Bord v. United States

• Citation: 133 F.2d 313,76 US App. DC 205
• Decision Date: 06 August 1942
• Docket Number: No. 8078,8079.,8078
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Parties: BORD et al. v. UNITED STATES.

76 US App. DC 205, 133 F.2d 313 (1942)

BORD et al. v. UNITED STATES.

Nos. 8078, 8079.

United States Court of Appeals for the District of Columbia.

Argued May 15, 1942.

Decided August 6, 1942.

Mr. Irvin Goldstein, of Washington, D. C., for appellant.

Messrs. William Hitz and Charles B. Murray, Assistant United States Attorneys, both of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, of Washington, D. C., was on the brief, for appellee.

Before STEPHENS, VINSON, and EDGERTON, Associate Justices.

EDGERTON, Associate Justice.

These appeals are from convictions of housebreaking and larceny. On the night of December 29-30, 1940, the Savoy Theater and the adjoining Savoy Flower Shop were entered. More than fifty dollars in money, and other property, were stolen from the theater. Twenty dollars in money was stolen from the flower shop. One indictment in two counts charged appellant with entering and stealing from the theater; another, also in two counts, charged him with entering and stealing from the flower shop.¹ By consent, the two indictments were tried together. Appellant was convicted on all four counts.

The first indictment charged appellant with entering "the building of the Stanley Company of America, a body corporate, said building being known as the Savoy Theater." Appellant says there was no proof either that the named Company was incorporated or that it occupied the theater. Yet an assistant manager of the theater, and also a representative of Warner Brothers, testified to both points; the Warner representative identified an imprint of the corporate seal; and it was shown that the Stanley Company of America, a Delaware corporation, paid taxes on the theater building. The corporate character of the owner or occupant of property stolen or entered may be proved by "reputation", i. e., by "evidence tending to show that the corporation was de facto organized and acting as such."² We do not suggest that failure to prove the identity and corporate character of the occupant would have called for reversal. "The purpose of the law in requiring the name of the person who occupied and used the building entered to be stated is to negative the defendant's right to break and enter, and to protect him from a second prosecution for the same offense."³ Whoever occupied the Savoy theater, it is obvious that appellant had no right to break and enter it or to remove property from it, and it was sufficiently identified so that he cannot again be prosecuted for these offenses.

There was ample evidence that he was one of the men who entered the theater and committed larceny there. This included his voluntary admissions, express or implied. He said to witnesses, among other things, that he worked for two hours under a torch on the night in question; that he could tell a lot if he wanted to; that he had a hard time getting into the place; and that he got a bag of silver out of a candy or pin-ball machine there. These admissions were corroborated by circumstantial evidence. Shortly after the crime appellant had money-bags, and a watch, which were taken from the safe in the theater. He also had a considerable amount of cash, much of it in change.

Both the theater and the flower shop were entered by climbing over a low building behind the shop and breaking side doors of the buildings. Nothing but money, and that without earmark, was taken from the shop. The court told the jury that if they found appellant guilty of entering and stealing from the theater they might (but need not) draw the inference that it was he who entered and stole from the flower shop. Appellant complains of this instruction, but it was clearly right. Since similar crimes were committed on the same night, in adjoining buildings entered from the same secluded spot, it may well be thought clear beyond a reasonable doubt that the same person or group was involved. It is as reasonable to infer that the men who stole from the theater also stole from the shop as it would be to infer, if a watch and a purse had been stolen in one night from two drawers of one secluded desk, that the man who took the watch took the purse.

The crimes were obviously the work of several men with elaborate apparatus. The prosecutor called one Garrett, who identified an acetylene tank, an oxygen tank, a torch, and bolt cutters, as such. But Garrett then relied on his privilege and refused to connect himself or appellant with the crimes. The court thereupon instructed the jury to disregard his testimony, and also to disregard the tools which he identified. Appellant charges that the prosecutor knew that Garrett would not testify, and urges that calling Garrett therefore deprived appellant of a fair trial. The charge is unfounded. The record supports the government's theory that, while Garrett had made conflicting statements as to whether or not he would testify, the prosecutor reasonably believed that he would.

After the jury had been out several hours the court recalled them and gave the "Allen charge."⁴ The court said among other things that "a juror should ask himself whether his view is reasonable or unreasonable; he should not be bull-headed, he should not be stubborn"; if he finds himself in a small minority he should ask himself "Would I be shocking my conscience or reason if I yielded?" Fifty minutes after this charge was given, the jury brought in its verdict. Appellant urges that the words "bullheaded" and "stubborn" tended to coerce the jury. But immediately after using those words the court said: "If, on the other hand, he...