Chandler v. United States

• Decision Date: 09 June 1967
• Docket Number: No. 21475,21475
• Citation: 378 F.2d 906
• Parties: Edward Howard CHANDLER and Henry May, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.2d 906 (1967)

Edward Howard CHANDLER and Henry May, Appellants, v. UNITED STATES of America, Appellee.

Nos. 21475, 21475A.

United States Court of Appeals Ninth Circuit.

June 9, 1967.

Charles M. Giles, Tucson, Ariz., for appellants.

Richard C. Gormley, U. S. Atty., John L. Augustine, JoAnn D. Diamos, Morton Sitver, Asst. U. S. Attys., Tucson, Ariz., for appellee.

Before POPE, BARNES and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge:

Edward Howard Chandler and Henry May appeal from their convictions, after a joint jury trial, for escape from a penal institution in violation of 18 U.S.C. § 751 (1964).

Chandler and May were prisoners at a minimum security federal prison camp located on Route 366, eight miles southeast of Safford, Arizona. A bed check made by prison personnel at 1:15 a.m. on August 27, 1966, did not reveal that any prisoners were missing. However, during another bed check made at 2:45 a.m. that morning, a correctional officer discovered that Chandler and May were missing.

At approximately 11:50 p.m. that day, on highway U.S. 70, ten miles east of Safford, Arizona, Highway Patrolman Kenneth F. Chlarson stopped a dump truck heading east, because one of its headlights was out. He found Chandler and May in the truck and arrested them. The officer also found in the truck two blankets, two jackets and a sleeping bag. It was later discovered that the blankets, bedroll and one jacket had been taken from Hugh Hammond's quonset hut, located three and a half miles north of the prison camp. It was also later ascertained that the dump truck was owned by W. A. Morris, and had disappeared from Morris' premises on August 27, 1966.

Chandler testified that he and May drank a half gallon of "brew" on August 26, 1966, that he never thought about leaving the camp, and that he did not remember leaving the camp. There was other testimony, however, which would have warranted the jury in finding that Chandler and May were not under the influence of alcohol or otherwise physically or mentally incapacitated, when they were found by Officer Chlarson.¹

Appellants argue that the trial court erred in allowing the Government to elicit testimony regarding the possible theft of the dump truck in which they were riding at the time of their arrest.

Morris testified, over objection, that it was between 11:30 p.m. and midnight, on August 27, 1966, when he became aware that the dump truck was missing from the place where he conducted a sand, gravel and concrete business. This would be about twenty-two to twenty-four hours after Chandler and May were discovered missing from the prison camp. Defendants argue that, in view of this time lapse, this evidence tending to show that Chandler and May stole the vehicle had no probative value on the question of their intent to escape, since that intent must be determined as of the moment defendants left the prison compound. They also contend that the evidence was highly prejudicial because it indicated the likelihood that defendants had committed the independent crime of grand theft.

The Government was not required to prove that at the moment defendants left the prison camp they intended to escape. If defendants left the camp inadvertently while wandering in an intoxicated condition, they may not have had the intent to escape at the moment they left the confines of the prison camp. However, if they thereafter decided to seize the opportunity to take off for more hospitable climes, they would be guilty of escape or attempted escape, notwithstanding the tardy formulation of the idea.

Proof that Chandler and May were driving away from the camp in a stolen vehicle would tend to show that, whether or not they originally intended to escape, they had that intent, and were putting it into action, at the time they were apprehended. See Reid v. United States, 9 Cir., 334 F.2d 915, 918.² If defendants had not intended to escape and were, at 11:50 p.m. on August 27, 1966, attempting to get back inside the prison, the fact that their vehicle was headed in the opposite direction might indicate only confusion of road signs. The jury could find, however, that defendants could not have intended to reappear in or near the prison camp with a stolen truck; and so their purpose must have been to escape.

The testimony in question was therefore relevant on the issue of intent. Moreover, in our opinion, the importance of this evidence in proving a necessary element of the crime charged outweighs the possible prejudice to defendants resulting from the circumstance that it also tended to prove the commission of another offense. This being the appropriate test to be applied, we hold that the trial court did not err in receiving the evidence concerning theft of the truck. See Fernandez v. United States, 9 Cir., 329 F.2d 899, 908.³

Appellants argue that the trial court erred in admitting in evidence the Government's exhibits Nos. 8, 9, 10 and 13, because they were not authenticated in the manner prescribed in Rule 44(a), Federal Rules of Civil Procedure. This rule is made applicable in criminal matters by Rule 27, Federal Rules of Criminal Procedure. Appellants further argue that, without those exhibits, the evidence was not sufficient to sustain the convictions.

This court has previously stated that in order to sustain a conviction for escape, there must be proof of three facts: "(a) that there was a conviction, (b) that there was an escape, and (c) that such escape was from a confinement arising by virtue of the conviction." Hardwick v. United States, 9 Cir., 296 F.2d 24, 26. See, also, Strickland v. United States, 10 Cir., 339 F.2d 866, 867-868. Appellants contend that the Government established both the previous conviction and the confinement by virtue of such conviction with regard to May and the confinement by virtue of a conviction with regard to Chandler by means of the improperly authenticated documents that were received in evidence.

Exhibits Nos. 8 and 10 are copies of orders authorizing the transfer of Chandler and May from the Federal Correctional Institution at La Tuna, Texas, to the federal prison camp near Safford, Arizona. Exhibit No. 9 is a copy of Chandler's prison record card. When these three exhibits were offered in evidence, counsel for defendants objected on the ground of immateriality. With respect to exhibits Nos. 9 and 10, he objected on the further ground that they referred to other crimes.

However, no objection was made to these three exhibits on the ground that they lacked proper authentication. In referring to these exhibits, counsel...