McIntosh v. United States

• Decision Date: 05 March 1965
• Docket Number: No. 17790.,17790.
• Citation: 341 F.2d 448
• Parties: Charles Lee McINTOSH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

341 F.2d 448 (1965)

Charles Lee McINTOSH, Appellant, v. UNITED STATES of America, Appellee.

No. 17790.

United States Court of Appeals Eighth Circuit.

February 24, 1965.

Rehearing Denied March 5, 1965.

Charles Lee McIntosh, pro se.

Donald A. Wine, U. S. Atty., Philip T. Riley and Jerry E. Williams, Asst. U. S. Attys., Des Moines, Iowa, filed printed brief.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

The defendant-appellant, Charles Lee McIntosh, was tried and convicted by a jury in the United States District Court for the Southern District of Iowa on an indictment charging him with violation of 18 U.S.C.A. § 2312.¹ On August 6, 1964, he was sentenced to imprisonment for a period of four years. Thereafter notice of appeal was filed. On August 25, 1964, an order was entered by the trial court authorizing the appeal in forma pauperis.

The main question McIntosh raises here is whether the trial court erred in refusing to grant his motion for judgment of acquittal based upon insufficiency of the evidence, particularly in that he claims the government failed to establish that the tractor described in the indictment, stolen in Indianapolis, Indiana, and identified in Des Moines, Iowa, was the one which the appellant wrecked near Granger, Iowa, on or about November 7, 1961.

We have examined the record in detail. It consists entirely of the government's case. The defendant did not testify and offered no evidence in his own behalf. He was represented by able, court-appointed counsel during the trial in District Court. On this appeal he appears pro se.²

The evidence was mainly circumstantial. It must be considered in the light most favorable to sustaining the jury's verdict. All reasonable inferences flowing from such evidence and tending to support the verdict must be accepted as established. Glasser v. United States, 1941, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Valentine v. United States, 8 Cir., 1961, 293 F.2d 708, 710; Blumenfield v. United States, 8 Cir., 1960, 284 F.2d 46, 52.

The evidence indicated and the jury was entitled to believe that on or about November 7, 1961, an International tractor and trailer unit was involved in a one-car accident near Granger, Iowa, at about 12:30 a. m. A witness, Gene Pion, was near the scene in his own car and noticed the tractor and trailer unit approaching an intersection at a high rate of speed. It proceeded through a stop sign, rolling over an embankment. Pion stopped his car and on investigation found the defendant McIntosh walking around the outside of the truck and an injured man, Willie Ayers, inside the cab. He talked with McIntosh, whom he assumed to have been the driver, and also with the injured man. He offered to get an ambulance and was told to do so. He left and drove into Granger, calling the Highway Patrol and an ambulance. Upon his return to the scene of the accident both men had disappeared. At the trial, Pion identified the defendant and Willie Ayers as being the two men he saw and talked to at the scene of the accident.

Willie Ayers testified, identifying himself as the party injured in the accident. He had been working with McIntosh and at the time had been asleep in the sleeper compartment of the cab behind the driver. He described the vehicle they were operating as a 1959 "Emeryville International" truck, driven by the defendant McIntosh. He had known McIntosh prior to this particular trip, having seen him with the same tractor some two or three weeks prior thereto in Florida and also in Georgia. He testified that after the accident the defendant McIntosh told him the "truck was hot" and to "get out". He did not remember getting out of the truck. He apparently was taken or somehow got to the Broadlands Hospital in Des Moines, Iowa, where he was confined for three to four weeks with a ruptured spleen. He also testified that McIntosh, on a prior trip, had told him, "Don't cross no scales" and that he, McIntosh, didn't want to go through Indianapolis.

Special Agent Maurice E. Murphy testified that he was notified by the Iowa Highway Patrol of a wrecked tractor at Owen Crist's lot in Des Moines, Iowa, and that on November 9, 1961 he examined the wrecked vehicle, which was locked in a garage adjacent to the office. He identified it as a 1959 International cab-over tractor bearing serial No. EF-344OG and as being red in color with a base coat of yellow. On examination of the interior of the cab he found a number of items identified as driver's logs, receipts, miscellaneous papers and a pair of shoes. These items were introduced as group Exhibit No. 1, and were itemized by the witness. A driver's log found therein indicated McIntosh as being the driver. It carried entries from October 13 to November 3, 1961, referring to numerous trips. There was also a driver's log for "W. Ayers". An envelope contained numerous receipts, contracts with transportation companies, highway permits, identification cards, variously made out to "McIntosh Trucking Service, Dayton, Ohio", "McIntosh", "Charles McIntosh, 4517 Wire Drive, Dayton, Ohio", "Charles L. McIntosh, 4517 Wire Drive, Dayton, Ohio", "Charles McIntosh, Dayton, Ohio", and "Charles Lee McIntosh, Route 1, Box 979, Ozark, Alabama". The papers were signed "Charles McIntosh" and "Charles Lee McIntosh". Defendant's objection to the receipt of Exhibit 1 was overruled.

