McDonough v. United States, 15719.

• Citation: 248 F.2d 725
• Decision Date: 22 November 1957
• Docket Number: No. 15719.,15719.
• Parties: John Anthony McDONOUGH, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

248 F.2d 725 (1957)

John Anthony McDONOUGH, Appellant, v. UNITED STATES of America, Appellee.

No. 15719.

United States Court of Appeals Eighth Circuit.

October 25, 1957.

Rehearing Denied November 22, 1957.

Edward K. Delaney, St. Paul, Minn., for appellant.

Keith D. Kennedy, Asst. U. S. Atty., St. Paul, Minn. (George E. MacKinnon, U. S. Atty., St. Paul, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Chief Judge.

Appellant was convicted on the second count of an indictment which, omitting formal allegations, charged that:

"Count I

"(18 U.S.C. § 641)

"On or about the 4th day of October, 1955, in the City of St. Paul, County of Ramsey, Third Division, State and District of Minnesota, the defendant, John Anthony McDonough, did knowingly, unlawfully and feloniously steal certain things of value of the United States Department of Health, Education and Welfare, a department of the United States, to-wit, one United States Signal Corps Power Unit PE-77-D bearing serial number 20379: CYX — Ordnance No. 3875 — Phila. — 44; and nine, more or less, sheets of .040 Gauge Reynolds Aluminum bearing the following identification: `Reynolds 24S-T3-QA-362 ALCLAD\', said articles and things having an aggregate value of $316.64, more or less.

"Count II

* * * * * *

"On or about the 14th day of April, 1956, in the City of St. Paul, County of Ramsey, Third Division, State and District of Minnesota, the defendant, John Anthony McDonough, did knowingly, unlawfully and feloniously conceal and retain certain things of value of the United States Department of Health, Education and Welfare, a department of the United States, which had been stolen, to-wit: one United States Signal Corps Power Unit PE-77-D bearing serial number 20379: CYX — Ordnance No. 3875 — Phila. — 44; and nine, more or less, sheets of .040 Gauge Reynolds Aluminum bearing the following identification: `Reynolds 24S-T3-QA-362 ALCLAD\', said articles and things having an aggregate value of $316.64 more or less, with intent to convert same to his own use and gain, knowing the same to have been stolen."

The property described in the indictment was government property, and at and prior to the time of its theft was located in or about a warehouse at the State Fair Grounds in St. Paul, Minnesota. The property was so-called government surplus and had been allocated to the State of Minnesota Department of Education by the United States Department of Health, Education and Welfare for the purpose of distribution to eligible health and educational institutions. The power unit was inside the warehouse but the sheets of aluminum were stored outside and immediately adjacent thereto. The evidence as to appellant's larceny of the property was purely circumstantial. The evidence as to appellant's possession of the property was without dispute but it was appellant's claim that he purchased it from two unknown men and that he did not know it was stolen. There was evidence which the government claimed proved that appellant concealed the property.

At the close of the government's evidence appellant in effect moved for judgment of acquittal as to Count II of the indictment on the ground that the government's evidence failed to establish a prima facie case showing that the property was concealed by him as charged in Count II. The motion was denied. The appellant thereupon introduced testimony in his own defense but did not at the close of all the evidence renew his motion for judgment of acquittal.

The case was submitted to the jury on instructions to which the appellant saved certain exceptions. The jury returned a verdict finding appellant not guilty on Count I and guilty on Count II. On the verdict so returned the court entered judgment and sentence, following which appellant moved for judgment of acquittal notwithstanding the verdict or in the alternative for a new trial. The motion was denied and appellant prosecutes this appeal seeking reversal on various grounds, by a number of which appellant seeks to challenge the sufficiency of the evidence to sustain the verdict.

Before considering the contentions of appellant on this appeal we shall first consider the sufficiency of the record to entitle him to present the questions urged. As has been observed, although appellant interposed a motion which we have accepted as equivalent to a motion for judgment of acquittal at the close of the government's evidence, after his motion was denied he introduced testimony in his own defense and he did not renew his motion for judgment of acquittal at the close of all the evidence.

To entitle an appellant in either a civil or criminal case to urge in this court that the evidence was insufficient to sustain the verdict of the jury, he must, at the close of all the evidence, have interposed in the trial court a motion either for a directed verdict in a civil case or for judgment of acquittal in a criminal case. By this procedure the question of the sufficiency of the evidence becomes a question of law which the court will consider on appeal. It is well settled that absent such motion this court will not review the evidence. Appellant may not for the first time on appeal raise the question of the sufficiency of the evidence. It is equally well settled that an appellant who interposes a motion for a directed verdict at the close of plaintiff's evidence in a civil case, or a motion for judgment of acquittal at the close of the government's evidence in a criminal case, who thereafter introduces testimony in his defense, thereby waives his motion unless he renews it at the close of all the evidence. Seventh Amendment, U. S. Constitution; Leeby v. United States, 8 Cir., 192 F.2d 331; Mitchell v. United States, 8 Cir., 208 F.2d 854; Meier & Pohlmann Furniture Co. v. Troeger, 8 Cir., 195 F.2d 193, 194. Thus in Leeby v. United States, supra, we said 192 F.2d 333:

"We shall first refer to the claim of error in denying defendant\'s motion for acquittal interposed at the close of the government\'s case. It is observed that after this motion was interposed and denied at the close of the government\'s case, defendant offered testimony and himself testified in his own behalf. He did not renew this motion at the close of all the evidence. Defendant was entitled to offer evidence in his defense notwithstanding the fact that he had interposed a motion for acquittal at the close of the government\'s testimony but by so doing he waived his objection to the ruling of the court in denying his motion and his right to allege

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