Gargotta v. United States

• Decision Date: 10 May 1935
• Docket Number: No. 10091.,10091.
• Citation: 77 F.2d 977
• Parties: GARGOTTA v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

77 F.2d 977 (1935)

GARGOTTA v. UNITED STATES.

No. 10091.

Circuit Court of Appeals, Eighth Circuit.

May 10, 1935.

William L. Vandeventer, of Springfield, Mo. (Calvin, Vandeventer & Kimbrell, of Kansas City, Mo., on the brief), for appellant.

Randall Wilson, Asst. U. S. Atty., and Sam C. Blair, Asst. U. S. Atty., both of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before WOODROUGH and FARIS, Circuit Judges, and DONOHOE, District Judge.

DONOHOE, District Judge.

Appellant, hereinafter referred to as the defendant, was convicted on all three counts of an indictment, which charged him with receiving, concealing, and retaining in his possession with intent to convert to his own use, two certain pistols, property of the United States, with knowledge of the fact that such property had heretofore been stolen. His punishment was fixed at three years imprisonment on each count, to run concurrently, and a fine on the third count of $5,000. By appropriate proceedings, an appeal has been prosecuted to this court, which presents for our consideration certain errors alleged to have occurred during the trial, and the sufficiency of the evidence to support the verdict.

One of the errors alleged is based on the fact that Mrs. Florence McCoy, a contract stenographer employed on behalf of the government in the office of the district attorney, was present during the sessions of the grand jury that returned the indictment against the defendant, and took down the testimony. She was sworn not to divulge any of the testimony so recorded, and in the course of the proceedings she was called upon to read to the grand jury testimony pertaining to another case. She was not present during the deliberation. On the strength of these facts, a plea in abatement was entered on the ground that an unauthorized person was permitted to be present in the grand jury room during the time it was hearing testimony on which the indictment herein was based. The plea in abatement was overruled, and that order is assigned as error.

Section 556, title 18 USCA (as amended May 18, 1933), disposes of this alleged error. The testimony which she read to the jury during its deliberation had to do with a Mr. Claiborne's case, rather than the case of the defendant, and consequently no prejudicial error could be predicated on that circumstance.

Another alleged error is based on a statement made by the district attorney in his closing argument to the jury, which it is contended referred to the fact that the defendant did not take the stand in his own behalf. The language is as follows:

"Gentlemen, you have those two positive witnesses. That is not circumstantial evidence, Mr. Calvin. That is direct testimony going to the very vitals of this case. One of those witnesses testified that he took a concealed weapon from this man, the other that he had a gun in his hand, shooting at him, and threw it down. You have there the uncontradicted testimony of these two officers, not mere private citizens, but sworn officers of the law, that this man possessed both of these guns.

"Now, is there any explanation how he got possession of them? No explanation is offered to you, gentlemen of the jury. This man McLaughlin might try to insinuate some way, but you are not trying this case on insinuations of attorneys. There is no explanation of how he got the guns. If he got them honestly, if he did not receive them as stolen property, why did they not offer an explanation?"

While we think that this language approaches dangerously close to the forbidden zone, still it hardly encroaches thereon. The criticism seemed to be directed to the attorneys, who were conducting the case for the defendant. The attorneys might have called other witnesses, if any there were, to explain the possession of the guns. For the attorney in his argument to refer to the fact that there were no such other witnesses called would not be objectionable. Then, too, it will be observed that the pronoun "they" was used in the last question quoted instead of the pronoun "he." From this it would seem that the language could not be fairly construed as a comment on the defendant's failure to testify in his own behalf, and hence we do not find the statement to constitute reversible error.

The question of the sufficiency of the evidence is the serious question in the case. The first contention, that there was no competent evidence proving that the pistols in question were the property of the United States previously stolen, is readily disposed of. The testimony of Major Chafin in that connection, received without objection, was positive and direct, and sufficient in itself to take the case to the jury on that point. Hence we do not consider it necessary to dwell upon the other corroborating testimony. We think that the ownership and theft of these pistols was sufficiently and amply proven.

The remaining contention, that there is not on the record sufficient evidence to take the case to the jury touching defendant's knowledge that the pistols were stolen when he possessed them and when he concealed one of them, is to our mind the real and only question in the case. We will quote the testimony in detail in order that the evidence, or rather the lack of evidence, may speak for us:

The witness, Thomas B. Bash, sheriff, testified:

"Q. I will ask you to tell the jury about where you were about one o'clock a. m. on the morning of August 12, 1933? A. Driving south on Forest Avenue, between Armour and 34th Street.

