Hendrix v. United States

• Citation: 327 F.2d 971
• Decision Date: 31 January 1964
• Docket Number: No. 19824.,19824.
• Parties: Norman John HENDRIX and Carolyn Sue Torbert, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

327 F.2d 971 (1964)

Norman John HENDRIX and Carolyn Sue Torbert, Appellants, v. UNITED STATES of America, Appellee.

No. 19824.

United States Court of Appeals Fifth Circuit.

January 31, 1964.

Thomas M. Haas, Mobile, Ala., for appellants.

Vernol R. Jansen, Jr., U. S. Atty., William A. Kimbrough, Jr., Asst. U. S. Atty., Mobile, Ala., for appellee.

Before TUTTLE, Chief Judge, and POPE^* and JONES, Circuit Judges.

TUTTLE, Chief Judge.

This is an appeal from a conviction and sentence of the appellants on four counts of an indictment charging them with transporting, or causing to be transported, or aiding and abetting in transporting or causing to be transported, certain falsely made and forged checks in violation of 18 U.S.C.A. § 2314. The Government abandoned all counts except 7, 8, 9 and 10. The appellants were tried and convicted on all four of these counts. Hendrix received a senence of forty-two months and appellant, Torbert, was given a sentence of thirty months. The sentences were general and are within the statutory limits for a single count. Sentences may therefore be sustained if the convictions on any count are upheld. Greene v. United States, 358 U.S. 326, 79 S.Ct. 340, 3 L.Ed. 2d 340; Fowler v. United States, 5th Cir., 1956, 234 F.2d 695; Morales v. United States, 5th Cir., 1956, 228 F.2d 762. The only substantial question on this appeal is the sufficiency of the evidence to withstand the appellants' motions for acquittal. We conclude that there was sufficient evidence for the jury to find a verdict of guilty as to Hendrix. There was not sufficient evidence to warrant the submission of the charge against Torbert to the jury.

Two of the co-defendants, Huey L. Shelton and David Sykes, had entered pleas of guilty as to certain of the counts and they testified on behalf of the Government. Shelton's testimony was fairly complete and almost sufficient of itself to warrant submission of the case against Hendrix to the jury. Sykes had a severe lapse of memory and his testimony contributed little of value to the Government's case other than the essential proof that the checks were carried in Hendrix' automobile from Mobile, Alabama, to Pascagoula where all four of them were cashed.

From Shelton's testimony the jury could find that Shelton, a former employee of the Jim Walter Corporation in Mobile, broke into the office and stole eighty check forms imprinted with the company name and bearing consecutive numbers, that the four checks on which the convictions were had were included within these four numbers; that he took these checks to a trailer belonging to Hendrix and there, in the presence of Torbert and Sykes and another woman, delivered the checks to Hendrix. A few hours later he borrowed a typewriter and took it to the trailer. He then made an agreement with one James W. Barnett to procure from him a driver's license, Social Security identification, club cards and credit cards issued to Barnett, in return for a promise to give Barnett $150. He took these credit cards to Hendrix and told him how to make the checks out, giving him the name Wayne L. Tullos as the name of an authorized signer for the checks. Shelton testified that he knew a man by the name of Tullos was an authorized signer for the Jim Walter Corporation but he did not remember his first name. The name Wayne L. Tullos he said was fictitious.¹

Approximately two days later, according to Shelton's testimony, he talked with Hendrix to see if any of the checks had been cashed. Hendrix told him he didn't want to cash the checks, that Shelton should come back and get them. But when he went back to the trailer, Hendrix gave him approximately thirty-five checks and said that all the rest of the checks he had kept or destroyed or was going to destroy them. He also returned an identification of one K. C. Bush, which Shelton had previously furnished but he did not return the Barnett identification. Shelton also got the typewriter back. Although no proof was tendered that the checks had been prepared by any particular typewriter, it is to be noted that all four of the checks on which the convictions were had were filled out on a typewriter and all were made payable to James W. Barnett. There are several typographical errors that are consistent throughout, such as the spelling of the month of "January" and the word "ninty" on the face of three of the checks which were made out for the sum of $192.06. All four of the checks are signed by a signature purporting to be that of Wayne L. Tullos.

