Dixon v. United States, 16690.

• Decision Date: 25 October 1961
• Docket Number: No. 16690.,16690.
• Citation: 295 F.2d 396
• Parties: Leonard Thomas DIXON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

295 F.2d 396 (1961)

Leonard Thomas DIXON, Appellant, v. UNITED STATES of America, Appellee.

No. 16690.

United States Court of Appeals Eighth Circuit.

October 25, 1961.

Thomas Hullverson, St. Louis, Mo., for appellant.

Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., F. Russell Millin, U. S. Atty., Kansas City, Mo., and Kenneth H. Taylor, Asst. U. S. Atty., Kansas City, Mo., on the brief, for appellee.

Before SANBORN, MATTHES and RIDGE, Circuit Judges.

MATTHES, Circuit Judge.

In this Dyer Act case¹ the defendant was found guilty by a jury and upon judgment being pronounced, was sentenced to imprisonment for a two-year term. The district court permitted notice of appeal to be filed without payment of fee but denied the defendant leave to perfect his appeal in forma pauperis on the ground that the appeal was "entirely without merit." Upon consideration of the agreed statement of the case and memoranda of trial counsel for defendant and the United States Attorney filed in connection with defendant's challenge of the certificate of the trial court that defendant's appeal was legally frivolous, we granted defendant leave to appeal as a poor person and appointed Mr. Thomas Hullverson, a member of the St. Louis Bar, to represent the defendant on appeal. We express to Mr. Hullverson our thanks for his services which proved of assistance in the disposition of the issue presented for determination.

The sole question here is whether portions of the court's charge to the jury were prejudicially erroneous. A brief résumé of the facts will assist in comprehending the basis for the claimed error.

On June 20, 1960, defendant went to the Jay Hawk Motor Company, a used car dealer in Salina, Kansas, for the express purpose of purchasing an automobile. Paul A. Loveland, a partner in the business, dealt with the defendant. With Loveland's permission, the defendant drove two other used automobiles in addition to the Buick automobile which became the subject of the Dyer Act violation. Concerning the Buick, Loveland testified that defendant stated he wanted to show it to his wife, who was at their home in Salina, and permission was granted defendant to take the car for that purpose. The question of financing or paying for the automobile was also discussed. Loveland stated that defendant left with the Buick around 3:00 o'clock p. m. and when he had not returned by 8:00 o'clock that evening, he reported the matter to police officers. The automobile was recovered later at Platte City, Missouri, which is about 200 miles from Salina. From defendant's testimony the jury could have found that his right to drive the Buick automobile was not limited to the Salina, Kansas area. Additionally, he testified that after obtaining possession of the automobile, he decided to drive to Abilene, Kansas, about 20 miles from Salina, for the purpose of seeing his friend Joe Kapaske, apparently with the hope of securing needed money to complete the purchase of the automobile. He stopped at a bar in Abilene, met a "couple of guys" and began drinking with them. He remembers nothing thereafter until he was struggling with two men who turned out to be Missouri police officers, and who found defendant lying unconscious or asleep near the highway about 25-30 yards from the Buick, which was out of gasoline. At the trial defendant claimed he had been robbed of about $200 and denied driving the automobile across the state line. In this factual setting the court instructed the jury on the presumption of innocence, reasonable doubt, credibility of witnesses, and other matters usually submitted in criminal prosecutions, and then gave this charge which constitutes the bone of contention on this appeal:

"Now, trying out an automobile ordinarily doesn\'t mean taking it and keeping it for hours and going out of the community and running it for miles and miles. It doesn\'t ordinarily mean that sort of thing. So, let\'s assume that this defendant had no right to take the automobile. But that isn\'t an offense. The particular offense is transporting it across the state line after he had taken it. We can say as a matter of law that he had no right to take it across the state line and bring it in the State of Missouri under the agreement that he had with the vendor of this car.

* * * * * *

"Now, members of the jury, I don\'t know what happened. I don\'t know whether he is guilty or whether he isn\'t. I would say to you as a matter of the law, that if this man went out and got drunk and got in the automobile and drove it over to Missouri, then under the law he is guilty, whether he was suffering from a state of alcoholic amnesia or not, because drunkenness is not an excuse for the commission of a crime, unless it has existed to the extent that it affects the mentality of an individual." (Emphasis supplied.)

Defendant recognizes that in federal jurisprudence a district judge has the right within limitations to comment upon the evidence. However, he strongly urges that that portion of the charge under attack does not constitute legitimate and proper comment on evidentiary matters but rather is an expression of an opinion upon an ultimate issue determinative of guilt or innocence.

The United States Attorney does not...