forth in the information, are clearly admissible on the issue of intent and to establish a common scheme or plan. Lotto v. United States, 8 Cir., 157 F.2d 623.
The statute of limitations for an action of this nature was 3 years, and since time was not of the essence in the prosecution, the Government was not bound to show that the crime was committed on the date laid in the indictment or to show the exact date on which it was committed. In other words, the Government was not bound to establish that the alleged crime occurred on the 26th day of May, 1945, but would have been permitted to prove and establish that the alleged crime occurred on any date between the filing of the Information on the 30th day of November, 1945, and during the period of 3 years prior thereto. ' 18 U.S.C.A. § 582, Act of December 27, 1927, c. 6, 45 Stat. 51' Allred v. United States, 9 Cir., 146 F.2d 531; Weeks v. Zerbet, Warden, 10 Cir., 85 F.2d 996.
However, the Government would be confined to the proof of one substantive crime during said period of 3 years prior to November 30, 1945, and it was prejudicial to permit the Government to prove the commission of more than one substantive offense during said period of time since the information did not set forth that the alleged offense occurred on or about May 26, 1945, or at divers times before or subsequent thereto; the Information contained the phrase 'on or about the 26th day of May, 1945.'
Relevant evidence does not become incompetent because it incidentally proves that the accused has committed an independent crime. There is no way that a prosecutor is to know when he has satisfied the jury on a main issue of a case; it is a mystery which the bar and the court would be grateful to have solved. It is, therefore, competent for the Government under proper circumstances and appropriate instructions from the Court, to permit evidence of other crimes, if it so desires, to prove the intent, state of mind, plan or scheme of the defendant in the particular offense for which he is being tried. United States v. Glory Blouse & Sportswear Co., 2 Cir., 158 F.2d 880.
In this case the same person to whom the sugar ration coupons were transferred during the latter part of May, 1945, testified that on at least two or three other occasions, occurring within two or three weeks subsequent to the first purchase; the last business dealing, however, during the end of the month of June, 1945, being the only one recalled other than the first occasion. Testimony in the record, and which was presented to the jury, indicates that at least the commission of two substantive offenses by the defendant, and the evidence as to the second offense was only proper for the jury to consider on the question of the defendant's intent concerning the ration coupons charged in the Information. In addition thereto, the jury should have been instructed that the evidence as to the other offense or offenses must be established by evidence which is plain, clear and conclusive; this being necessary before the jury could infer guilty intent therefrom in connection with the offense charged in the Information. In other words, in this case evidence of an offense other than the one set forth in the Information as being 'on or about May 26, 1945', was admissible to show a fraudulent plan, scheme, design or intent on the part of the defendant in transferring the sugar ration coupons on or about May 26, 1945. Henderson v. United States, 9 Cir., 143 F.2d 681.
Evidence which is relevant to prove one crime is not incompetent because it discloses commission of another. United States v. Rubenstein, 2 Cir., 151 F.2d 915; Miller v. United States, 9 Cir., 47 F.2d 120.
Relevant evidence is not made inadmissible because it tends to prove another distinct offense, especially here the evidence related to the where it has a natural tendency to corroborate or supplement admitted direct evidence. Under these circumstances an exception is made to the general rule excluding evidence of other offenses.
In this case I believe that error exists for the reason that the jury was permitted to pass upon the guilt of the defendant with evidence existing in the record as to the commission by the defendant of more than one substantive offense.
The evidence in this case would be admissible to show the general scheme, plan or intent of the defendant as to the commission of the offense set forth in the Information. However, before the jury could infer guilty intent in connection with the offense set forth in the Information, the other offenses must be established by evidence which is plain, clear and conclusive.
Since I believe that error exists, the motion for a new trial is granted. The Clerk of Courts is directed to place this proceeding as Case No. 1 on the Criminal Trial List to be presented for the consideration of the Court at the November Term, 1947.
© 1992-2004 VersusLaw Inc.