420 F.2d 1096 (7th Cir. 1970), 17573, United States v. Hamilton

Docket Nº:17573.
Citation:420 F.2d 1096
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Elmer G. HAMILTON, Defendant-Appellant.
Case Date:January 15, 1970
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1096

420 F.2d 1096 (7th Cir. 1970)

UNITED STATES of America, Plaintiff-Appellee,


Elmer G. HAMILTON, Defendant-Appellant.

No. 17573.

United States Court of Appeals, Seventh Circuit.

January 15, 1970

Rehearing Denied Feb. 12, 1970.

Page 1097

David B. Keller, Livingston, Dildine, Haynie & Yoder, Fort Wayne, Ind., for defendant-appellant.

Alfred W. Moellering, U.S. Atty., Fort Wayne, Ind., for plaintiff-appellee.

Before HASTINGS and KNOCH, Senior Circuit Judges, and DILLIN, District Judge. [a1]

DILLIN, District Judge.

Defendant Hamilton has appealed from his conviction, by a jury, on each count of a two count indictment charging him with conspiracy to receive, conceal and possess stolen mail, 1 and with the substantive offense of knowingly having stolen mail in his possession. 2 We affirm.

Turning our attention first to the substantive count, and considering the evidence in the light most favorable to the government, as we must, United States v. Bruni, 7 Cir., 1966, 359 F.2d 807, cert. den. 385 U.S. 826, 87 S.Ct. 59, 17 L.Ed.2d 63, it is apparent that the evidence was more than ample to justify the verdict of the jury, and indeed the defendant does not contend to the contrary. According to the evidence, thus considered, a bag of mail was stolen from a United States mail relay station in Hammond, Indiana, on March 11, 1968, and on the evening of the same day defendant arranged a meeting with one Allen, displayed to him checks and other items which he stated he had 'snatched' from the mail, and agreed to meet with Allen on the following day to cash the checks, which he then divided with Allen. On the following day the two met in Munster, Indiana, at an agreed site and were sitting in an automobile holding a portion of the stolen checks in their hands when they were arrested by postal inspectors who had been alerted to the plan by Allen. Other stolen checks were on the seat of the automobile between the two men. Certain of the checks were received in evidence on proof of their having been placed in the mail and not delivered according to the address on the envelopes in which they were contained.

Page 1098

The defendant testified in his own behalf to the effect that it was Allen, not he, who arranged the first meeting, that Allen then declined to discuss the purpose of the meeting but instead arranged for the second meeting at Munster, that only at such second meeting was he aware that any checks were to be discussed, and only then when Allen produced them a few moments before the arrest. In short, his contention is that he was 'framed' by Allen, and that he never had any knowing or unlawful, as distinguished from a mere fleeting, momentary and innocent possession of the checks. His sole ground for appeal on the possession count is that the trial court's instruction No. 23 did not adequately advise the jury of his theory of the case, and...

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