"Q. And who was accompanying you? A. My wife, Deputy Hodges, and a little girl by the name of — a little orphan girl, I don't just remember her name at this time.

"Q. Did you reach the intersection of Forest Avenue and Armour Boulevard? A. No, I hadn't quite reached the intersection of Armour and Forest.

"Q. How near the intersection did you get? A. Approximately, somewhere between fifty and seventy-five feet.

"Q. I will ask you to state to the jury whether or not you saw the defendant, Charles Gargotta? A. I did.

"Q. At that place, at that time? A. I did.

"Q. Now, state to the jury what he was doing when you first saw him? A. He was shooting.

"Q. At whom? A. Me.

"Q. How far were you away from him? A. At that particular time I was some little distance. I wouldn't just exactly know in feet, twenty-five or thirty feet.

"Q. What was he shooting at you with? A. A revolver.

"Q. What kind of a revolver? A. .45 Colt Automatic.

"Q. I will hand you Government Exhibit No. 1, and ask you to state to the jury whether or not that is the revolver with which he was shooting at you? A. That is the revolver with which he was shooting at me.

"Q. Not a revolver, but an automatic pistol, I understand? A. Yes, sir.

"Q. Now, what happened then, Mr. Bash? A. He dropped the pistol, threw up his hands, and screamed for me not to shoot him.

"Q. What caused you to stop on that occasion? A. Because I had seen him drop this revolver and I thought he was defenseless at that time, that particular time.

"Q. I mean how did you happen to stop at that particular intersection? A. I heard some shooting and screaming.

"Q. I don't want to lead you, but you got out of the your car — A. Got out of the car, yes, sir.

"Q. Did you have any weapon in your car? I had a riot gun that I carry in my car at all times.

"Q. Then what did you do with reference to Gargotta? A. I placed this gun on him.

"Q. This riot gun, you mean? A. This riot gun, backed him up against the east side of the apartment building located on the southwest corner of Armour and Forest and then moved him around to the south side, just around to the south side, keeping my eye on this pistol at all times, at the same time, and immediately thereafter, my deputy, Hodges, started walking around from behind the car that the two men were in that I had just shot, and I told him to pick up the pistol that this man had dropped, and he did and brought me the pistol, and I placed it in my left trouser pocket."

(Here the witness identified the pistol as delivered to him by his deputy, and which contained the number "377,675," marked as Government Exhibit 1.)

Officer Hale testified that he was one of the officers who took the defendant to the station when he was arrested, immediately after the shooting referred to by the sheriff, and related the following as having taken place on the way:

"Q. Going over to the station did you take anything off of Charles Gargotta? A. Yes, sir.

"Q. What did you take? A. A .45 automatic.

"Q. A .45 automatic? A. Yes, sir.

"Q. Do you know whether it resembled Government's Exhibit 2 or not? A. Yes, sir, resembled that.

"Q. From where did you take it? A. No. 6 Station.

"Q. No, I mean from where did you take this pistol off of his person? A. Over his right rear pocket.

"Q. At the time or just prior to the time you took it off what did he say to you, if anything? A. My understanding is he said: `You better take this off of me.' That is, at the time I took the gun from him.

"Q. Was it concealed? A. Yes, sir.

"Q. What did you do with the gun? A. Turned it to No. 6 Station. * * *

"Q. Do you know how it happened that Gargotta said to you `You had better take this off of me'? A. No, sir.

"Q. Did you know he had it? A. When I felt it with my elbow. I was sitting very near him.

"Q. Do you mean over his pocket? A. Well, in the belt there.

"Q. You mean belt of his trousers? A. Yes.

"Q. Was it stuck inside of the trousers? A. Yes. * * *

"Q. Will you please state to the Court and jury, if you can, how Charles Gargotta was dressed on the evening that you saw him, as to his headgear? A. Why, he had on a dark gray cap."

The witness, Miss Houston, identified a written statement, prepared shortly after the shooting, which she read to Mr. Gargotta sentence by sentence. She stated that after reading a sentence, a Mr. Mastin propounded the question to the defendant, "Is that true?" and...