Fowler v. United States, 16098.

• Decision Date: 29 March 1957
• Docket Number: No. 16098.,16098.
• Citation: 242 F.2d 860
• Parties: Clyde W. FOWLER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 860 (1957)

Clyde W. FOWLER, Appellant, v. UNITED STATES of America, Appellee.

No. 16098.

United States Court of Appeals Fifth Circuit.

March 29, 1957.

Jack J. Gautier, Macon, Ga., for appellant.

Floyd M. Buford, Asst. U. S. Atty., Frank O. Evans, U. S. Atty., Macon, Ga., for appellee.

Before RIVES, TUTTLE and JONES, Circuit Judges.

JONES, Circuit Judge.

The appellant, Clyde W. Fowler, and his half-brother, Albert Lee Fowler, were indicted for conspiracy to cause to be transported in interstate commerce, and for the substantive offense of transporting and causing to be transported in interstate commerce, falsely made, forged, altered and counterfeited securities, in violation of 18 U.S.C.A. § 2314. Albert Lee Fowler entered a plea of guilty. Clyde entered a plea of not guilty and was put on trial. Clyde was in the used car business in Macon, Georgia. Albert had been associated with him. Albert owed Clyde about $2,000.00. Clyde said he wanted the money. Albert told Clyde the only means he had of paying him would be to buy some automobiles with bad checks. Clyde replied that he didn't care how Albert got the money but not to put his Clyde's name on any bad checks. On a Monday morning in August, 1954, Clyde loaned Albert $150.00 over the protest of Clyde's wife. Clyde authorized his employee or former employee, Arthur Rowland, to go with Albert to Chicago. Clyde directed Rowland to get a tow-bar and put it in one of Clyde's cars. Clyde loaned Albert three tow-bars on this occasion. Albert, Arthur Rowland, and Robert Edwards took the bus that day for Chicago. In Chicago Albert bought a 1952 Pontiac and a 1953 Plymouth from Tony Piet Motor Sales, Incorporated, for $1,900.00. As payment Albert tendered and the seller took an envelope draft drawn by the seller to its order on M. J. Fowler, who is Clyde's wife. The designation of the drawee was in this manner:

"To: M. J. Fowler "C/o Citizens & Southern National Bank "Macon, Georgia "Per Signed C. W. Fowler "C. W. Fowler"

All of the above was typewritten except the purported signature of C. W. Fowler and it was written by Albert Lee Fowler. Albert started these cars for Georgia by Rowland and then acquired two 1951 Fords from Hanks Auto Sales for an agreed price of $1,300.00, and a 1953 Plymouth from Ferrell Hicks Chevrolet Company for $1,175.00. For these he gave checks on The First National Bank & Trust Company in Macon, to which he affixed the signature, "M. J. Fowler, By Lee Fowler". These last acquisitions were taken by Robert Edwards and Albert Lee Fowler to Georgia.

On his way back from Chicago, Rowland found himself in Atlanta without gasoline and without money. He telephoned the appellant, Clyde W. Fowler, and asked for money to be sent for gasoline. Clyde declined but said he would get in touch with Albert. Albert called Rowland and told him to pawn a spare tire for gasoline money. This Rowland did, and drove on in to Macon where he arrived about three o'clock in the morning. Clyde Fowler later sent for and had the tire redeemed. Rowland drove to Clyde's home. Clyde undertook to tell Rowland where Albert could be found, but Albert was not then located and Clyde arranged for Rowland to get gasoline to be paid for by Albert. Rowland pulled out for Valdosta, Georgia, driving the one car and towing the other. Edwards brought the two Fords from Chicago to Macon and from there to Valdosta. Albert took the Plymouth acquired from Hicks to Macon and on to Valdosta. At Valdosta the cars were sold at an auction conducted by Tom Hewitt Auto Auction Co. for approximately $4,100.00. Clyde attended the auction. Albert rode with Clyde in the car of the latter to Kathleen, Georgia, where Albert's mother-in-law lived. After a two-day visit there and elsewhere with relatives, Albert returned to Macon, went to Clyde's home where, so Albert testified, he gave Clyde one of the checks he had received from the auction, it being for $995.00 and payable to Fowler Motor Co. At the same time Albert, so he testified, paid Clyde $505.00 in cash. Although Clyde denied most of the evidence which told against him, much of Albert's testimony was corroborated. Clyde denied receiving the $505.00 and the check for $995.00 but there was evidence that he had the check, which was drawn on a Valdosta bank, handled for collection by a Macon bank which remitted the proceeds, less a collection charge, by its check or draft payable to Fowler Motor Company, and mailed to it at Clyde's address in Macon. Clyde denied receiving it. By other evidence it was shown that Clyde had made an unsuccessful effort to get the remittance check cashed by having it presented by another.

The appellant was found guilty on both counts of the indictment and was sentenced to imprisonment for two years. He appeals, specifying as errors that (1) the court should have granted his motions for judgment of acquittal, (2) evidence of acts and statements of Albert Lee Fowler made out of appellant's presence was improperly admitted, and (3) the jury should have been given the requested charge that if the jury found that appellant simply received part of the proceeds of automobiles bought with forged and falsely made checks without knowing about it at the time, he would be not guilty.

The first specification of error is predicated upon the insufficiency of the evidence to make a case for the jury. The law has been clearly stated in the decisions of this court as to the character of evidence required to sustain a conspiracy conviction. Thus it has been held:

"Any substantial evidence of knowledge and participation

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