Pearson v. United States

• Decision Date: 26 November 1951
• Docket Number: No. 11298.,11298.
• Citation: 192 F.2d 681
• Parties: PEARSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

192 F.2d 681 (1951)

PEARSON et al. v. UNITED STATES.

No. 11298.

United States Court of Appeals Sixth Circuit.

November 26, 1951.

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Thomas C. Farnsworth and Edward N. Vaden, Asst. U. S. Atty., Memphis, Tenn. (John Brown, Thomas C. Farnsworth and Edward N. Vaden, Memphis, Tenn., on the brief), for appellee.

L. E. Gwinn, Memphis, Tenn., and Thomas L. Robinson, Memphis, Tenn. (Thomas L. Robinson, R. Garland Draper and L. E. Gwinn, Memphis, Tenn., on the brief), for appellants.

Before HICKS, Chief Judge, and SIMONS and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

This case, involving a complicated factual situation, arises out of the hijacking of a large truckload of whiskey. The four appellants were convicted, on circumstantial evidence, of receiving and having in their possession liquor which had been stolen from a shipment in interstate commerce, with knowledge that the same had been stolen. Each appellant was sentenced to a term of ten years. In addition, appellants Pearson and Tinsley were sentenced to pay fines of $5,000 each and appellants Maxwell and Twitty, to fines of $500 each. Appellants' principal contention on appeal is that there was no substantial evidence to sustain their convictions. Other claims of error are also made and will hereafter be discussed. The following are the facts surrounding the robbery:

Herschel Helm was a truck driver employed by George A. Mueller & Company, a concern engaged in the wholesale liquor business, with its principal place of business in Springfield, Illinois. On instructions from the Mueller Company, Helm, driving a Mack truck and trailer, proceeded to Lawrenceburg, Indiana, on the night of December 29, 1949, to procure a load of liquor which the company had ordered from the Schenley Distilling Company. On the next day, December 30, 1949, the liquor, consisting of 540 cases, valued at $22,711.12, was loaded on his truck by Schenley employees. Helm pulled out of Lawrenceburg about noon, and on order of his company, proceeded to Cairo, Illinois, where he was to deliver a portion of his cargo to the J. B. Wenger Company. From Cairo he was then to continue on to Springfield, Illinois, to deliver the balance of the liquor to his employer, the Mueller Company. What follows is Helm's testimony, and since it is undisputed, and the jury, by its verdict, found in accord, it is to be accepted as proof of the facts therein set forth.

Driving from Indiana across Southern Illinois on his way to Cairo, Helm had arrived at Vienna, Illinois, a small town north of Cairo, about eight o'clock at night on December 30. At that hour, it was past the time when he could drive his load inside the yard of the liquor warehouse of the Wenger Company in Cairo, and the warehouse itself would not be open for business until eight o'clock the next morning. Accordingly, Helm spent the night in Vienna at a small hotel patronized by truckers, intending to drive to Cairo the next morning, parking his truck and trailer just off highway 146, in front of the hotel. About seven o'clock the next morning, December 31, Helm started from Vienna with his truck and trailer toward Cairo, and, after traveling about fifteen miles, while proceeding up a grade in low gear, at a point near the village of Cypress, Illinois, he was ordered to stop by a masked man, who was standing in the open door of a car that had been driven up alongside the left or driver's side of the truck, and who covered Helm with a pistol. Another man was driving the hijack car, but Helm could not see his face, and, because of the mask of the hold-up bandit and because his attention was centered on the gun, Helm was unable to give any description of him. He estimated that the hold-up took place about 7:30 A. M.

As soon as Helm stopped, the armed man got into the truck, pushing him over to the right. At the time Helm was wearing a zipper coat, which the hijacker pulled over his head, at the same time pulling the zipper over his face, effectually blindfolding him. He was then ordered to get out of the truck and led to the hold-up car, where he was forced to crouch on the floor in front of the driver's seat. The car was then driven away; later it was stopped and Helm was taken out and placed in the back of the car, where he was obliged to lie down, after his eyes were taped, and a burlap sack pulled down over his head. The car was then continuously driven along the highways until about three o'clock in the afternoon, when Helm was removed from the car and the tape taken from his eyes. The zipper coat was again pulled up over his face, his hands were tied behind him and he was left lying in the weeds by the side of the road, as the car drove away. After working his hands loose, and pulling the coat from his face, Helm walked about a quarter of a mile until he came to a tavern, near East St. Louis, Illinois, about 200 miles northwest of the scene of the hijacking. He then called the state police to report the robbery; and they arrived shortly thereafter. Helm did not know whether there was one man, or two, in the car in which he was driven away after the hijacking; but his impression was that there was only one.

