Brown v. United States
| Decision Date | 04 November 1960 |
| Docket Number | No. 16210.,16210. |
| Parties | Henry Floyd BROWN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Edwin S. Baldwin, St. Louis, Mo., for appellant.
Frederick H. Mayer, Asst. U. S. Atty., St. Louis, Mo., for government.
Before JOHNSEN, Chief Judge, and VAN OOSTERHOUT and BLACKMUN, Circuit Judges.
This defendant, Henry Floyd Brown, upon a plea of not guilty, was convicted by a jury of a violation in 1958 of that provision of the National Motor Vehicle Theft Act, commonly known as the Dyer Act, now found at 18 U.S.C. § 2312. The charge was transportation of a 1957 Ford automobile in interstate commerce from Iowa to Missouri knowing it to have been stolen. Brown promptly filed a notice of appeal and a motion for leave to proceed in forma pauperis. The District Court denied this motion and certified that the appeal was frivolous and not taken in good faith. The defendant then filed a similar motion here.
On April 26, 1960, this court held that the defense's contention that Brown was entitled to a directed verdict of acquittal was plainly frivolous but that its further contention that portions of the testimony of two witnesses, Mrs. Lottie Meyers and O'Neal H. Swedholm, was improperly excluded, as hearsay and self-serving, was not so plainly frivolous as to justify denying Brown leave to proceed on appeal in forma pauperis. Leave therefore was granted. Brown v. United States, 8 Cir., 277 F.2d 201, 204.1
As noted in that opinion, the government's evidence showed the rental of the automobile in question to Brown on May 28, 1958, by a car-rental agency at Cedar Rapids, Iowa; the representation by Brown that he wanted to use the car to go to Washington, Iowa, and would return it within 36 hours; his use of his own name and his display of his driver's license at the time of rental; his deposit of a $25 minimum and his signing a rental contract whereby he agreed not to remove the car from Iowa without the consent of the owner; his driving the car that very day to St. Louis, Missouri; his subsequent trips to Arkansas and Kansas City, Missouri; his arrest in St. Louis on June 20, 1958, with the car keys in his possession; the presence at that time of various stolen license plates in the car; the removal of the original Iowa plates from the automobile and their replacement by a stolen Missouri plate; the absence of the Iowa registration certificate from the steering column; and a 6166 mile use of the car while it was in Brown's possession.
Two points are now raised by the defense: (1) that the trial court erred in excluding those portions of the testimony of the witnesses Meyers and Swedholm as to statements made by Brown to the effect that he never stated that he owned the car, that he was returning to Cedar Rapids, and that he came back to St. Louis because of trouble with the car, and (2) that the trial court erred in refusing to instruct the jury that the rebuttal evidence of witness Edmund W. Kadell was admissible only to impeach testimony of Brown's mother and did not constitute substantive evidence. We consider these in order:
1. The excluded portion of the testimony of witnesses Meyers and Swedholm. Lottie Meyers lived in St. Louis. Because of an infirmity she testified by deposition. She had a roomer named Stevenson at her house. Stevenson had asked her if Brown, who was his friend, could stay there. She assented. Brown did stay there for a night or two beginning May 28, 1958. Objections were interposed, upon the grounds of unresponsiveness, hearsay and their self-serving character, to answers by Meyers to the effect that Brown left her house and said he was going home; that "the boys said he got on his way, they took him to the city limits", that he came back that night and "said his car broke down when he got about ten miles from the city limits, and he wanted to know if he could sleep here that night"; that "he thought he was going home"; that when he left here "he said he was on his way home with the car he had rented"; and that he "told me his car broke down in Racine, and he said he rented a car and he had to get it back". The objections were sustained and an offer of proof was made. On separate occasions, during the attempted presentation of this evidence, the court indicated that certain of it "might be subsequently offered in substantiation but I am going to sustain the objection at this time", and that the ruling adverse to the defense was made "upon the ground that it is hearsay and self-serving and that at this stage of the record the defendant is not entitled to show it." Meyers was permitted to testify, "I thought he went home" and "the next day he was supposed to go home and he came back."
