411 F.2d 644 (5th Cir. 1969), 25266, Tillery v. United States

Docket Nº:25266.
Citation:411 F.2d 644
Party Name:Horace Addison TILLERY, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 14, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 644

411 F.2d 644 (5th Cir. 1969)

Horace Addison TILLERY, Appellant,

v.

UNITED STATES of America, Appellee.

No. 25266.

United States Court of Appeals, Fifth Circuit.

May 14, 1969

Page 645

Henry Clayton Custer, Albany, Ga., for appellant.

Walker P. Johnson, Tyrus R. Atkinson, Asst. U.S. Attys., Macon, Ga., for appellee.

Before COLEMAN and GOLDBERG, Circuit Judges, and SKELTON, Judge of the Court of Claims. [*]

SKELTON, Judge:

On July 24, 1966, Clardy's Department Store in Montgomery, Alabama, was burglarized, and over $12,000 in televisions, stereo record players, and other merchandise was stolen. Thereafter, Horace Tillery, who owned a business adjacent to the burglarized store, was indicted by a federal grand jury in Macon, Georgia. In Count One, Tillery was charged with violating 18 U.S.C.§ 371 (1964), by entering into a conspiracy with Grady Tillery, Leo Weaver, and John Padgett to (a) transport stolen merchandise in interstate commerce from Alabama to Georgia, knowing that the merchandise was stolen, in violation of 18 U.S.C. § 2314 (1964); and (b) receive, store, and sell goods transported in interstate commerce, knowing them to have been stolen, in violation of 18 U.S.C. § 2315 (1964). To support its charge against the appellant, the grand jury cited eight overt acts committed in furtherance of the conspiracy:

1. The appellant, Horace Tillery, rented a truck from Avis rentals in Montgomery, Alabama, on July 24, 1966.

2. On July 24, 1966, appellant, John Padgett, and Grady Tillery (Horace Tillery's brother) burglarized Clardy's Appliance Store in Montgomery, Alabama, and stole approximately 50 television sets.

3. On July 25, 1966, Grady Tillery purchased gas for the truck at Clark's IGA store in Barwick, Georgia.

4. On July 25, 1966, Leo Weaver met with the appellant, John Padgett, and Grady Tillery at the Del Mar Motel, Valdosta, Georgia.

5. On July 25, 1966, the appellant, Leo Weaver, John Padgett, and Grady Tillery transferred the television sets to a cabin on the outskirts of Valdosta, Georgia.

6. On July 26, 1966, Leo Weaver concealed the television sets in the

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rear of the United States Post Office, Substation Number Two, in Valdosta, Georgia.

7. On August 3, 1966, Leo Weaver sold to Joel Edward Love approximately 24 television sets. The transaction took place near a small church on the outskirts of Clyattsville, Georgia.

8. On August 22, 1966, Leo Weaver sold to Derward Anderson approximately 12 televisions sets. This transaction occurred at a vacant farm house on the outskirts of Valdosta, Georgia.

In Count Two, appellant was charged with violating 18 U.S.C. § 2314 (1964), by transporting in interstate commerce goods known to have been stolen. In Count Three, the appellant was charged with violating 18 U.S.C. § 2315 (1964), by receiving, storing, and selling merchandise which had been transported in interstate commerce, knowing such merchandise to have been stolen. Horace Tillery was convicted on Counts One and Two and sentenced to two five-year terms, to run concurrently. We reverse the judgment below on the ground that the court committed plain error in failing to include in its charge to the jury a warning regarding the reliability of accomplice testimony.

Virtually all of the government's case against the appellant rested upon the incriminating testimony of John Padgett, an admitted co-conspirator and accomplice, who was not named as a defendant in the prosecution. Prior to his testimony at the trial, however, Padgett had given four different statements about the burglary of Clardy's Appliance Store and the transportation and disposition of the merchandise. The first...

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