Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Before EVANS, SPARKS, and PAGE, Circuit Judges.
This is an appeal from a judgment of conviction upon an indictment against the appellants and five other persons. All but the appellants had either pleaded guilty or had been convicted.
The first count charges that the defendants who are named in the indictment unlawfully assaulted the postal clerk Peters, who was then and there in the possession of the United States mails upon this mail car, and unlawfully and feloniously robbed him of certain mail in the count described. In other words, it is charged that Peters, as the custodian of the United States mail, was robbed, and the count contains the additional averment that the robbery was made and committed with weapons, and that Peters' life was put in jeopardy by means of weapons, a dynamite bomb, machine guns, rifles, and shotguns.
The second count is substantially a charge of the same offense in slightly different language, descriptive of a charge of robbery committed by the use of weapons which were used in such a way as to put the life of Peters in danger.
The third count is a charge of a robbery of the same railway mail car by the same defendants at the same time and of the same mail, and is substantially the same charge as the first and second, except that there is eliminated therefrom the averment that guns and weapons were used.
The fourth count charges substantially the same offense as count No. 3.
Count 5 charges that the defendants stole and abstracted this certain mail from the United States mails.
The sixth count charges that they unlawfully had in their possession stolen mail, knowing that it had been stolen.
The seventh count charges that the defendants entered into a conspiracy to commit a robbery of the United States mails and to commit the offense alleged in the indictment in the prior counts.
The errors assigned and relied upon for a reversal of the judgment are:
First. There is no evidence to sustain the judgment against Litsinger.
Second. The court erred in calling Donovan as a court's witness after he had testified as a witness for the government; and in calling witnesses O'Brien and Meccia ...