Karn v. United States

• Citation: 158 F.2d 568
• Decision Date: 02 December 1946
• Docket Number: No. 11250.,11250.
• Parties: KARN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

158 F.2d 568 (1946)

KARN v. UNITED STATES.

No. 11250.

Circuit Court of Appeals, Ninth Circuit.

December 2, 1946.

Warren A. Taylor, of Fairbanks, Alaska, for appellant.

Harry O. Arend, U. S. Atty., and William E. Berrett, Asst. U. S. Atty., both of Fairbanks, Alaska, for appellee.

Before DENMAN, BONE, and ORR, Circuit Judges.

BONE, Circuit Judge.

Appellant was convicted of the crime of larceny in the District Court for the Territory of Alaska, Fourth Division. The indictment, based upon Sec, 4800, Comp. Laws of Alaska, 1933, was in two counts. Count I, a breaking and entering charge, was dismissed by the prosecution at the close of its case, and the case was submitted to the jury on Count II, a larceny charge. Appellant was convicted and sentenced on this count and from that judgment and sentence this appeal was prosecuted in forma pauperis. At the conclusion of all of the evidence (appellant offered no evidence or testimony) appellant moved for a directed verdict.

Some objection to deficiencies of form in the appeal was made, but in view of the character of the substantive rights involved, and appellant's contention that the evidence is wholly insufficient to support the verdict, we consider his motion for directed verdict on its merits.

Appellant has assigned and urged chiefly as errors, the insufficiency of the evidence to support the verdict, the improper admission of evidence and certain instructions to the jury. We lay to one side the consideration of all questions except the alleged insufficiency of the evidence to sustain the verdict of the jury. Other points mentioned are not material to our decision.

In our examination of this record, we have recognized the rule announced in Banks v. United States, 9 Cir., 147 F.2d 628 that if there be some competent and substantial evidence to sustain the verdict, we must affirm. We have carefully examined this record and we find no evidence of this character.

Viewing the evidence most favorably to the government, we gather from the record the following facts:

The prosecution relied entirely upon circumstantial evidence for a conviction. It is sufficient to say that under such circumstances the evidence must not only be consistent with guilt, but inconsistent with every reasonable hypothesis of innocence. The evidence should be required to point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypothesis but that of guilt. 23 C.J.S. Criminal Law, § 907, pp. 151, 152; Paddock v. United States, 9 Cir., 1935, 79 F.2d 872, 876; Ferris v. United States, 9 Cir., 1930, 40 F.2d 837, 840. Our considered judgment is that the evidence in this case falls far short of meeting this exacting standard.

The larceny was committed in the Chena Bar in Fairbanks, Alaska, owned and operated by witness, D. L. Hammond. On the night of September 14, 1945, appellant was seen in the Chena Bar by two witnesses, both employees, one of whom also testified that he thought appellant was wearing a brown jacket. Both were certain that appellant left the barroom early in the evening. When the bar was closed about 1:00 A.M., Hammond and four or five of his employees left, but contrary to the usual custom all of the day's cash receipts, totalling $1217, were left overnight in three cash registers. These men went out to a restaurant to have something to eat, and finally separated about 2:00 A.M. There is no showing as to what any of them did thereafter save each one's statements that he went to bed. Hammond admitted that all of these employees knew of the overnight presence of this money.

On the night of the larceny, one Shirley Redetzke, the check room girl who lived in a room above the Chena Bar was awake and looking out of her window about 3:00 A.M. She testified that she saw a man nearby and thought he had come out of the Chena Bar. He entered a midnight-blue "pick-up" truck and drove away. She stated that she did not recognize the man as John Karn and did not see his face. He was of average build and wearing a "tannish" jacket, a light hat, a white shirt and tie. She had seen the truck belonging to one Ferguson (a witness for the prosecution) but could not identify that truck with the one so driven away during the night.

