Harris v. United States, 16007.

• Citation: 261 F.2d 897
• Decision Date: 12 January 1959
• Docket Number: No. 16007.,16007.
• Parties: Monroe B. HARRIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

261 F.2d 897 (1958)

Monroe B. HARRIS, Appellant, v. UNITED STATES of America, Appellee.

No. 16007.

United States Court of Appeals Ninth Circuit.

December 1, 1958.

Rehearing Denied January 12, 1959.

Samuel C. McMorris, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Bruce A. Bevan, Jr., Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

A jury found the appellant guilty of the offense of breaking into a building used as a post office, in violation of Section 2115, Title 18 U.S.C.A.¹ Upon imposition of sentence, a timely appeal was filed in this Court.

The original indictment charged the appellant Monroe B. Harris, one Thomas B. Venters and one George W. Jack, with the commission of the offense. At the commencement of the jury trial, on motion of counsel for the United States, the indictment was dismissed as to the defendant Thomas B. Venters and he was charged by information of the offense of having received stolen property with knowledge that the same had been stolen. Without objection on the part of the appellant, the trial court consolidated for trial the offense charged in the indictment and the offense charged in the information. At the conclusion of the testimony, on motion of counsel for the United States, the charge in the indictment was dismissed as to the defendant George W. Jack on the ground of insufficiency of the evidence, and a judgment of acquittal was entered as to that defendant. The jury returned its verdict finding the appellant guilty of the offense charged in the indictment, and finding the defendant Thomas B. Venters guilty of the offense charged in the information. No appeal was taken by the defendant Venters.

The specifications of error relied upon by appellant are:

1. Insufficiency of the evidence to support the verdict of guilty;

2. Hearsay evidence was admitted against the appellant which was prejudicial and deprived the defendant of a fair trial;

3. Violation of due process resulting from the admission of testimony of the government's witness, Marvin Williams;

4. Alleged misconduct on the part of the prosecuting attorney; and

5. Alleged failure on the part of the trial court to properly instruct the jury.

Before considering the specifications of error, we will briefly summarize the testimony which was before the jury for consideration. In the early morning hours of July 8, 1956, at approximately one a.m., one Robert E. Lee, who lived opposite the United States Post Office in question, heard a noise and upon looking out of his rear window saw men in the alley behind the post office and heard their voices. In addition, Mr. Lee also observed a truck with the red letters "Central" on top thereof.

At approximately two a.m. of the same morning, Mr. Lee again heard a noise from the rear of the post office and called the police. He saw an object on the ground in the alley behind the post office, and when he later went to the rear of the post office after police had arrived he observed a large safe lying on the ground in the same position in which he had previously observed the object from his window.

Later examination of the building in which the post office was located revealed that there was a hole in the roof caused by the removal of roofing paper and approximately four or five pieces of one by six planking. The hole was large enough to permit a person to gain access to the inside of the post office. In addition, the rear platform doors of the post office were open, as well as the door to the inspector's lookout which opened off of the back platform. Two safes, one large and one small, had been removed from the premises, and the petty cash drawer of the post office had been pried open and ninety-five cents in change was missing. The large safe which was missing from the inside of the post office was found to be lying on its side in the loading dock area just off of the platform at the rear of the post office.

The appellant concedes in his brief, as indeed he must, that the post office building had been broken into and the post office burglarized.

The appellant was arrested by a Los Angeles police officer approximately one and one-half blocks from the post office at approximately three a.m. on the morning of July 8, 1956. For some twenty-five minutes prior to the arrest of the appellant, the officer had under surveillance a truck bearing the red letters "Central" which was parked on the street. The officer saw appellant approach on foot, get into the truck and drive the same away for approximately a block and a half, at which time the officer placed the appellant under arrest. The rear of the truck platform was found to be damaged.

Upon searching appellant, the officer observed that dirt was matted in his hair, his hands were scraped and bleeding, and there was blood upon the appellant's shirt. Appellant told the officer that he did not know anything about the truck and that he had obtained three rides that evening by hitch-hiking. The appellant further stated that the last person that had given him a ride, a man in a green 1956 Chevrolet automobile, had asked him if he would like to make three or four dollars by driving a truck, to which appellant assented since he did not have any funds on him. Appellant stated that he was driven to the location of the truck by the man in the green Chevrolet sedan.

The only witness testifying on behalf of the appellant stated that he had met the appellant in the early morning hours of July 8, 1956, and had driven him to the vicinity of the truck. The police officer testified that no automobile drove the appellant to where the truck was parked. At the time of the appellant's arrest approximately $3.40 was found on his person. The police officer asked the appellant if he knew a man by the name of Marvin Williams. Appellant stated that he did not. However, in appellant's possession at the time of his arrest was a notebook containing the name, address and phone number of Marvin Williams.

The defendant Venters (charged with having received stolen property) testified that appellant came to his home on the morning of July 7, 1956, and asked him if he could rent a garage for a friend by the name of Williams. The small safe which had been taken from the post office was found in Venters' garage.

The government's witness, Marvin Williams, testified that between 1:30 and 2:00 a.m. on July 8, 1956, the appellant came to his home and asked him to help the appellant move something; that Williams then went to an automobile with the appellant and, together with the defendant Venters, drove to the vicinity of the post office; that Williams observed a large safe lying on its side on the ground behind the post office, and that appellant then stated to the persons present, "Let's see if we can lift this."

On cross examination by counsel for the defendants Williams testified that he was arrested on July 8, 1956, taken to police headquarters, and was thereafter beaten. He testified that he was arrested by the police officers, and not by the men from the Post Office Department. Williams testified that when he was first arrested he told the officers a lie, to the effect that he had been in the vicinity of the post office to get a drink and did not know anything else about the post office. Later, following the alleged beating by the officers, Williams testified that he told the officers that his previous statements were untrue, and that he then told them the truth, and that his testimony before the jury was true.

It is the appellant's contention, under the specification of insufficiency of the evidence to support the guilty verdict, that unexplained possession of stolen property is not by itself sufficient to justify conviction of burglary. Assuming appellant to be correct in his statement of law, which he is not, the record discloses much incriminating evidence against the appellant in addition to his unexplained possession of stolen property. Appellant was in possession of the stolen safe in the morning hours in the back of the just burglarized post office. Appellant attempted to lift the safe and attempted to secure assistance. He was arrested in the vicinity of the post office, and his appearance, together with other evidence before the jury, would reasonably support the inference that it was he who had gained access to the post office through the roof. Appellant made several statements to the police officers at the time of his arrest which were in conflict with other testimony which was before the jury. Appellant was in possession of a truck shortly after the burglary, and the jury could reasonably infer that the truck had been used to transport the small safe to the garage of the defendant Venters. Moreover, the garage in which the small safe was found had been rented by the appellant the day before the burglary.

There is abundant incriminating testimony in addition to the possession by the appellant of stolen property, and the jury was fully justified in reaching the guilty verdict. In support of his contention that unexplained possession of stolen property will not justify the conviction for burglary, the appellant relies upon a number of California decisions. Whatever the rule may be in California, the rule in federal courts is to the contrary. See Booth v. United States, 9 Cir., 154 F.2d 73; Morandy v. United States, 9 Cir., 170 F.2d 5; Edwards v. United States, 78 U.S.App.D.C. 226, 139...