Brown v. United States

• Decision Date: 21 February 1956
• Docket Number: No. 15548.,15548.
• Citation: 228 F.2d 286
• Parties: Raymond Carl BROWN and Leonard Frank Hogue, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

228 F.2d 286 (1955)

Raymond Carl BROWN and Leonard Frank Hogue, Appellants, v. UNITED STATES of America, Appellee.

No. 15548.

United States Court of Appeals Fifth Circuit.

December 23, 1955.

Rehearing Denied February 21, 1956.

No appearance for appellant.

Lonny F. Zwiener, Asst. U. S. Atty., Austin, Tex., Russell B. Wine, U. S. Atty., San Antonio, Tex., for appellee.

Before HOLMES, RIVES, and CAMERON, Circuit Judges.

RIVES, Circuit Judge.

Appellants, Brown and Hogue, along with two co-defendants, Snyder and Rule, were charged in a two-count indictment with: (1) feloniously entering the First National Bank of Streetman, Texas, the deposits of which were at the time insured by the Federal Deposit Insurance Corporation, with intent to commit larceny in said bank in violation of Title 18, United States Code, § 2113(a); and (2) feloniously taking and carrying away from said Bank $1,600.00, in violation of § 2113(b) of the same Title. The jury found each defendant guilty under each count. The court sentenced Snyder and Rule each to imprisonment for five years, and they did not appeal. Brown and Hogue were each sentenced to imprisonment for fifteen years and they appeal.

The indictment follows substantially the language of the statute; it is not duplicitous in charging four defendants in one indictment. Rule 8(b), Federal Rules of Criminal Procedure, 18 U.S.C.A. It was not necessary to charge that the specific property alleged to have been stolen was insured by the Federal Deposit Insurance Corporation; it sufficed to allege that the deposits of the bank were so insured. 18 U.S.C.A. § 2113(f). The motion to dismiss the indictment and each count thereof was properly overruled.

Likewise, most of the other specifications of error deserve only brief mention. The motion for severance was made not by appellants but by their codefendants, Snyder and Rule. Further, it was addressed to the sound discretion of the district court, and no abuse of discretion appears. See Schaffer v. United States, 5 Cir., 221 F.2d 17, 19. The denial of a continuance, also was within the sound discretion of the district court. Isaacs v. United States, 159 U.S. 487, 16 S.Ct. 51, 40 L.Ed. 229; Ladner v. United States, 5 Cir., 168 F.2d 771, as was the action of the court in excusing Government witness Mac Williams from the rule. Bostwick v. United States, 5 Cir., 218 F.2d 790, 792. We find only one instance where the court refused the request of appellants' counsel to have the record checked to settle differences in recollection of the testimony and then the court stated: "Gentlemen of the jury, you heard the evidence. I will let you pass on it," and later charged the jury: "You are the exclusive judges of the facts proven, of the credibility of the witnesses, and the weight to be given to their testimony". A careful reading and study of the entire record convinces us that appellants' general complaint that, "The court showed prejudice in all its rulings and on several occasions during the hearing and also the trial" is wholly unfounded, and that, to the contrary, the able and experienced district judge conducted the trial patiently, fairly, impartially, and with full recognition of his duty both to the defendants and to the Government. We apprehend that such a charge would not be made if the appellants on this appeal were represented by counsel. The only specifications of error meriting serious consideration is that the district court erred in failing to suppress the testimony of the witnesses as to the confessions made by the appellants.

The corpus delicti was proved by undisputed evidence. On the night of August 3, 1954, the bank was burglarized and about $1,600.00 in money stolen therefrom, in addition to certain checks, war bonds and jewelry. A number of other burglaries of various nearby places, including the Post Office and The Red and White Grocery Store in Hutto, Texas, were committed during the same general period of time. From the grocery store a large number of cans of coffee were stolen.

Within weeks, the State officers arrested two women who were attempting to sell some of this stolen coffee. From those women they obtained information leading to the arrest of the appellants and their co-defendants; though, it may be noted, the women were not introduced as witnesses. Brown and Snyder heard through their lawyer that the Sheriff in Dallas had a warrant for their arrest, and voluntarily turned themselves in on the 18th of August, 1954. That evening they were taken to Georgetown, Texas on the local charges. There they were interviewed by Sheriff Allen and Texas Ranger White. One of the women under arrest was Brown's ex-wife, and the other was the wife of a friend of his, then in the Oklahoma Penitentiary. Brown wanted very much to have those women released and claims that he made a deal to that end, to confess to the burglary of the grocery store and exonerate the women. The officers deny a deal of any kind, though they admit that, following Brown's confession, the women were released. Brown was the first one of the four co-defendants to give a confession and that occurred on the morning of the nineteenth, the confession including four local burglaries. His confession to the burglary of the Streetman Bank did not come until the 24th. At the time of his first confession, he made a drawing of a location in the residential section of Dallas where he said some of the stolen groceries were hid. This information was communicated to the Dallas officers but they were unable to locate the goods from the description of the place, and on the 20th, Sheriff Allen and Ranger White took Brown back to Dallas, and there, according to the Ranger, we,

"picked up a stash of coffee up there that was pointed out to us by Brown, that had come out of the Red and White Grocery Store, what he said, at Hutto. We

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