One Ziegler, an employee who came to clean the Chena Bar room the morning right after the theft, discovered that the door to the establishment had been forced open and he saw money on the floor. He called Hammond and the police were notified. The sum of $188 in paper money and silver was strewn about the floor. The rest of the money from the three cash registers, amounting, according to Hammond, to $1079, was missing.¹

On the following morning, officers went to the place where appellant was sleeping and placed him under arrest. He had, plainly displayed in his pocket, the sum of $377 all of which was paper money except $2 in silver. Included in this currency was a soiled ten dollar bill. The prosecution undertook to establish, by the testimony of one Hill, a bartender at the Chena Bar, that this particular bill was part of the missing money. When questioned, Hill frankly stated that "whether it is that bill, I couldn't say. It is a bill similar to it. I couldn't swear it was that bill. I wouldn't swear to it." He stated that he had observed a soiled ten dollar bill like this one in the cash register on September 14, 1945.

When arrested on the morning of September 16, 1945, appellant was in bed. The only clothes he was shown to possess were his underwear, a dark colored shirt and trousers, and a gray hat. He did not have in his possession a tan colored jacket, a white shirt, or a tie.

Ferguson, the owner of a black pick-up truck, was a witness for the prosecution. He testified that on the night the money was stolen, he picked up appellant and drove him to a "nite-spot" where appellant borrowed a sum of money from one Gilbertson, the operator of the place. From the money so obtained, appellant repaid a ten dollar loan he had previously secured from Ferguson. The amount appellant borrowed from Gilbertson was not disclosed by any testimony and Gilbertson was not called as a witness. There is nothing in the testimony to indicate that the money found in appellant's pocket at the time of his arrest was not or could not have been the money he obtained in the loan from Gilbertson.

The prosecution insists to us that the burden was on Karn to produce Gilbertson to affirmatively prove that Karn had "borrowed a great sum" from him, which included the money found on Karn when arrested. It also urges that such a showing by Karn "was a matter of defense"; that the prosecution produced Ferguson to establish by his testimony that Karn had secured the loan while with him and that Karn was, at the time, "in straitened circumstances". Whatever it may have tended to prove, this testimony fell short of establishing that the amount so borrowed was not equal to or in excess of the amount of money found on appellant a few hours later.

The burden at all times was on the prosecution to prove beyond a reasonable doubt that Karn was guilty. Karn did not carry the burden of proving his innocence by producing Gilbertson, who, so far as the record shows, was equally available to the prosecution. If the prosecution had desired to clearly establish the amount of the loan from Gilbertson to appellant, it had the same opportunity as appellant to make Gilbertson a witness. Having failed to do this, it is not in a position where it may logically place upon appellant responsibility for failing to do what it also failed to do, and to that extent shift the burden of proof in this particular matter.

It appears to be the theory of the prosecution that after Ferguson and appellant visited the Gilbertson place, and later parted, appellant stole Ferguson's truck to go to the Chena Bar for the purpose of breaking in and stealing property therefrom; that he used a crowbar to effect an entry and stole the money from the cash registers. A crowbar found in the Ferguson truck was established as the one used to break into the Chena Bar. Concerning this crowbar, Mrs. C. A. Dunkin testified that she had sold a similar crowbar but refused to say that she had sold it to appellant. She recalled selling him some paint and a kalsomine brush.

As indicated, the Hammond employees left the bar that night with full knowledge of the fact that the money was left in the cash registers. Nothing in the testimony indicates that appellant was aware of this fact. Hammond testified that of the missing $1079, one-half was in silver coin. This being the case, the jury had before it the fact that when taken into custody appellant had on his person a sum of paper money amounting to something over one-half of the total amount of paper money claimed to be missing. It is true that the money found on him could have been part of the stolen currency. But so far as the record shows, it is equally true that it could have been part of the money he had borrowed from Gilbertson. Whatever doubt or uncertainty resides in this situation was not eliminated by the testimony of witnesses for the prosecution.

The only attempt made by the prosecution to directly link the money found in appellant's possession at the time of his arrest with the money stolen from the Chena Bar was by the testimony of witness Hill. His attempted identification of the soiled ten dollar bill found in the possession of appellant as one that was in the cash register of the Chena Bar on the night of the theft was so vague and unsatisfactory as to create a reasonable doubt that the said bill was a part of this Chena Bar money. The bill was soiled, but so much may be said of a lot of paper money.

It is true that actual possession of stolen property may be shown, but it is equally true that the prosecution must also prove, beyond a reasonable doubt, that the property found in possession of the accused is, in truth and in...