Witness Swedholm, who admitted three prior felony convictions including one under the Dyer Act and who appeared under subpoena, testified that he first met Brown on May 28, 1958, when he came to the Meyers house; that he, Stevenson and Brown left after dinner and drove in Brown's car, "the car he had rented", to the Cherokee Pub; and that he saw Brown on the following Saturday night. An objection was interposed to a question whether Brown had ever stated to him or to anyone in his presence that he owned the automobile and objections were also made to unresponsive answers reciting that Brown "was supposed to go back the next day" and that "he told me that he had had difficulty with the car". These objections were sustained and, to the extent answers had been given, the jury was instructed to disregard them. Here again the stated grounds for the objections were unresponsiveness, hearsay and self-serving character.
Brown then took the stand in his own behalf. He stated that he indicated at the rental office that he was going to West Union, Iowa; that he didn't recall saying anything about St. Louis because "I didn't think it was necessary"; that he came to St. Louis to see Stevenson so he could borrow "a few hundred dollars"; that he picked up his shaving kit and one shirt; that he drove north from Cedar Rapids to West Union, Iowa, to see his sister for about fifteen minutes and from there on the same day south to St. Louis; that he went to the Meyers house; that he told Mrs. Meyers during dinner that the car he had was rented and he had to return it in a day or so; that he told the same thing to Stevenson and Swedholm; that he was not able to borrow money from Stevenson; that he then decided he "might as well go on back home"; that he started home; that, however, he had trouble with his car and it reached the point "where I could hardly drive it"; that he stopped and took a cab back to the Meyers house where he spent the night; that the next morning he and Swedholm took the car to a garage where a mechanic fixed it; that after he had paid for this repair he realized he would not have enough money to pay the car rental when he got back home; that he then decided to stay in St. Louis and "figured I would meet someone else I did know and I would be able to borrow the money to take care of my obligations"; that he telephoned his mother in Cedar Rapids and told her about the car trouble and asked her to call the rental agency and to tell them that he would be back in a day or so; that he was confused by his financial problems; that he did not get in touch with other persons but spent "a bit of time trying to locate them"; that he went to Kansas City to find a friend to borrow money; that he didn't steal any of the license plates; that they were given to him and he put them in his car; that he removed the Iowa plates and put on the Missouri plate because he then remembered that he had violated his conditional release and the car would not be so noticeable without Iowa plates; that while he was in St. Louis he did not claim to any person that he was the owner of the car or offer or attempt to sell the car or state to anyone that he intended to keep the car; and that he made two trips to Arkansas and one to Kansas City and drove around "an awful lot here in St. Louis trying to locate some fellows" so he could borrow money.
On cross-examination Brown admitted that he had prior convictions (kidnapping, the Dyer Act, assault and robbery); that before leaving Cedar Rapids he had written Stevenson and "they were expecting" him in St. Louis; that he intended to take the car out of Iowa at the time he rented it; that he did not inform the rental agency of that fact or arrange with them to take the car into Missouri or into Arkansas; that he knew the license plates were stolen; and that he did not want to be found outside Iowa. On re-direct examination he stated that when he rented the car he did not intend to take it to Arkansas; that it was his original intention to stay in St. Louis two days "at the very most"; and that he did not tell the agency that he intended to go to St. Louis because it would be a violation of his conditional release and because he thought it was unnecessary as long as they were paid.
The defense then re-offered the excluded portions of the Meyers deposition but did so on the theory that Brown's credibility had been attacked by the reference to his prior convictions and that this was corroborative and rebuttal material. No other ground for the re-offer was asserted. There was no recall of Swedholm.
The defense, stressing that "the very essence of the Government's case in proving Brown guilty * * * was his intent to convert the rented car to his own use and to deprive the owner of his rights and benefits of ownership prior to the time he drove the car from Iowa to Missouri", and citing United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 1 L. Ed.2d 430, urges that "testimony regarding statements made by him tending to prove that he had no intent to steal the car in question are admissible in his behalf".
There is authority pointing in this direction. The defense calls our attention to...
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