Paul F. O'Brien, branch manager of the International Harvester Company at Indianapolis, Indiana, testified that his company was the owner of a 1959 International Harvester tractor serial No. EF-344OG and that such tractor had been stolen from their lot in Indianapolis, Indiana, between Saturday, October 7, 1961, at 4:00 p. m. and Monday, October 9, 1961, at 8:00 a. m. He testified that the stolen tractor had a value of $8,900; that it had been painted red by his company over the previous yellow. He further described it as a Model DCO³-405, of which there were others, such being a description of the model only, not an identification of the particular vehicle.

Special Agent Edward B. Hogan testified that he interviewed the defendant McIntosh on January 17, 1962, at the defendant's home in Dayton, Ohio, at which time he inquired of the defendant about a tractor with which the latter was involved in an accident in Iowa. McIntosh told him the tractor was a 1957 International Harvester leased by him from one Joseph Starr in Danville, Illinois, in late October 1961 and that it had been wrecked in Iowa. McIntosh exhibited and gave to Hogan a lease which he said covered the 1957 vehicle he claimed to have obtained from Starr and which he said was the vehicle he had wrecked in Iowa. The lease was dated September 2, 1961, and described a 1957 International, DCO-405-32 AF. (This is a description of the model only, not an identification symbol of that particular vehicle.) The lease was marked Exhibit No. 2 and was received in evidence over defendant's objection. McIntosh described for Hogan the person from whom he claimed to have leased the tractor as one he had probably called on long distance telephone on October 17, 1961, at either Danville, Illinois, or Penfield, Illinois.

Joseph Starr, of Penfield, Illinois, testified that he knew the defendant McIntosh as a trucker. His acquaintance with him was "casual". He had received a telephone call from McIntosh sometime in 1961. He stated that so far as he knew, he was the only Joseph Starr in Penfield, a town with a population of approximately 350. He denied having entered into any lease with McIntosh for any tractor of any kind and upon being shown the lease, Exhibit 2, denied its execution. He had examined the telephone book for Danville, Illinois, and found no one there by the name of Joseph Starr.

Defendant concedes that the evidence introduced by the government concerning the "1959 International serial No. EF-344OG" established that it had been stolen. He contends, however, that there was no evidence showing or tending to establish his possession of that particular vehicle and the interstate transportation thereof, citing Dixon v. United States, 8 Cir., 1961, 295 F.2d 396. He argues that the vehicle he was driving at Granger, Iowa, was not identified or connected by any evidence with the stolen vehicle set forth in the indictment. It is his position that there was no showing that the tractor examined at Owen Crist's garage by Special Agent Murphy, the concededly stolen vehicle, was the same vehicle driven by him and wrecked near Granger, Iowa, relying upon Cox v. United States, 8 Cir., 1938, 96 F.2d 41, 42; Tyler v. United States, 10 Cir., 1963, 323 F.2d 711, 712; and Thompson v. United States, 5 Cir., 1964, 334 F.2d 207, 209.

True enough, the evidence here was mainly circumstantial but we believe there was sufficient thereof from which the jury could draw the conclusions that the 1959 International tractor described in the indictment had been stolen; that the defendant had transported it in interstate commerce and was operating it at the time of the accident, and that at that time he knew it had been stolen. See Dixon v. United States, supra, 8 Cir., 1961, 295 F.2d 396.

That the tractor had been stolen from the International Harvester Company lot at Indianapolis, Indiana, was definitely established through O'Brien, International branch manager. Exhibit No. 1, consisting of the articles found by Agent Murphy in the stolen vehicle after it had been hauled in to Owen Crist's lot directly connects the defendant McIntosh with the stolen vehicle. Defendant argues that it was improperly received in evidence and that the items comprising Exhibit 1 were in no way connected to him, nor were they authenticated. The various items, carrying the name "McIntosh", "Charles McIntosh" and "Charles Lee McIntosh" and for the most part giving his address as Dayton, Ohio, together with the driver's logs for both McIntosh and Ayers, were all found in the truck's cab shortly after the...