Alexander v. United States

• Decision Date: 10 December 1965
• Docket Number: No. 22191.,22191.
• Citation: 354 F.2d 59
• Parties: Sylvester ALEXANDER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

354 F.2d 59 (1965)

Sylvester ALEXANDER, Appellant, v. UNITED STATES of America, Appellee.

No. 22191.

United States Court of Appeals Fifth Circuit.

December 10, 1965.

Fred C. Sexton, Shreveport, La., for appellant.

Edward L. Shaheen, U. S. Atty., Shreveport, La., Q. L. Stewart, Asst. U. S. Atty., Western Dist. of Louisiana, for appellee.

Before JONES, WISDOM and GEWIN, Circuit Judges.

JONES, Circuit Judge.

During a remodeling of the banking premises of the Bossier (Louisiana) Bank and Trust Company, a shortage of $6,500 in twenty dollar bills from a teller's cage was discovered after the teller returned from lunch on February 2, 1962. The appellant, Sylvester Alexander, and his friend and cousin, James Edward Pickens, were charged by a three count indictment in which both were accused by the first count with conspiring, on or about February 1, 1962, to enter the bank with intent to commit larceny. The second count charged Alexander with entering the bank on or about February 2, 1962, with intent to commit larceny, and the third count charged Pickens with a like crime. Pickens entered a plea of guilty to the conspiracy charge and count three was dismissed.

On the trial of Alexander employees of the bank testified as to the teller's shortage occurring during his lunch period on February 2, 1962, and that the shortage was in twenty dollar bills. Several bank employees and an employee of the contractor who was doing the remodeling job testified as to seeing a slender dark-skinned Negro emptying waste baskets and cleaning up in the teller's cage on February 2, 1965. Some of them said the dark-skinned Negro had a moustache. Most of them testified that the man they saw in the bank resembled Alexander. None of those who saw the slender, dark-skinned Negro on February 2 was willing to state that Alexander was the man they saw.

David Morris, a witness for the Government, is identified in the Government's brief as a colored porter employed by the bank. He testified that around noon on February 1, 1962, he saw Alexander in a hallway of the bank with a window-washer's bucket and stick. This is the only positive identification of Alexander that placed him in the bank building and it on a day earlier than the occurrence of the shortage, and in a portion of the bank building other than the banking room.

The opening statement of Government counsel is not in the record. It should have been. 28 U.S.C.A. § 753(b); Fowler v. United States, 5th Cir. 1962, 310 F.2d 66; Stephens v. United States, 5th Cir. 1961, 289 F.2d 308. Elsewhere in the record it is shown that in his opening statement the prosecutor announced that one of his witnesses would be Pickens. During the trial Government counsel stated that he had intended to use Pickens as a witness because of a signed statement he had given the F.B.I., as well as other information "which linked Pickens and Alexander together in the conspiracy charged and as to which Pickens entered a plea of guilty." Counsel went on to say that Pickens had repudiated the conspiracy with Alexander and this, coupled with Pickens' signed confession required the Government to move for an order permitting Pickens to be called as a hostile witness. The court granted the motion. Pickens was sworn, gave his name and address, admitted that Alexander was his cousin and his friend, and declined to answer any question about the bank or its money on the ground that his answers might be incriminating. While attempting to elicit information from Pickens, Government counsel, apparently reading, said, "On Friday morning at approximately nine A.M. on February 2, 1962, Sylvester Alexander * * *" The court interrupted with "Wait a minute. Don't read any part of the confession." The jury was instructed to disregard the statement just made. At the suggestion of the court the Government introduced a copy of the minutes of the court showing Pickens' plea of guilty to the first count of the indictment charging him, jointly with Alexander, of conspiracy. The jury was told that count two against Pickens had been dismissed.

Thurman P. Kelley, an F.B.I. agent, testified for the Government. He told of receiving from a police officer two apparently new twenty dollar bills which had been found on Alexander when he was arrested. He told of receiving a signed statement from Pickens and reference was made to the plea of guilty which Pickens had made to the conspiracy charge. He related a search made of Pickens' residence and the finding there of $780 in apparently new twenty dollar bills. The first six of the eight digits of the serial numbers of this currency were the same as the first six digits of the serial numbers of the bills taken from Alexander. All of the currency was received in evidence. The agent was asked whether he acquired information as to where the money came from that he found in Pickens' house. Over objection he was permitted to quote Pickens as saying that "It came from Sylvester Alexander." After the answer another objection was interposed and the court sustained the objection and instructed the jury to disregard the answer. The agent was the last witness for the Government. A motion for a directed verdict was denied. The defense offered no testimony. The day was Friday and the court adjourned until Monday.

When the court resumed on Monday morning the court, out of hearing of the jury, made the following announcement:

"After reflecting upon this case over the weekend, the Court has concluded that it was in error in admitting evidence as to the participation of James Edward Pickens in this matter, particularly insofar as the judgment of commitment based upon his plea of guilty on November 30, 1964 was admitted into evidence and read to the jury.

"Inasmuch as Pickens took the Fifth Amendment as to practically all questions asked him and there is no other evidence of a conspiracy and because the Court also is convinced that the written confession given by Pickens to the FBI Agents was not a proper subject of inquiry, and for the additional

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