Smyly v. United States

• Decision Date: 24 February 1961
• Docket Number: No. 18479.,18479.
• Parties: Patricia Yvonne SMYLY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

287 F.2d 760 (1961)

Patricia Yvonne SMYLY, Appellant, v. UNITED STATES of America, Appellee.

No. 18479.

United States Court of Appeals Fifth Circuit.

February 24, 1961.

John R. Locke, Jr., San Antonio, Tex., for appellant.

Russell B. Wine, U. S. Atty., Arthur L. Luethcke, Preston H. Dial, Jr., Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before TUTTLE, Chief Judge, and JONES and BROWN, Circuit Judges.

TUTTLE, Chief Judge.

This appeal attacks a conviction based partially on the reception in evidence of extra-judicial admissions by appellant in a Dyer Act prosecution.¹

It is the burden of appellant's contention here that proof of admissions made by her following arrest or apprehension of appellant and Larry Hoover, the driver of the car, but repudiated by her on her trial, was illegally admitted by the trial court or was illegally considered by the court in permitting the case to be submitted to the jury, because, so she says, there was a failure of corroboration of the admissions under the standards set by the Supreme Court in Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192, and Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101.

Entirely independent of the admissions, evidence which could be believed by the jury showed that in the vicinity of Johnson City, Texas, in the late evening of April 24, 1960, appellant, a married woman, 24 years of age, was a passenger in an automobile that was halted by police following a chase at a speed of 100 miles an hour and after the police had fired a warning bullet; that the automobile was the property of a resident of Mobile, Alabama, and that it had been stolen either one or two nights earlier by one Larry Hoover, a 17-year old, who was driving the car at the time of the chase and arrest; that appellant had accompanied Hoover from Mobile, had shared the expenses of the trip with him, including the sale by her of an electric iron en route to obtain money which they spent for gasoline for the car; that the couple were headed for Mexico; that appellant was married, but separated from her husband and was working at a bar or cafe in Mobile; that she had left two children behind in Alabama; Hoover had already been convicted on his plea of guilty under the Dyer Act and he testified at appellant's trial that he alone stole the automobile and that he told her he had borrowed it from a friend and that she knew nothing about the theft until the chase occurred. On the trial the appellant denied knowledge that the car was stolen until just before the arrest.

The admissions which are here under attack were offered in the form of testimony by three officers.

Texas Highway Patrolman, Arlie James, testified after relating the facts about the arrest as follows:

"I asked Mrs. Smyly, after having identified her, I asked her if she was with Mr. Hoover when the car was taken or stolen. She stated to me that she was. I asked her where she and Mr. Hoover had been prior to taking the car. She stated to me that she had been at her apartment in Mobile, Alabama. They had left the apartment together, walking, came upon this parked vehicle, parked on the street in a residential area with the key in the ignition switch. They got in the vehicle, drove it back to her apartment to pick up her personal effects, and after some one to two hours, possibly, left town. At that time I asked her where they had intended to go, provided they hadn\'t been apprehended. She stated to me that they were on their way to Mexico. I asked her if she had any particular reason for going to Mexico, and she shrugged her shoulders."

Federal Bureau Investigation Agent, James C. Webb, Jr., testified as follows:

"I talked to Mrs. Smyly about the alleged theft of a 1955 Ford, which occurred in Mobile, Alabama, which was recovered in Gillespie County, Texas. Mrs. Smyly informed that on or about April 22, 1960, she was at the Paradise Night Club in Mobile, and there met Larry Hoover. She said they left the night club at approximately 1:00 a. m. on the morning of April 23, 1960, and returned to her apartment. She said they were at her apartment for about 45 minutes, at which time they both left, and went down the street there in Mobile. She said they walked around on the streets for a short time. They came upon a 1955, light colored, four-door Ford, which was parked on a street between two residences. She said the key was in the ignition of this car, so both of them got into the vehicle and returned to her apartment. They were there approximately 10 or 15 minutes, during which time she packed some of her clothes.

"They then left Mobile at approximately 2:15, 2:30 a. m., same morning. They drove from Mobile to New Orleans, Louisiana, where they ran out of gas. She said they then sold an electric iron, which she had brought with her, and with this money, they purchased some gas for their car.

