The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 258
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272 FEDERAL REPORTEE
other two was not prejudicial error, where the court, in admitting the
evidence, stated to the jury that it was not binding on the other two de-
fendants.
In Error to the District Court of the United States for the Eastern
District of Illinois.
Larry Ossendorf and others were convicted of burglary and larceny
from a post office, and they bring error. Affirmed.
Chester H. Krum, of St. Louis, Mo., for plaintiffs in error.
A. B. Dennis, of Danville, Ill., for the United States.
Before BAKER, EVANS, and PAGE, Circuit Judges.
EVANS, Circuit Judge. The parties will be designated as they
appeared in the 'District Court. Defendant Barney Childers was con-
victed and sentenced on the sixth count of an indictment charging him
with having stolen $127.87 from a post office at Orient, Ill. Defend-
ants Skeeters Muskino and Charlie Marsali were convicted of the
first, fourth, fifth, and sixth counts of the same indictment, and, after
the fourth and fifth counts were eliminated, duly sentenced. The first
count charged defendants with having broken into the Orient post
office.
[1] Error is assigned because the court overruled the demurrer to
the sixth count; it being defendants' contention that the count is bad,
because the pleader failed to describe or set forth the specific pieces of
money or coins which made up the total amount taken from the post-
master's safe. After setting forth the amount, the indictment reads:
"A more correct and complete description of the kind and character of
said money being to the grand jurors unknown, said money being then and
there a portion of the money order funds of the Post Office Department of
the United States, and being then and there the property of the United
States of America."
Although this assignment of error is not argued in the brief, it was
urged in the oral argument, and we were asked to consider it as though
fully presented in the brief. We have done so, and conclude that the
indictment was not demurrable because of failure to describe the
coins or other money taken. While particularity in the description of
the property is desirable, to require the impossible would be absurd.
In this case the safe was broken into and the money stolen. The post-
master had the record of the total amount of cash on hand, but not of
the specific coins that made up the total. The grand jurors could not,
therefore, "on oath" specify the coins with greater particularity. Their
position was made known to the defendant by the statement in the in-
dictment just quoted. This was all the government was required to
allege and all the defendants could expect. Bishop, New Criminal Pro-
cedure (1913) 705; Wharton, Criminal Pleading and Practice, 218.
[2] Error is also assigned because of the court's failure to give a
requested instruction reading thus:
"I request the court to further charge the jury that all of the evidence
against the defendants is of the character known in law as circumstantial
evidence, and the court should charge the jury that before the jury can con-
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38843/m1/280/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.