Devine v. United States

• Decision Date: 23 December 1968
• Docket Number: No. 10006.,10006.
• Citation: 403 F.2d 93
• Parties: Samuel Dean DEVINE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

403 F.2d 93 (1968)

Samuel Dean DEVINE, Appellant, v. UNITED STATES of America, Appellee.

No. 10006.

United States Court of Appeals Tenth Circuit.

October 23, 1968.

Rehearing Denied December 23, 1968.

Joseph R. Schlozman, Kansas City, Mo., for appellant.

Thomas E. Joyce, Asst. U. S. Atty., Kansas City, Kan. (Benjamin E. Franklin, U. S. Atty., Kansas City, Kan., on the brief), for appellee.

Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

Appellant was convicted by a jury on both counts of a two count indictment charging him with having, on or about April 15, 1966, transported altered, forged or falsely made securities in interstate commerce in violation of 18 U.S.C. §§ 2 and 2314. The forged securities consisted of two checks drawn on the account of Maynard C. Raybourn in a Kansas City, Missouri bank. The checks having been cashed in the State of Kansas, their transportation via banking channels to the drawee bank in Missouri is sufficient to satisfy the interstate aspect of the indictment. Appellant and an accomplice, Edward G. Parsons, were tried jointly while another accomplice and coindictee, Edward B. Henney, Jr., pleaded guilty before becoming a witness for the prosecution. A third accomplice, Dorothy L. Evans, had previously entered a plea of guilty in a separate criminal action based upon the same conduct as herein involved. She too became an important witness for the Government. Thus faced with the extremely damaging testimony of these two accomplices, appellant purportedly sought to establish as an affirmative defense that the drawer, Maynard Raybourn, had himself signed the checks albeit with a deliberate signature distortion. It was felt that if this affirmative defense could be shown, the checks would then not have been forged and the indictment would fail.

In his attempt to establish the defense, appellant called the drawer, Maynard Raybourn, to the witness stand and also introduced a report of an F.B.I. handwriting expert. The report stated, among other things, that: "Because of the possibility of deliberate distortion causing the deviations, a definite conclusion as to establishing a forgery was not reached in this respect." The only other evidence offered by appellant consisted of the testimony of an acquaintance of Edward Henney, Jr., who testified as to the latter's reputation in an attempt to impeach his credibility as a witness for the Government.

Appellant contends that the court erred in failing to properly instruct the jury as to the theories propounded by the defense. It is urged that in refusing to instruct the jury that "one cannot forge his own signature" the court neglected to take cognizance of a valid theory; a theory for which evidence had been introduced either directly or elicited on cross-examination of Government witnesses. The issue thus becomes whether the court committed prejudicial error in the omission of the aforementioned instruction.

We have examined the record and find that the instruction was not given either in form or in substance. As to what constituted a forged security, the court did adopt the instruction submitted by appellant except that the last sentence stating that one cannot forge his own signature was omitted. Nonetheless, it is elementary that a defendant in a criminal case is entitled to instructions delineating a particular theory of defense only if there is a sufficient foundation in the evidence. There must be "evidence before the jury to reasonably support such theory."¹

While it appears from an analysis of the record that the court could have given the requested instruction, it cannot be said that there was enough evidence to positively require that it be given. The theory that the checks were signed by the true maker was not fairly raised by the evidence. Aside from the report of the F.B.I. indicating that it was not possible to definitely rule out a deliberate distortion by the drawer — if indeed such a contingency could ever be definitely negated — the only other pertinent evidence consisted of the testimony of the drawer, Maynard Raybourn, to the effect that conceivably there could have been checks left unattended that had been signed but otherwise left blank. It is self-evident that this type of evidence, premised upon the universal truth that nearly anything is possible, can hardly be said to constitute an evidentiary foundation upon which to base the request for jury instructions.

Appellant further contends that the court committed reversible error in the failure to give another requested jury instruction. This instruction related to the efficacy of the testimony introduced to impeach the credibility of Edward Henney, Jr., as a witness for the Government. However, the sufficiency of jury instructions is not determined by the giving or failing to give any one particular instruction. In order to make such a determination it is necessary that all of the instructions be viewed as a whole.² Once this has been accomplished, it becomes apparent that the general instructions relating to the weight to be given the evidence and the credibility of witnesses were adequate in apprising the jury as to the significance of the impeachment testimony. Even if we were to conclude that the...