"She said they then left New Orleans and continued traveling west on U.S. Highway 90. She said she recalled going through Houston, Texas, recalled going through Austin, Texas, and coming to Johnson City, Texas. She said they arrived there at approximately 6:30 P.M. on the night of April 24, 1960, where they ate dinner at a local cafe. She said they were at this cafe for approximately two hours or so, after which time they left, and while still in Johnson City, they obtained some gas out of a school bus. She said after getting this gas, they continued toward Fredericksburg, and were subsequently stopped by a Texas Highway patrolman."

Deputy City Marshal, Wilfred Dittmar, testified that he was present at the James interview and in response to the question, "* * * do you recall what the defendant said about the alleged theft of the automobile?", the appellant replied:

"Well, she stated that this boy Hoover had met her at a night club, a bar, whatever it was; I don\'t remember; and they left there, and they went up to her apartment. They stayed up there at her apartment for a while, and then they started walking in the street, and they came upon this \'55 Ford with keys in it, and they drove back to her apartment, packed her clothes, and they left Mobile."

Appellant's counsel offered no objection of any kind to the testimony of Webb and Dittmar. The only objection to James's testimony was on the ground that the alleged statement by appellant was not voluntary. This ground was not developed, and that issue is not now before us. This failure of counsel to object to the introduction of evidence now claimed to be inadmissible would normally prevent the party from complaining thereabout on appeal. Rule 51 F.R.Cr.P., 18 U.S.C.A., Butler v. United States, 5 Cir., 254 F.2d 875, 876. The appellant here did, however, move for a judgment of acquittal at the conclusion of the case, assigning as a ground therefor the following:

"2. The evidence is insufficient to prove that Defendant knew the automobile was stolen at the time it was transported in interstate commerce, since the Government\'s proof thereof is based solely on asserted extrajudicial statements of the Defendant, as opposed to the contradictory direct testimony in open court of the only two witnesses who have personal knowledge of these facts."

It is plain from a reading of this motion, counsel still made no complaint of the consideration by the trial court, in passing on the motion to acquit of all the evidence that had been introduced, including the testimony concerning the admissions of the accused. The motion was posited solely on the proposition that the admissions had been overcome, as a matter of law, by the controverting testimony by the accused and her convicted companion. Thus, neither upon the introduction of the evidence nor at any time before the submission of the case to the jury did counsel raise the point that is here relied on for reversal; that is that the extra-judicial admissions of the accused either were inadmissible or were without probative value because they were without corroboration as they touched upon her knowledge that the vehicle was stolen.

It was not until after the verdict of guilty and after the court had passed sentence that counsel first gave the trial court an opportunity to consider the point that is now raised here. In a "motion for acquittal and in the alternative for a new trial", filed five days after conclusion of the trial and passage of sentence, appellant asserted the following ground:

"3. Knowledge that the automobile was stolen is the corpus delicti of the offense with which Defendant was convicted and since the Government has relied for proof thereof solely on the uncorroborated extrajudicial admissions of the Defendant, the evidence is insufficient to sustain the conviction."

The rule that a party may not go through the form of a trial, permit evidence to be adduced without objection, and then let the case be submitted to a jury without calling on the trial court to pass upon questions touching on the admissibility or possible limitations as to the use of some of the evidence, and then after an adverse verdict question the legality of such matters not presented to the trial court for a ruling is based not only on the clearest implications from the language of Rule 51, but it accords with common sense in the administration of justice. We have repeatedly held that Appellate courts are courts for the review of errors of law committed by the trial courts, "Normally the trial court is not put in error for acts or omissions that are not brought to its attention by motion or request for ruling." Smith v. United States, 5 Cir., 265 F.2d 14, 18, certiorari denied 360 U.S. 910, 79 S.Ct. 1297, 3 L.Ed.2d 1261. Any other rule would put a premium on trifling with the trial court and the entire jury system.

The state of the law in the Federal Courts as to the exact requirement, when the point is adequately presented, of the nature and quantity of corroborative testimony necessary to justify consideration of...