accepted as true, but is insufficient to establish guilt, an appellate court should reverse the action of the trial judge in refusing to set aside the verdict of guilty, is erroneous, Chis case should, nevertheless, be reversed for the error in permitting the use of the memorandum book as the basis for a comparison of handwriting.
Witnesses for the government, over the protest of earnest and capable attorneys appointed by the court to defend the accused, injected into their testimony the fact that defendant had been convicted of raising an express money order. It may be suggested that any resulting error was cured by the fact that defendant felt impelled to, or did thereafter, make a statement concerning this conviction. But, whether there was error or not, the fact of conviction, while it did not prove the present charge, doubtless had much effect in inducing *580 a verdict inadequately supported by the evidence. Defendant was a stranger, without friends, without funds, with a prison record. The conditions peculiarly called for care on the part of the prosecuting officers and the court in the preservation of his rights; and few rights are more substantial than that which arises from a presumption of innocence until guilt is established by competent evidence beyond a reasonable doubt.
I dissent from the judgment of affirmance.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8805408. Public record. Not legal advice.