Subsequent to the hijacking, the next that was heard of Helm's truck and the load of whiskey, as disclosed by the evidence, was about an hour after the robbery, when the truck and trailer were driven by an unknown man up to an intersection of two highways at Paducah, Kentucky, which is about thirty miles from Cypress. Appellant Pearson testified that he was at that point waiting for the delivery of a truckload of liquor, which he had purchased from one Leo Terrell the day before; that the driver of Helm's truck, who was not known to him, approached and told him he was Terrell's driver, and thereupon turned the truck over to him. This was about 8:30 in the morning. Pearson then immediately had Maxwell, one of his employees, drive the truck and trailer down through the states of Kentucky and Tennessee. Maxwell stated that from the time he got into the truck at Paducah, he drove without stopping until he reached the destination that Pearson had indicated, just outside of Memphis, Tennessee. Pearson and Tinsley, a guard employed by Pearson in his liquor business, preceded or followed the truck. They finally reached the point outside the city of Memphis, where they planned to stop, and some time after noon, drove into a tourist court, owned by Frank Belluomini. Belluomini, upon Pearson's request, undertook to find some negro farmhands and laborers to transfer the liquor to another truck, and proceeded down to a corner of the highways in a car driven by Tinsley. In the meantime, Pearson arranged to have an empty International truck brought over to the tourist court by his brother, who lived in the vicinity. Belluomini and Tinsley were successful in procuring the workers, and returned to the tourist court within about fifteen minutes. The International truck, which Pearson had arranged for by telephone, was shortly thereafter driven up to the place by Pearson's brother, and backed up to the side door of the truck that had been hijacked. The cargo of 540 cases of liquor was thereupon transferred from the hijacked truck to the International truck by the workers. Pearson then asked Belluomini if he could leave the newly loaded International truck at the tourist court overnight, and, upon being informed that he could, the hijacked truck was immediately driven away by Maxwell. With Maxwell in the truck was one of the workers, Elbert Smith, who had helped to transfer the liquor. Pearson and Tinsley drove ahead of the truck in a car. They proceeded ninety miles north to Dyersburg, Tennessee, thence to Tiptonville, and across the Mississippi River on a ferry into Missouri. They then drove their car and truck on a highway to a point about two miles from Risco, Missouri. There, at night, in the darkness, the truck was driven about 200 yards off the main highway and then for a distance of 75 feet on to a ditch-dump road — which is a narrow road of dirt, made when a drainage ditch is dug, and the earth from the ditch levelled off above and at one side of the ditch. Risco is approximately 135 miles north, and slightly east of Memphis. It is 70 miles southwest of Cairo, Illinois, and 125 miles west of Union City, Tennessee, where Leo Terrell, the man from whom Pearson claimed to have bought the liquor, lived. That same night, New Year's Eve, on which the truck and tractor had been driven to Risco, Pearson, Tinsley, the truck driver Maxwell, and Smith, drove back in their car to Memphis, arriving about midnight.

The truck and tractor remained on the ditch-dump road for some time, until it was noticed by a farmer living in the neighborhood, who, on January 8, 1950, notified the sheriff of New Madrid County, Missouri, of the circumstance. The sheriff came out on January 10, 1950, ordered the truck and tractor to be taken to the jailyard at New Madrid, the county seat, and informed the Missouri State Police of the matter. The state police immediately, in turn, notified the office of the Federal Bureau of Investigation at St. Louis, Missouri, and, on the same day, the resident agent of the Bureau at Cape Girardeau, Missouri, came to New Madrid. It was then discovered that the truck belonged to George A. Mueller & Company, of Springfield, Illinois, and was the one that had been hijacked. On January 18, 1950, Herschel Helm arrived in New Madrid, to repossess for his employer the truck which had been taken from him by the hijackers on December 31.

It appears that the hijacking had first been reported to the Federal Bureau of Investigation on January 2, 1950, and on the same day, the Memphis office of the Bureau flashed a notice of the crime to the Tennessee State Highway Patrol, the Memphis Police Department, and the sheriff's office of Shelby County, in which Memphis is located. However, nothing appeared to indicate at...