Brown v. United States

• Decision Date: 26 April 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

277 F.2d 201 (1960)

Henry Floyd BROWN, Appellant, v. UNITED STATES of America, Appellee.

No. 16210.

United States Court of Appeals Eighth Circuit.

April 26, 1960.

Edwin S. Baldwin, St. Louis, Mo., for appellant.

Frederick H. Mayer, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

SANBORN, Circuit Judge.

Henry Floyd Brown on August 19, 1958, was charged by indictment with having, on or about June 20, 1958, transported a stolen motor vehicle in interstate commerce from Iowa to Missouri, knowing it to have been stolen, in violation of the Dyer Act, 18 U.S.C. § 2312. He entered a plea of not guilty, was tried to a jury on November 10, 1958, convicted on November 13, 1958, and sentenced on November 21, 1958, to five years imprisonment. On November 24, 1958, he filed notice of appeal and a motion for leave to appeal in forma pauperis. On January 7, 1959, the trial court (Judge Randolph H. Weber) denied appellant's motion for leave to appeal as a poor person, certifying that his appeal is frivolous and not taken in good faith.

Brown has moved this Court for leave to proceed on appeal from his conviction in forma pauperis, notwithstanding the certificate of Judge Weber that the appeal is not taken in good faith. See 28 U.S.C. § 1915(a). On September 25, 1959, this Court entered an order appointing counsel to see that procedural requirements specified by the Supreme Court in such cases were met; to procure an agreed statement of the case, if possible; and to file a report pointing out what, if any, errors the trial court committed in certifying that the appeal is not taken in good faith. This Court first appointed, to assist Brown with his motion, Mr. Jack R. Mandel, of the Missouri Bar, who was his trial counsel. Mr. Mandel, at his request, was relieved of his appointment. Mr. Edwin S. Baldwin — of the St. Louis, Missouri, Bar — was finally appointed, and consented to serve and has fully and admirably complied with our order of September 25, 1959.

We have been furnished with the original papers of the District Court, including a detailed memorandum of Judge Weber stating fully his reasons for denying Brown leave to appeal in forma pauperis and the basis for his certificate that the appeal is frivolous and not taken in good faith. We have also a 273-page transcript of the evidence taken at the trial, containing virtually all the important evidence and including the arguments of counsel to the jury and the complete charge of the court. The transcript is supplemented by an agreed statement certified by the court, containing the testimony relative to Arkansas and Missouri stolen license plates found by federal agents in the car Brown had driven from Iowa to Missouri and Arkansas. Mr. Baldwin has filed his report and brief in support of the appellant's motion, and the United States Attorney has filed an answering brief. The motion has been argued and submitted.

The Government's evidence showed that on May 28, 1958, at Cedar Rapids, Iowa, Brown rented a Ford automobile from the Swab Drive Urself Agency, an affiliate of "Hertz"; that he represented that he wanted to use the car to go to Washington, Iowa, and would return it within 36 hours; that he made a deposit of $25.00, the minimum amount required in order to obtain the car; that he signed a rental contract agreeing, among other things, not to remove the car from the State without the written consent of the owner; that he drove the car that same day to St. Louis, Missouri; that he subsequently made trips to Arkansas and to Kansas City, Missouri; that at the time of his arrest by federal agents, on June 20, 1958, in a third floor room in a rooming house in St. Louis, he had the keys to the car; that he told the agents where the car was; that when they searched the car they found various sets of Arkansas and Missouri license plates; that the plates had been stolen; that the Iowa license plates formerly on the car had been removed; that one stolen Missouri license plate was on it; that the Iowa registration certificate which was attached to the steering wheel at the time the car was turned over to Brown was gone; that during the time Brown had the car, which was approximately 20 days, it had been driven more than 6,500 miles.

At the trial, Brown testified in his own behalf to the effect that he never intended to steal the car, had always regarded it as a rented car, had intended eventually to return it to the rental agency, and would have returned it, had the agents of the Federal Bureau of Investigation not upset his plans by arresting him. He testified that the stolen license plates in the car had been given to him; that he knew they were stolen; that he had a Missouri license plate on the car at the time it was picked up in St. Louis because he had, by leaving Iowa, become a conditional release violator and was afraid to use the Iowa license plates lest they attract attention to him.

The issues raised on behalf of Brown, which Mr. Baldwin believes are not plainly frivolous, are: (1) the sufficiency of the evidence to sustain Brown's conviction; (2) the admissibility of certain of the testimony of two of the defendant's witnesses, Mrs. Lottie Meyers and O'Neal H. Swedholm, to which objection was sustained; (3) the refusal of the trial court to instruct the jury that the rebuttal testimony of Edmund V. Kadell was for a limited...