Fitts v. United States, 6438.

• Decision Date: 27 October 1960
• Docket Number: No. 6438.,6438.
• Citation: 284 F.2d 108
• Parties: John Thomas FITTS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

284 F.2d 108 (1960)

John Thomas FITTS, Appellant, v. UNITED STATES of America, Appellee.

No. 6438.

United States Court of Appeals Tenth Circuit.

October 27, 1960.

COPYRIGHT MATERIAL OMITTED

Royce D. Sickler, Denver, Colo., for appellant.

Richard P. Matsch, Denver, Colo. (Donald G. Brotzman, Denver, Colo., on the brief), for appellee.

Before MURRAH, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

MURRAH, Chief Judge.

The appellant, John Thomas Fitts, is here in forma pauperis, by court-appointed counsel, complaining of a judgment and sentence on a jury verdict in the District Court of Colorado, for the interstate transportation of a stolen motor vehicle, in violation of Title 18 U.S.C. § 2312.

Appellant's first assignment of error is that the trial court unduly and prejudicially permitted cumulative evidence of the commission of another offense for which he was not on trial. The undersheriff of Scott County, Kansas, was permitted to testify, over the appellant's objections, that the appellant and others escaped from the Scott County jail on the night of August 3, 1959; and that the theft of the automobile in question was reported two days later. The jury was immediately instructed that the testimony of the witness concerning the alleged jail break was admitted solely for the purpose of establishing that the defendant was in this vicinity when the automobile was stolen; that he was not on trial for "jail break"; and that they should not consider that fact in determining guilt or innocence. Thereafter in the course of the trial, another witness testified, without objection, that he first met the appellant in the Scott County jail; that the appellant escaped with him and other prisoners; and that several days after the escape, he met appellant in Montana, at which time appellant was driving a black 1949 Chevrolet. A police officer in Englewood, Colorado, testified, without objection, that he arrested the appellant in Englewood because he was "wanted" for the escape in Kansas. A special agent for the Federal Bureau of Investigation testified concerning an interview with the appellant, wherein appellant related that he had escaped from the Scott County jail with other prisoners.

While not complaining of the undersheriff's reference to the jail break under the cautionary instructions, appellant argues that repeated reference to it by other witnesses tended to unduly emphasize it as an unwarranted attack on his character, which was not put in issue. It is of course true that an accused cannot be convicted upon evidence that he committed another offense. But "Relevant evidence which tends to prove a material fact in the case on trial is admissible even though it incidentally shows that the accused committed another offense at a different time and place." O'Dell v. United States, 10 Cir., 251 F.2d 704, 707. Evidence of the jail break was undoubtedly competent to show that appellant was in the vicinity of the theft of the automobile. And, reference to the escape in the testimony of subsequent witnesses was purely incidental to material testimony in the case. No objections were made thereto, and we may assume that the jury well understood the purpose of the evidence, and that it was received and considered under the admonitory instructions of the court.

The appellant also complains of a fatal variance between the government's proof and the allegation of the indictment. The indictment charged the appellant with having transported the stolen automobile in interstate commerce from near Scott City, Kansas, to Englewood, Colorado. There was evidence that the black 1949 Chevrolet was stolen from a quonset barn about eight miles from Scott City, Kansas, on or before August 5, 1959; that the appellant was seen in possession of an automobile of this description in Montana about three days later; and that he was apprehended in possession of the stolen automobile in Englewood, Colorado on August 17, 1959. The court correctly instructed the jury that "Possession in one state of property recently stolen in another state, if not satisfactorily explained, is a circumstance from which the jury might reasonably infer and find in the light of the surrounding circumstances that the person in possession not only knew it to be stolen property, but also transported it or caused it to be transported in interstate commerce." The appellant does not complain of the correctness of this instruction. And see Dunlop v. United States, 165 U.S. 486, 502, 17 S.Ct. 375, 41 L.Ed. 799; Seefeldt v. United States, 10 Cir., 183 F.2d 713. He contends, however, that this permissible inference of guilt is at fatal variance with the testimony of the special agent of the Federal Bureau of Investigation, who recited the appellant's statement to him to the effect that the appellant purchased the automobile from one of his fellow escapees in Wyoming for the sum of $75, and thereafter transported it from Wyoming to Colorado. From this the appellant argues that the government's proof shows at most that appellant transported a stolen automobile from Montana or Wyoming to Colorado, and that such evidence rebuts any permissible inference that he first possessed the stolen automobile in Kansas and transported it from there to either Montana or Wyoming.

In the first place, the agent's mere recital of the appellant's statement to him was not binding upon the government, insofar as the allegations of the indictment were concerned. At most, it was evidence which the jury could believe or disbelieve in its discretion. Moreover, the fellow-escapee denied having sold the automobile to appellant, or of having signed a slip of paper, purporting to be a bill of sale for it. He stated that when he last saw the appellant in Montana, he was driving away in the 1949 black Chevrolet. A handwriting expert testified that the signature on the purported bill of sale was not that of the purported seller. It is thus plain that the government's proof did not vary the allegations in the indictment or tend to overcome the permissible inference of unlawful possession of the automobile.

The more troublesome problem is appellant's contention to the effect that the court should have directed an acquittal on the record evidence of his mental illness. The underlying facts of record are to the effect that while the accused was confined in the county jail of Arapahoe County, Colorado, he was examined on September 16 and 25, 1959, by Dr. J. P. Hilton, a psychiatrist and member of a county medical commission. Pursuant to this examination, the County Court of Arapahoe County entered an order on October 9, 1959, adjudicating the accused "mentally ill" and committing him to the Colorado State Hospital "to be confined, treated and cared for as the law directs until discharged according to law." The order recited that commitment was necessitated by "chronic alcoholism with seven or eight brief periods of hallucination on withdrawal of alcohol." The record does not indicate when the accused was discharged from the hospital, but it does show that on December 23, 1959, after the return of this indictment on December 17, the court appointed Dr. Robert R. Cohen "as a psychiatrist to examine the said defendant to determine his mental condition." There is no record of Dr. Cohen's findings or diagnosis.

On January 19, 1960, apparently after the case had been set for trial on the following February 10, the appellant, through his court-appointed counsel, moved for a subpoena to the Clerk of the Arapahoe County Court for production of the records of the proceedings wherein he was "declared mentally incompetent, ordered committed to the Colorado State Hospital ...