Heflin v. United States, No. 15161.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: RIVES, TUTTLE and CAMERON, Circuit
• Citation: 223 F.2d 371
• Parties: Lurton Lewis HEFLIN, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 15161.
• Decision Date: 15 June 1955

223 F.2d 371 (1955)

Lurton Lewis HEFLIN, Jr., Appellant,
v.
UNITED STATES of America, Appellee.

No. 15161.

United States Court of Appeals Fifth Circuit.

June 15, 1955.

223 F.2d 372

John Samuel Tucker, Jr., Birmingham, Ala., for appellant.

Frank M. Johnson, Jr., U. S. Atty., Birmingham, Ala., M. Lewis Gwaltney, Raymond P. Mims, Asst. U. S. Attys., Birmingham, Ala., for appellee.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

Appellant was convicted on five counts relating to the robbery of a bank in Birmingham, and five sentences were imposed so as to run consecutively for a total of twenty years and two days. Count 1 charged a violation of 18 U.S. C.A. § 2113(a), in material part alleging that Heflin feloniously and by force and violence took from the "person and presence" of one Lawrence Brice, $53,172.73 belonging to and in the possession of a National Bank member of the Federal Reserve System. Count 2 charged violation of 18 U.S.C.A. § 2113(b), taking and carrying away such money with intent to steal. Count 3 charged violation of 18 U.S.C.A. § 2113(d), taking such money from the "person and presence" of Brice and in so doing assaulting named persons with a revolver or pistol. Count 4 charged violation of 18 U.S.C.A. § 2113(c), receiving, concealing, storing, and disposing of said money, knowing it to have been taken from a member bank of the Federal Reserve System with intent to steal. Count 5 charged conspiracy to violate the above sections, and the overt act of taking the money.

Appellant specifies 42 errors, many of which are repetitious and some of which are so vague that we might well disregard them. For the sake of convenience we have condensed the 42 specifications into 10 points:

223 F.2d 373

(1) The court erred in not dismissing the indictment, particularly as to counts 1 and 3, which allege that the money was taken from the "person and presence" of Brice instead of from his "person or presence."

(2) The court should have granted the motion for acquittal, particularly as to counts 1 and 3, because of the variance in the proof, which showed that the money was not taken from both the "person and presence" of Brice.

(3) The court erred in refusing to allow appellant to take the deposition of one Samuel Jay Hornbeck, and to allow a continuance for obtaining his testimony; and further in refusing a continuance on account of the absence of appellant's alibi witnesses Ray Boree and W. R. Boone.

(4) The court erred in admitting testimony of Mrs. Patsy Ruth Hornbeck, and then excluding it and ordering the jury not to consider it instead of granting a mistrial.

(5) The sentences imposed under counts 1, 2, 3 and 4 are invalid.

(6) The court erred in admitting or excluding testimony of appellant and witnesses Hicks, Moore, Prater, Goldman and Mrs. Loretta Heflin.

(7) The court erred in refusing to issue a subpoena to Albert Sidney Denton.

(8) The court erred in its charge and in refusing certain requested instructions, particularly in charging in substance that it is generally known that bank robbers dress in a manner to confuse their victims.

(9) The court erred in overruling challenges for cause of two jurors, necessitating the use of two of appellant's peremptory challenges.

(10) The court erred in refusing the motion for a new trial.

(1) The indictment seems to us quite exemplary. Each count follows closely the language of the corresponding statute, and alleges each element of the offense charged. As for appellant's objection that the words "person" and "presence" should have been jointed by the disjunctive "or" instead of the conjunctive "and," quite the contrary is true.

"As a general rule, where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such means or ways in the alternative; the proper way is to connect the various allegations in the accusing pleading with the conjunctive term `and\' and not with the word `or.\'" 42 C.J.S., Indictments and Informations, § 101, quoted in Price v. United States, 5 Cir., 150 F.2d 283, certiorari denied 326 U.S. 789, 66 S.Ct. 473, 90 L.Ed. 479. See also Johnson v. United States, 5 Cir., 207 F.2d 314, 319, 323.

Consequently we see no merit in this first contention of appellant.

(2) Nor was it error to refuse to direct an acquittal. In answer to the particular contention that there was a variance as to counts 1 and 3 in that there was no proof that the money was taken from both the person and presence of Brice, the Government says that the defect was only formal and not prejudicial, and, besides, the taking was at least constructively from Brice's person. We think, however, that appellant's argument fails for the more vital reason that this was not a defect in the proof at all. The Government need never prove both a taking from the person and a taking from the presence. This is a corollary to the rule of pleading that such matters are to be alleged in the conjunctive, although existence of either alternative would constitute the offense as the statute defines it.

"When several acts specified in a statute are committed by the same person, they may be coupled in one count as together constituting one offense although a disjunctive word is used in the statute, and proof of any one of the acts joined in the conjunctive is sufficient to support a verdict of guilty. So where as here, the indictment charged that

223 F.2d 374

the defendant did unlawfully remove, deposit, and conceal, it was enough to prove any one. Crain v. United States, 162 U.S. 625, 634-636, 16 S.Ct. 952, 40 L.Ed. 1097." Price v. United States, 5 Cir., 150 F.2d 283, 285.

As for the sufficiency of the evidence in general to support the jury's verdict, we are satisfied that there was no error. The Government had a notably strong case. Cletus Goldman, who was indicted in the same indictment for the same offenses, testified for the Government and gave a clear account of the whole affair. He said there were four participants in the robbery, himself, his brother Myron Goldman, Samuel Jay Hornbeck, and the appellant. These four met on various days prior to January 23, 1953, in Birmingham, where they were staying in various motels and a rented apartment. The witness said that they had come to Birmingham intending to commit a robbery, and had stolen several cars to use in their operations, but he did not know of the plan to rob the West End Branch Bank until January 22. On that date they drove to the vicinity of the bank, discussed the plan of the robbery and their several parts in it, went over their getaway route several times, and parked two stolen cars along the route. The next morning, January 23, the robbery was executed according to plan, the...