Jenkins v. United States, 8284.

• Citation: 361 F.2d 615
• Decision Date: 26 May 1966
• Docket Number: No. 8284.,8284.
• Parties: Rubie Charles JENKINS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

361 F.2d 615 (1966)

Rubie Charles JENKINS, Appellant, v. UNITED STATES of America, Appellee.

No. 8284.

United States Court of Appeals Tenth Circuit.

May 26, 1966.

COPYRIGHT MATERIAL OMITTED

Roger W. Redman, Aurora, Colo., for appellant.

James R. Ward, Asst. U. S. Atty. (Newell A. George, U. S. Atty., and Guy L. Goodwin, Asst. U. S. Atty., on the brief), for appellee.

Before PICKETT, HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

Appellant, Rubie Charles Jenkins, in a jury trial, was tried and convicted upon an indictment charging three offenses: (1) The unlawful entry into a Federally insured bank with the intent to commit a larceny, (2) theft of property valued in excess of $100.00 from that bank, and (3) receiving and possessing property knowing it to have been stolen from such bank.¹ This is a direct appeal from those convictions and the sentences imposed pursuant thereto.

Appellant's contentions may be fairly summarized as involving: (1) The improper submission of all three counts of the indictment to the jury, (2) illegal search and seizure, (3) insufficiency of the evidence, and (4) prejudicial statements by the government counsel in the presence of the jury.

On or about March 23, 1961, the Fowler State Bank of Fowler, Kansas, was burglarized. The bank vault door was opened and the safety deposit boxes inside were rifled. About $17,000 was taken, most of it from these safety deposit boxes. One of the boxes was rented to a man by the name of Donald Downing, who had for some years been a coin collector and kept his collection in this box. Downing kept a detailed record of all of his coins showing the type, date, and mint mark of each coin, which record shows that most of the coins were rare. They were placed in plastic coin cases before being put into the safety deposit box.

On September 25, 1961, several F.B.I. agents, after receiving notice that a warrant for the arrest of Jenkins had been issued after the return of an indictment in the District of South Dakota, went to an apartment in Tulsa, Oklahoma, to attempt to make the arrest. The agents found Jenkins and his wife in the apartment and, after making the arrest, proceeded to search the apartment. By the search, the agents found an oxygen acetylene tank and hose, a Remington shotgun with a sawed-off stock, an eight-pound sledge hammer, a sixteen-pound sledge hammer, .45 caliber ammunition, a grinder, an electric drill, a wrecking bar, a Louisiana auto license tag, two chisels, one punch, three drill bits, cutting tips for welding, three loaded pistols, a rifle, two pairs of leather gloves and a large number of coins together with some plastic coin cases. The coins were found in a pillowcase and two shoe boxes.

Appellant has one meritorious contention here which we will consider first. As noted above, the indictment charged three separate offenses under the Federal Bank Robbery Act, Title 18, U.S.C. § 2113(a), (b) and (c). By the instructions given to the jury, they were told that they could find Jenkins guilty of any one or more of the three crimes charged. This constituted such error as requires a reversal of the judgment and conviction and the granting of a new trial. Since the trial of this case this court has had this precise question before it. In Glass v. United States, 10 Cir., 351 F.2d 678, on the authority of Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773, we held that "a thief cannot be guilty of bank robbery and also the crime of receiving property which was stolen" and the failure of a trial judge to instruct the jury that the accused could be convicted of only one of such separately charged offenses compels a reversal of a conviction on both counts.

Our remand of the case for a new trial requires consideration of other points raised by appellant. He first complains about the application in this case of the doctrine of "possession of recently stolen property" and the inferences flowing therefrom. More specifically, he questions the sufficiency of the evidence to show either that the property was "recently stolen" or that he had possession of such property. As pointed out above, there was a lapse of time from March 23, 1961, the date of the burglary, to September 25, 1961, the date of the arrest and search. Appellant urges that this lapse of time precludes the application of the doctrine and the admission into evidence of the various items seized in the search. From the record, it is evident that the government's case on each of the counts charged must stand or fall on this evidence. We believe the trial judge correctly received these seized items into evidence.

There can be no doubt that the commission of a crime may be established by circumstantial evidence.² One such example of this is in the application of the well recognized rule that unexplained possession of recently stolen property is circumstantial evidence of participation in the theft.³ We should point out at this juncture that the court's instructions on this point were insufficient in that they failed to advise the jury that such possession may give rise to an inference that the possessor stole the property. The instruction given stated that such possession "is a circumstance from which the jury may reasonably draw the inference and find that the person knew the property had been stolen." This is correct but the jury should have been advised also of the stronger inference that may be drawn from evidence of possession of recently stolen property. In utilizing these inferences that arise from such possession, the key consideration must be centered around proof that the possession was exclusive and that the property was recently stolen.⁴ While the cases applying this rule of evidence are legion, they must each be viewed in light of their own particular factual setting for in the final analysis, the decision is one for the jury to decide under appropriate instructions.⁵ In any case, before the inference may be made from possession of stolen property alone, there must be proof of an unlawful taking coupled with convincing identification of the property stolen.

In this case, there is no question about an unlawful entry into the bank and a larceny of money, including a large amount of coins, some of which consisted of a coin collection of which the owner kept a detailed record showing the type, denomination, year and any other distinguishing marks of each coin. The proof of identification of the coins from the collection is close to positive. In the collection were Indian head pennies dated 1848, 1868, 1881, 1883, 1884, 1887, 1...