Jenkins v. United States, 9691.

• Citation: 392 F.2d 303
• Decision Date: 03 April 1968
• Docket Number: No. 9691.,9691.
• Parties: Rubie Charles JENKINS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

392 F.2d 303 (1968)

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

No. 9691.

United States Court of Appeals Tenth Circuit.

April 3, 1968.

Everett C. Fettis, Wichita, Kan. (Paul Arabia, Wichita, Kan., with him on the brief), for appellant.

Guy L. Goodwin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., with him on the brief), for appellee.

Before BREITENSTEIN, SETH and HICKEY, Circuit Judges.

SETH, Circuit Judge.

The appellant was found guilty by a jury of receiving and possessing stolen property in violation of 18 U.S.C. § 2113 (c). He has taken this appeal from his conviction, asserting that the trial court was in error in its rulings on his objections to the venue and on other unrelated points.

Appellant was indicted on three counts. The first count charged that he feloniously entered The Fowler State Bank in Fowler, Kansas, with intent to commit a larceny therein. The second count charged him with feloniously taking money and property from the same bank. The third count was for receiving and possessing stolen property knowing it to have been stolen from The Fowler State Bank at Fowler, Kansas.¹ The jury acquitted the appellant on counts 1 and 2, but, as indicated above, found him guilty on count 3 of receiving and possessing property stolen from the bank in Fowler, Kansas.

The Government by its proof showed that the bank at Fowler, Kansas, was burglarized and that its vault was entered and property was stolen from the safety deposit boxes. It showed that the burglar removed the contents of a box which belonged to a coin collector who was able to describe the coins which had been in the box.

Some months later, FBI agents arrested the appellant and his wife in an apartment in Tulsa, Oklahoma. At the arrest the agents searched the apartment and found therein some firearms, and oxygen-acetylene torch with cutting tips, some sledge hammers, an electric grinder and drill, and a wrecking bar. During the course of this search the agents also found a number of coins which were later identified as being a part of the coin collection stolen from the safety deposit box during the course of the burglary of the Fowler bank.

At the trial the appellant testified that the apartment in Tulsa where he was arrested, and in which the property was found, did not belong to him nor was he a tenant. He also contended that the property found during the search was not his and was not in his possession.

As indicated above, the jury acquitted the appellant of the charge of unlawfully entering the bank at Fowler, Kansas, and acquitted him of stealing property from this bank. The jury however found the appellant guilty of receiving and possessing stolen property knowing it to have been stolen from the Fowler bank. This count 3 of the indictment recited that this offense took place within the district of Kansas.

On this appeal, among the other points raised by the appellant, he asserts that the trial court was in error in overruling motions made during the course of the trial and for a new trial which raised the issue of improper venue. The appellant asserts that the entire proof presented by the Government as to count 3 consisted of testimony showing the property to have been found in an apartment in Tulsa, Oklahoma, and testimony that this property had been stolen from the Fowler, Kansas, bank. Appellant asserts that there is no proof which places him at any time within the state of Kansas, and further, the jury found that he did not commit the burglary.

On the issue of waiver of venue, the Government contends that it was waived by reason of the appellant's delay in raising the issue and by going to trial. It further asserts that in any event the venue was properly laid in the state of Kansas.

The trial court, on the appellant's motion for a new trial as to the venue issue, in stating its conclusion, refers to circumstantial evidence as being sufficient. This evidence was that appellant was in possession in Oklahoma of property recently stolen in Kansas, and from this it is concluded or presumed that such possession established that the property had been acquired in Kansas. This would be a presumption similar to that which is applicable on the issue of theft upon proof of such possession.

In view of the action by the jury on the first two counts, the assumption which must be made for the purpose of considering the venue issue as to count 3 would be that the appellant received the property which was found in Tulsa on September 25, 1961, from some third person. The proof satisfactorily shows that this property had been stolen in Kansas on March 23, 1961, thus the time factor is important also. There is nothing in the record however to place appellant in the state of Kansas at any pertinent time, and nothing to connect him with the Fowler bank other than the evidence that property found in the apartment in Tulsa had been stolen there. All the counts of the indictment assert that the several offenses took place on March 23, 1961, in the district of Kansas.

The importance of proper venue is apparent and need not be here detailed. It is referred to in article III, section 2 of the Constitution of the United States and in the sixth amendment to the Constitution. Statutory provisions relating to venue are contained in 28 U.S.C.A. § 114, and the matter is treated in Rule 18 of the Rules of Criminal Procedure. An abundance of case law may be found on the importance of proper venue and on the need for proof of venue. The Supreme Court, in United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236, stated the general policy as to venue and the importance of proper determination of venue. The Court again...