Darby v. United States

• Decision Date: 28 October 1960
• Docket Number: No. 6467.,6467.
• Citation: 283 F.2d 896
• Parties: Lawrence Clayton DARBY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

283 F.2d 896 (1960)

Lawrence Clayton DARBY, Appellant, v. UNITED STATES of America, Appellee.

No. 6467.

United States Court of Appeals Tenth Circuit.

October 28, 1960.

Joseph L. Smith, Albuquerque, N. M., for appellant.

James A. Borland, U. S. Atty., Albuquerque, N. M., for appellee.

Before HUXMAN, LEWIS and BREITENSTEIN, Circuit Judges.

HUXMAN, Circuit Judge.

Appellant, Lawrence Clayton Darby, has appealed from a judgment of conviction in the United States District Court for the District of New Mexico under an indictment charging him with knowingly transporting in interstate an automobile knowing the same to have been stolen.¹

The facts are substantially these. On October 9, 1959, appellant purchased a 1957 Chrysler automobile from Whipple & Ruff Plymouth Center in Ventura, California. He gave in payment a check in the sum of $2,284.80 drawn by himself on the Wells Fargo Bank of San Francisco, California. He had opened his account on September 21, 1959, by depositing a check drawn by himself on the Bar Harbor Bank and Trust Company, Bar Harbor, Maine, in the amount of $25,000. The account in the San Francisco Bank was closed on September 25, 1959, when the check for $25,000, drawn on the Bar Harbor Bank, was returned and marked, "no account" and the check for $2,284.80, drawn on this account, was returned to the automobile agency for the reason that the account was closed. Thus, appellant never paid anything for the car which had been delivered to him. He was arrested in Deming, New Mexico, in possession of the car, and was charged, tried and convicted, as above stated.

Alleged errors in the course of the trial are urged for reversal. It is urged that a so-called "rap sheet" held in the hands of the prosecuting attorney, in view of the jury during cross-examination of appellant, constitutes reversible error. The "rap sheet" was an information sheet of the Federal Bureau of Investigation consisting of five typewritten pages. It contained information about alleged criminal activities of appellant. In cross-examining appellant as to eight convictions, the prosecuting attorney made use of this "rap sheet." It is stated that in cross-examining appellant with respect to eight prior convictions, the prosecuting attorney, with his back immediately to the front of the jury, and while holding the sheet in his hand, turned through the five pages, making no use of much of the material contained therein. The contention is that such action was fully visible to the jury who were left to speculate as to the remaining material in the report.

A motion was made at the conclusion of all the evidence for a mistrial on the grounds that prejudicial error was committed in permitting questions from the "rap sheet" which was easily available to the view of the jury, when defendant denied any connection with these offenses, and no attempt was made by the District Attorney to establish the commission of these additional offenses.

No objection was made to the cross-examination of appellant at the time he was being examined by the District Attorney with respect to these matters. It was only after the cross-examination had been completed and after both appellant and appellee had rested that the issue was raised. In fact, it was only after the parties had returned from lunch when the motion for mistrial was made. But we do not rest our decision on the ground that the motion was not timely made. A considerable discretion is vested in the trial court...