335 F.2d 919 (10th Cir. 1964), 7728, Cartwright v. United States

• Citation: 335 F.2d 919
• Party Name: James Henry CARTWRIGHT, Appellant, v. UNITED STATES of America, Appellee.
• Case Date: August 28, 1964
• Court: United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit

Page 919

335 F.2d 919 (10th Cir. 1964)

James Henry CARTWRIGHT, Appellant,

v.

UNITED STATES of America, Appellee.

No. 7728.

United States Court of Appeals, Tenth Circuit.

Aug. 28, 1964

Page 920

John R. Trigg, Denver, Colo., for appellant.

Melvin M. Gradert, Asst. U.S. Atty. (Newell A. George, U.S. Atty., on the brief), for appellee.

Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

SETH, Circuit Judge.

Appellant was tried by a jury and convicted on a charge of transporting a forged check in interstate commerce in violation of 18 U.S.C.A. § 2314. Appellant asserts that the trial court erred in denying his motion for acquittal made at the conclusion of all the evidence and further that the verdict is not supported by substantial evidence.

The Government asserted that the appellant on October 11, 1962, transported from El Paso, Texas, to Liberal, Kansas, a check knowing it to be forged. The prosecution sought to prove that the appellant, together with an accomplice who was one of the prosecution's principal witnesses, left El Paso on October 9 or 10, 1962, taking the check in question with them, and traveled by automobile into New Mexico, Texas, and to Liberal, Kansas, where the check was cashed. In addition to the accomplice, who supplied most of the details concerning the charge, other Government witnesses included motel managers in El Paso and Liberal, the grocery store clerk who cashed the check, and a service station owner in the vicinity of Liberal.

The appellant urges on his two principal points that there were disparities and gaps in the Government's case. Appellant argues principally that the accomplice testified that he left the motel in El Paso on October 10, 1962, and that this testimony conflicts with the motel manager's testimony to the effect that he saw appellant in El Paso on the morning of October 11. Appellant further argues that the motel manager in Liberal did not properly identify the appellant and the accomplice, but only identified the automobile in which they were riding. Further, appellant urges that the grocery store clerk who cashed the check did not adequately identify appellant, but only the check which he cashed. Appellant also points out that the three alibi witnesses who testified for the appellant placed him in El Paso during the week in question. In this connection, it should be observed that the offense was committed in October 1962, and that appellant was tried in January 1964. As indicated appellant argues that neither the standards set up in Rule 29 of the Federal Rules of Criminal Procedure nor the general standards regarding the sufficiency of evidence were followed in the trial court.

Rule 29(a) of the Federal Rules of Criminal Procedure, in providing for motions for judgment of acquittal in place of motions for directed verdict, states that such a motion should be granted after the evidence on either side is closed if the evidence is insufficient

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to sustain a conviction for...