From Sykes's testimony the jury were given the following facts: Early in January of 1962, Hendrix, Torbert, Sykes and one Jean Stain drove from Mobile, Alabama to Pascagoula, Mississippi, in Hendrix' automobile taking a number of Jim Walter Corporation checks with them. The four checks covered by the four indictments before us all bearing the name of James W. Barnett as payee, and purporting to be signed on behalf of the Jim Walter Corporation by Wayne L. Tullos, were cashed in Pascagoula. These checks were drawn on the Central Branch of the American National Bank and Trust Company of Mobile and were presented to this Branch Bank for payment. Payment had been stopped on all of them and they were returned to the stores in Pascagoula that had cashed the checks. Sykes, who failed to remember everything except his own acts on that day and failed to remember a great deal of what he himself did, testified that he took a check out of the pile of Jim Walter checks lying behind the back seat of Hendrix' automobile and cashed it somewhere in Pascagoula. There was no positive proof as to which, if any, of the four checks upon which the convictions were had was the one cashed by Sykes. He had pleaded guilty to Count 10 of the indictment which dealt with check No. 5130 for $242.50. Of course, his plea of guilty is not evidence against either Hendrix or Torbert of the commission by them of any of the ingredients of the offense admitted by Sykes, 2 Wharton's Criminal Evidence, 12th Ed. 215 § 439. The only manner in which the Government could hope to connect Hendrix with the act of Sykes with one of the checks of the indictment was by the proof of the witness E. A. Corlew, who testified that he had cashed check No. 5127 for $192.06 at the Town Market in Pascagoula. When he was first asked if he saw in the court-room the person who presented the check to him, he said, "This fellow right here, I could be mistaken", pointing to Hendrix. He then said, "I could be wrong, but, in my estimation and insight this is the man." On cross-examination he was asked if he was sure of his identification. The witness answered, "I would not be too sure. I want to be fair to him. He looks very much like him. * * *" Then, after a recess, defense counsel put Corlew on the stand the second time and established that during the recess he had pointed David Sykes out to Corlew and then asked him, "Q. Now I want to ask you if that could have been the man who cashed that check at your place in Pascagoula?" Corlew answered, "Yes Sir I was wrong it was that man, in my estimation, I would not be too certain but I really think it is I just made an error." Then the question was asked, "You are talking about Sykes in the cell?" And Corlew answered, "Yes Sir."

Efforts made by the Government to prove the identity of the person who cashed two of the other checks covered by the indictment fell short of the requirements for the making of an identification. Two separate women cashiers of stores in Pascagoula stated that two of the checks had been presented to them by a woman between twenty-eight and thirty years of age, weighing some 130 pounds, in tight, green pedal pushers and with her hair in balloon curlers with a scarf over it. Neither of the witnesses could positively identify Carolyn Torbert as the person thus described. Another witness from a third store testified that a woman of the same description had bought some articles in the department store in which she worked but she did not testify as to the cashing of a check. While she said she believed she could recognize her customer and said that Torbert looked a lot like her, there is no evidence to connect Torbert with any check on this particular purchase.

We can find no evidence in the record that could properly permit the submission of the issue of guilt or innocence of the appellant, Torbert, to the jury in the absence of any testimony connecting her with the cashing of one or more of the forged checks. Her presence when Shelton delivered the blank checks, the typewriter and the identification cards to Hendrix and her presence in the car on the trip from Mobile to Pascagoula, might well show knowledge by her that a criminal undertaking was afoot. But these facts do not show that she was a participant, either as a principal or as an aider or abettor, Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919; United States v. Garguilo, 2nd Cir., 310 F.2d 249. While questions of identity are ordinarily for the jury and testimony as to identity need not be positive and certain, Davis v. United States, 10th Cir., 78 F.2d 501, there must be something more than the testimony of a resemblance and the fact that the person sought to be identified was accompanying the persons who are more clearly tied in with the offense charged. For a general discussion of this question see 23 C.J.S. Criminal Law § 920, p. 643 et seq.

With respect to the appellant Hendrix, however, the case stands quite differently. There can be no question but that the evidence showed that four crimes had been committed dealing with the four checks which were the subject of the four counts in the indictment, that is to say, someone had knowingly and willfully caused these falsely made checks to be transported in interstate commerce. There can hardly be any question, we think, but that the undisputed acts of Hendrix obtaining the checks with the purpose, as disclosed by his...