Doss v. United States
Decision Date | 08 February 1966 |
Docket Number | No. 17946.,17946. |
Citation | 355 F.2d 663 |
Parties | Jonnie C. DOSS, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Stephen M. Boyd, St. Louis, Mo., made argument for appellant.
Harold F. Fullwood, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee. Richard D. FitzGibbon, Jr., U. S. Atty., and Donald L. Schmidt, Asst. U. S. Atty., St. Louis, Mo., filed brief.
Before MATTHES, RIDGE and GIBSON, Circuit Judges.
This is an appeal from appellant's conviction under an indictment charging a violation of 18 U.S.C.A., § 659 ( ). The goods here (black raincoats) were determined by the jury to be of a value in excess of $100.00.
Appellant was arrested on a public street in St. Louis, Missouri. When first observed by the arresting officer, defendant was carrying a black bag of clothing which was contained in transparent plastic bags. When defendant looked toward the police car in which the arresting officer was seated, he immediately ran away. The arresting officer then gave chase and after running thirty or forty feet he observed a bag of clothing which the defendant had been carrying lying in the gutter. The chase continued for approximately fifty feet more before the officer caught up with defendant and was able to arrest him. At that time, the defendant had no black garments in his possession but these were found within fifty feet from the point of arrest.
At defendant's trial on the above charge, the Government offered in evidence seven documents to attest to the interstate character of the raincoats in question, under the provisions of the Federal Business Records Act, 28 U.S.C. § 1732, which states as follows:
The seven documents thus introduced in evidence are:
At the trial below, defendant objected to the admission of the above Government exhibits, asserting that an improper foundation was laid for their admission in evidence under the criteria set forth in the Federal Business Records Act, ante, and that this error was prejudicial in that there was no other evidence adduced indicating the interstate shipment of the raincoats in question. Consequently, it is defendant's instant contention, in this appeal, that a requisite element of the crime charged (possession of goods stolen from interstate commerce, knowing them to be stolen) is not supported by competent evidence. Therefore, it is contended, the failure of the trial court to direct a judgment of acquittal was error.
It is a well-settled rule of law under the provisions of the Federal Business Records Act that even if business records, such as those herein involved, are hearsay as to defendant, they are admissible as records made in the regular course of business. Olender v. United States, 237 F.2d 859, 866 (9 Cir., 1956), cert. den. 352 U.S. 982, 77 S.Ct. 382, 1 L.Ed.2d 365; United States v. Eisenberg, 238 F.2d 143 (2 Cir., 1956). To be thus entitled to admission as "business records," the proper foundation must, of course, first be laid. In this connection, a review of the testimony of witnesses, Paul Martin Schalliol, Assistant Sales Manager of the U. S. Rubber Company, and Mary Elizabeth Skouby, an employee of Killion Motor Express, Inc., is necessary.
Mr. Schalliol testified in order to lay a foundation for the admission of the Government's Exhibits 1 through 6, ante, as purported business records of the U. S. Rubber Company. The record is clear that he is familiar with the preparation of Company records in his capacity as Assistant Sales Manager of that Company. He testified that Exhibits 1 and 2, ante, were made by the U. S. Rubber Company, at or near the time they purport to depict upon the records themselves; that these records are maintained for every order that is received at the U. S. Rubber Company; and that he had control of these particular records for the purpose of determining their receipt and subsequent correct billing to customers. It is therefore manifestly clear that there was a proper foundation for the admission of Government's Exhibits 1 and 2. Furthermore, these two exhibits clearly demonstrate that two cartons of raincoats were shipped by U. S. Rubber Company in Indiana, bound for California.
Mary Elizabeth Skouby testified concerning the Killion Motor Express delivery receipt, Government's Exhibit No. 7, ante. This exhibit was made up by Killion on the date the shipment was received. This testimony outlines the necessity of this document to the business of Killion Motor Express Company. Defendant points out that there is no direct statement by this witness that the exhibit is kept in the normal course of business. However, nowhere in her testimony does she state that this document is unusual, and we feel the following testimony is clearly indicative of its common usage:
To continue reading
Request your trial-
Langel v. United States, 71-1081 to 71-1083.
...United States v. Kye, 411 F.2d 120 (8th Cir. 1969); DeVore v. United States, 368 F.2d 396, 399 (9th Cir. 1966); Doss v. United States, 355 F. 2d 663, 667 (8th Cir. 1966); Sadler v. United States, 303 F.2d 664, 665 (10 Cir. 1962); See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 ......
-
United States v. Stroble
...into evidence Government's Exhibits 1, 2, 3, 4, and 5 based upon the testimony of Philip Russo and Henry Kochanowski. See Doss v. United States, 355 F.2d 663. The Government contends that the absence of the signatures of the delivery truck driver and the consignee on Exhibit 5 proves beyond......
-
Peterson v. United States
...at 140, 75 S.Ct. at 137. This and other courts have sustained convictions which rested upon circumstantial evidence. Doss v. United States, 355 F.2d 663, 667 (8th Cir. 1966); Sadler v. United States, 303 F.2d 664, 665 (10th Cir. 1962). See also United States v. Kye, 411 F.2d 120 (8th Cir. M......
-
United States v. Robinson
...United States v. Kye, 411 F.2d 120 (8th Cir. 1969); DeVore v. United States, 368 F.2d 396, 399 (9th Cir. 1966); Doss v. United States, 355 F.2d 663, 667 (8th Cir. 1966); Sadler v. United States, 303 F. 2d 664, 665 (10th Cir. 1962); See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 9......