The opinion of the court was delivered by: SNYDER
On March 1, 1973, the Grand Jury returned a seven count Indictment against Luther Lewis, J. and Glenwood Richardson. Count one charged defendants Luther Lewis, Jr. and Glenwood Richardson with conspiracy to violate Section 495 of Title 18, United States Code relating to forging or uttering writings with the intent to defraud the United States. Numerous overt acts were charged against the named defendants and also one Ida Lewis, a co-conspirator but not a defendant in this action. These were:
"1. On or about the 3rd day of October, 1967, IDA LEWIS received United States Treasury Check No. 38,040,874 dated October 3, 1967, in the sum of $128.70 payable to Mike Honick, 1834 Willow Street, McKeesport, Pennsylvania, from defendant GLENWOOD RICHARDSON, the said IDA LEWIS then forged the endorsement of the payee and uttered said check, bearing said forged payee endorsement to and upon the Peoples Union Bank & Trust Company of McKeesport, Pennsylvania."
"2. On various dates during the months of October, 1967, November 1967, December 1967, January 1968, February 1968, and March 1968, in the Western District of Pennsylvania, defendants GLENWOOD RICHARDSON, JR. and LUTHER LEWIS, JR. did meet and steal United States Treasury checks from mail boxes and, together with co-conspirator IDA LEWIS, did forge payee endorsements on said checks and utter and publish said checks bearing said forged payee endorsements to and upon various commercial and banking institutions."
"3. On various dates during the months of October 1967, November 1967, December 1967, January 1968, February 1968, and March 1968, defendant LUTHER LEWIS, JR. transported defendant GLENWOOD RICHARDSON, JR., to various shopping centers in the Western District of Pennsylvania for the purpose of aiding and abetting defendant GLENWOOD RICHARDSON, JR., in the cashing of stolen United States Treasury checks, defendant LUTHER LEWIS, JR., knowing the said checks to have been stolen."
Counts two through six charge defendant Richardson with the substantive violations of 18 U.S.C. Section 495; defendant Richardson is a fugitive and the case was tried non-jury only as to defendant Lewis.
The prosecution called three witnesses during the course of the proceedings. These were Ida Elizabeth Owens, the alleged co-conspirator, who lived with the defendant from 1965 to 1967 (Tr. pp. 6-7); Daniel E. Mayer, the investigative agent of the United States Secret Service; and Frank J. Flit, a special investigator of the Pittsburgh Postal Inspector's office.
Much of the testimony concerned the validity of the marriage of Ida and Luther Lewis. We make a finding of fact that no valid marriage existed between Luther and Ida. The reasoning of the Court will follow in the attached Memorandum of Law. Therefore, since no valid marriage existed, no marital privilege existed and Ida was competent to testify against Luther.
Ida Owens Lewis testified, in substance, that Luther Lewis, Glenwood Richardson and she participated in an operation whereby government checks, i.e., social security checks and income tax checks were stolen from mailboxes, signed by one of the defendants and cashed in banks, supermarkets or grocery stores. The defendants would purchase wallets from five and ten cent stores and use the false identification to cash the checks and then they would split up the cash between them. (Tr. pp. 10-12). Specifically she said that on or about March 2, 1968, Luther Lewis stole a government check from a mailbox which was made payable to Mary Taylor of 8139 Connemaugh Street, Pittsburgh 21, Pennsylvania. (GX 2) Ida endorsed this check but on learning that someone saw Luther take the check, she then placed it back in a mailbox. (Tr. p. 18).
Daniel E. Mayer testified that Luther Lewis voluntarily confessed to him his involvement in the check cashing scheme. (Tr. pp. 46-49-50). See also GX 3, 4, and 5. He stated that:
"He (Luther) made a verbal statement to myself and Agent Swivel, basically, that he had been engaged in the cashing of checks with Ida Lewis and with Glenwood Richardson. At that time he didn't want to give a written statement."
Later, this statement was reduced to writing and signed by Luther Lewis, Jr. (Tr. p. 48).
Frank J. Flit, the last prosecution witness, is a special investigator with the Pittsburgh Postal Inspector's office. His duties include the investigation of lost or stolen U.S. Treasury and Pennsylvania State Welfare checks, etc. (Tr. p. 66). He testified that the procedure on dispersing social security checks is to mail the checks a day or two prior to the date that said checks can be negotiated. The Post Office then disperses said checks so that they will be received by the payee on the date that these checks can be negotiated. (Tr. pp. 66-67).
Mr. Flit testified on cross examination that:
"Q. Conceivably, a check then dated on March 2nd, may have been taken from the Post Office itself either February 28, or 29, as the case may be, is that correct?"
After the testimony of Mr. Flit, the prosecution then rested its case. Defense Motion for Judgment of Acquittal was denied; defendant ...