Beatty v. United States, 8384.

• Citation: 357 F.2d 19
• Decision Date: 21 February 1966
• Docket Number: No. 8384.,8384.
• Parties: Donald Eugene BEATTY, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

357 F.2d 19 (1966)

Donald Eugene BEATTY, Appellant, v. UNITED STATES of America, Appellee.

No. 8384.

United States Court of Appeals Tenth Circuit.

February 21, 1966.

William F. Klas, Englewood, Colo., for appellant.

James R. Ward, Asst. U. S. Atty., Kansas City, Kan. (Newell A. George, U. S. Atty., and Thomas E. Joyce, Asst. U. S. Atty., Kansas City, Kan., on the brief), for appellee.

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

SETH, Circuit Judge.

The appellant was charged with transporting or causing to be transported in interstate commerce a forged check in violation of 18 U.S.C. § 2314. He was tried by a jury, convicted and sentenced.

The record shows that the defendant used a check drawn on a Missouri bank to purchase tires and to secure some cash at a filling station in Prairie Village, Kansas. The check was deposited by the filling station operator to his account, and was forwarded through banking channels to the Missouri bank on which it was drawn. The check blank had been stolen during the course of a burglary on the Kansas City, Missouri, offices of the Pipeline Inspection Company.

The defendant here urges that the trial court committed error in that there was insufficient evidence as to the interstate transportation of the check, as to knowledge that the check was forged, and as to his criminal intent. The defendant also urged that it was error to admit hearsay testimony as to the cashing of the check at the filling station, and further that no cautionary instructions were given as to the testimony of a witness he here asserts was an accomplice.

The defendant further assigns as error testimony given by an agent of the Federal Bureau of Investigation that the defendant had refused to provide samples of his handwriting.

As to the matter of the sufficiency of the evidence, the record shows, as indicated above, that the check in question was drawn on a Missouri bank and was given in Kansas in connection with the purchase of tires. The check was identified by an official of the Missouri bank as having been presented at such bank for payment. The witness further testified that it was not signed by an agent of the company, and that payment had been stopped upon the check for the reason that it was among blank checks stolen from the company offices of the Pipeline Inspection Company. An FBI agent testified that he questioned the defendant following his arraignment, and defendant told him that he and a witness Brewer were in Kansas City, Missouri, where a man by the name of Larrabee told them that he had some checks of the Pipeline Inspection Company which had been obtained in a burglary. Defendant also related to this witness that one of these checks was filled out by a woman friend of Larrabee, and was then taken by the defendant and Brewer to the filling station where it was cashed. According to this witness, the defendant did not relate to him who cashed the check but stated that he did not write on the check. A witness at the trial testified that the defendant entered the office of the filling station and endorsed the check with the name of Richard Larrabee. After leaving the filling station, the defendant and the witness Brewer took the tires to an undisclosed person, who paid them $20.00 for them, and the money was thereupon divided. There is in the record sufficient evidence on all the elements of the offense charged. Weeks v. United States, 313 F.2d 688 (10th Cir.); Nowlin v. United States, 328 F.2d 262 (10th Cir.); Halfen v. United States, 324 F.2d 52 (10th Cir.); Cartwright v. United States, 335 F.2d 919 (10th Cir.).

The defendant, in urging that it is necessary for the court to give an instruction as to the testimony of an accomplice, assumes that the witness Coleman was such an accomplice, but the record does not so show. The FBI agent testified that the defendant told him he understood that Coleman had received some money to cash the check, however no other reference was made to this matter during the trial and the witness Brewer testified that the defendant went into the office at the station to cash the check, but still no testimony appears to connect Coleman with the transaction other than the fact that Coleman and the witness Brewer had previously worked at the particular station at the same time. There is insufficient evidence in the record from which it may be said that the trial court committed error in failing to give an instruction relative to the testimony of an accomplice.

The hearsay testimony which the defendant asserts to have been prejudicial error was admitted when the witness, Earl Strickland III, was questioned as to a conversation which took place in the filling station. The witness was permitted to answer over the defendant's objection relative to this conversation, but it soon was developed that the defendant was not in the immediate presence of the witness. The court then promptly struck the answer of the witness, admonishing the jury to disregard the answer, and pointed out to the jury the...