Landwehr v. United States

• Decision Date: 21 June 1962
• Docket Number: No. 16869.,16869.
• Parties: William B. LANDWEHR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

304 F.2d 217 (1962)

William B. LANDWEHR, Appellant, v. UNITED STATES of America, Appellee.

No. 16869.

United States Court of Appeals Eighth Circuit.

June 21, 1962.

John L. Sullivan, St. Louis, Mo., for appellant.

Frederick H. Mayer, Asst. U. S. Atty., St. Louis, Mo., for appellee; D. Jeff Lance, U. S. Atty., St. Louis, Mo., and Lee J. Placio, Jr., Asst. U. S. Atty., with him on the brief.

Before VOGEL, VAN OOSTERHOUT and MATTHES, Circuit Judges.

VOGEL, Circuit Judge.

William B. Landwehr, appellant herein, was convicted by a jury under an indictment charging a violation of 18 U.S. C.A. § 2312, involving the transportation of a stolen motor vehicle in interstate commerce. He attempted to appeal from his conviction and sentence, asking leave to proceed in forma pauperis. On November 16, 1961, the United States District Court for the Eastern District of Missouri certified that the appeal was without merit, not taken in good faith, and permission was denied. Subsequently, on November 29, 1961, counsel who represented appellant at the trial in District Court was appointed by this court to represent him with regard to the question of whether or not he should be permitted to prosecute his appeal in forma pauperis. Leave to do so was granted by this court on March 13, 1962.

For purposes of this appeal, an "Agreed Statement of Facts" was entered into by the appellant and the government indicating the following: On or about February 3, 1961, appellant went to the Burns Buick Company of Maplewood, Missouri, where he selected for purchase a 1953 Buick sedan priced at $325. Appellant dealt with salesman William Rose during this transaction. According to Rose, appellant told him that the car was being purchased for appellant's daughter, away at college, and that his company, the Century General Agency, had previously purchased other automobiles from the Burns Buick Company, both statements being false. Appellant denied making the statements. In payment for the car, appellant gave Rose a check, signed by him, in the amount of $325, drawn on the Century General Agency account with the City National Bank of Centralia, Illinois, and payable to Burns Buick Company. Appellant testified that he told Rose there were insufficient funds in the bank at that time, but that the car would be financed in Evansville, Indiana, upon his arrival there and funds deposited. Rose denied that he had been requested by appellant to hold the check until financing could be arranged or for any other reason and testified that there had been no such conversation.

Appellant was given possession of the automobile on that same day, February 3rd, although he was informed that the title would not be delivered until later. On February 10th appellant picked up the title to the car. Two days later the check was returned marked "insufficient funds".

Testimony of the cashier of the City National Bank indicated that at the time the purchase of the car took place the Century General Agency had in its account but $50; that such account was first opened by the appellant on January 3, 1961, with a deposit of $163.71; that the balance gradually dwindled until on January 21st there was a balance of $36.35; that deposits made on January 25th brought the account to $193.87, which amount was the highest balance ever carried in the account. Thereafter, on February 5th, when the check was presented at the bank, there was a balance in the account of $23.74; that the balance thereafter decreased until on February 17, 1961, there was $1.99; and that the account was subsequently closed on February 18th for charges incurred because of insufficient funds checks.

The records of the bank revealed that appellant, in opening the checking account with the bank, listed as references two business men, both of whom subsequently testified over objection that they had not given permission to use their names as references. They admitted having conversations on one or two occasions with the appellant, such conversations being unrelated to the furnishing of references.

Further testimony established that appellant had been seen driving the car in Evansville, Indiana, and that upon arrest he admitted driving the car from the State of Missouri to Evansville, Indiana.

Appellant first assigns as error the admission of the testimony of witnesses George Rude and Gale Shook, who stated that they had never given permission, nor had they been asked to give permission, to use their names as references for appellant. It was claimed that the introduction of the evidence was prejudicial, irrelevant and remote. The government, on the other hand, contends that this testimony went toward showing the plan or design of the appellant — that is, first obtaining a checking account and then overdrawing it in obtaining the car. It argues that in order to complete the first stage of the plan — the procuring of the account — it was necessary to have references. The government concludes that there was a logical, albeit circumstantial, connection between the testimony of the witnesses and the completion of the plan.

It is well settled that a trial court has "a measure of discretion in allowing testimony which discloses the purpose, knowledge, or design of a particular person." Glasser v. United States, 1942, 315 U.S. 60, 81, 62 S.Ct. 457, 470, 86 L.Ed. 680; Blodgett v. United States, 8 Cir., 1947, 161 F.2d 47, 51, and cases cited therein. Here it is true the intent to procure the automobile under false pretenses was a vital part of the government's case and the trial court did have wide discretion in the admission of evidence tending to establish that intent. We have most serious doubts, however, whether the furnishing of names as references for the purpose of opening a bank account a month prior to the issuance of the check in dispute has sufficient bearing on any essential element of the offense charged to warrant the admission of testimony to that effect. We conclude that while the admission of the testimony was erroneous, it was, under the circumstances herein, not prejudicial. Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S. C.A.

The next assignment concerns an instruction to the jury defining the word "stolen" as it is used in the National Motor Vehicle Theft Act, commonly known as the Dyer Act, 18 U.S. C.A. § 2312, and to which instruction appellant made specific objection. The challenged instruction is...