McNeely v. United States

• Decision Date: 28 December 1965
• Docket Number: No. 18108,18109.,18108
• Citation: 353 F.2d 913
• Parties: Charles Earl McNEELY, Appellant, v. UNITED STATES of America, Appellee. Robert Eugene JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

353 F.2d 913 (1965)

Charles Earl McNEELY, Appellant, v. UNITED STATES of America, Appellee.

Robert Eugene JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18108, 18109.

United States Court of Appeals Eighth Circuit.

December 28, 1965.

Norman S. London, St. Louis, Mo., for appellants.

Robert J. Koster, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before VOGEL, Chief Judge, and BLACKMUN and GIBSON, Circuit Judges.

GIBSON, Circuit Judge.

These are appeals from the United States District Court for the Eastern District of Missouri in which appellants were jointly tried before a jury and convicted of violating Title 18, U.S.C.A. § 2115, burglary of a United States Post Office.

Sometime during the night of July 26 or early morning of July 27, 1964, a branch Post Office in Maplewood, Missouri, was forceably entered and an unsuccessful attempt was made to break into the safe. This burglary was unbeknown to Patrolman Walton of the neighboring suburb of Brentwood when he observed two men in an automobile parked with its motor running in a closed filling station. The time was 12:45 a. m. July 27, 1964. Patrolman Walton pulled his unmarked police car into the service station and the parked car sped away in the opposite direction. Patrolman Walton pursued the suspicious car and with his spotlight signaled it to stop. The signal was not heeded, and the car continued at speeds exceeding the posted limit of 30 m. p. h. by at least 15 miles per hour. As the car was making a right-hand turn directly in front of Patrolman Walton, he observed the passenger in the front seat push a large canvas bag from the front window. As the bag hit the pavement he saw "pieces of metal" come out of the bag, one of which he specifically recognized as a sledge hammer. He heard the sound of metal striking the pavement, and was forced to swerve his automobile to avoid running into the scattered contents of the bag. A short time later the fleeing car turned into a dead end street; Patrolman Walton blocked the entrance of the street and arrested the occupants on the stated charge of littering. The driver of the car was identified as defendant McNeely and the passenger was defendant Johnson. Upon returning the few blocks to where the bag was thrown from the car, Patrolman Walton and an assisting officer discovered some heavy duty gloves and tools of the type commonly used to commit burglaries. Appellants were promptly arrested for the Missouri felony of illegal possession of burglary tools. While they were in custody of the Brentwood police, appellants' clothes were separately taken from them and sent in separate packages to a United States Government laboratory for examination. Appellants were subsequently transferred to Federal authorities and tried for burglary of the Maplewood Post Office.

The bag, tools, and gloves found on the street were introduced at the trial. The tools were connected with the scene of the crime by comparisons of these tools to other evidence found at the scene. Markings or striations from the face of the sledge hammer were matched with markings found on the handle of the safe. A broken punch recovered from the safe dial was compared with the broken end of a punch found with the tools. Finally, bits of paint and debris found on these tools and the gloves were compared with samples of debris gathered from the scene of the burglary. The jury was allowed to make visual comparisons between the evidence gathered from the street and the evidence from the Post Office and its safe. In addition, a government witness testified as an expert that the above exhibits compared positively with each other.

From the clothes of McNeely and Johnson were lifted certain paint chips and minute debris. These chips and debris were likewise compared with the chips and debris found on the tools and gloves and with debris samples gathered from the Post Office. The jury was allowed to make a visual comparison through a microscope, and the government's expert witness testified that the debris on appellants' clothing was identical to the debris from the scene of the burglary and likewise was identical to debris found on the tools and gloves.

Appellants argue that the admission into evidence of the tools and gloves found in the street was erroneous because the connection between these tools, the appellants, and the crime in question requires the piling one inference upon another. For instance appellants say that it is only an inference that these tools were in the bag thrown from the car. To connect appellants to the crime, the jury must base this inference on the additional inference that these tools were used in the commission of the crime. This is not permissible as a matter of law, say appellants.

They also point out that the evidence found on the clothing of McNeely is admissible only against McNeely and the evidence on Johnson's clothing is admissible only against Johnson; and, contend it was error not to caution or instruct the jury to this effect, even though appellants made no such request of the Court.

Finally, appellant McNeely complains that his arrest was illegal in that the stated grounds for arrest was littering, when in fact he admittedly was not observed throwing anything from the car. Therefore, the resultant search and seizure of his clothing was illegal and the evidence seized therefrom was inadmissible.

It is the opinion of this Court that none of the objections are meritorious and that the trial court's judgments should be affirmed.

As to appellants' first contention, we agree that it is improper for a court to allow a jury to draw inferences based solely upon another inference. However, that well-known rule of evidence has no application to the facts of this case. The jury was not asked to infer that the tools in question were in the possession of appellants and then infer that the tools were used in the burglary. There is direct positive evidence on this issue. Furthermore, there was positive, direct, and circumstantial evidence that the tools in question were in the possession of appellants and thrown from their fleeing car.

First, there is no doubt that these tools were positively identified as the tools used in the burglary. The impressions made by a hammer on the safe door matched the impressions found upon the sledge hammer that was recovered from the street. The broken punch found in the safe dial was identified as the remaining half to the piece of punch found with the tools. In addition small particles of paint and dust which were removed from the scene of the crime identically matched particles which were removed from the tools.

Second, from the web of circumstantial and direct evidence there can be little doubt that these tools were in the possession of appellants and were thrown from their car. While in close pursuit of the car occupied by appellants, Officer Walton directly observed defendant Johnson throw the identified bag from the car. When the bag hit the street, in addition to hearing the sound of metal striking the pavement, he was able to testify that he saw "pieces of metal" fly from the bag, and identify one of the pieces as a sledge hammer. Patrolman Walton testified that the street was clear prior to the bag being jettisoned, that he had to swerve to keep from running over the discharged objects, and that upon his return within a few minutes to the spot where the bag was thrown he found the bag containing some tools, gloves and various other tools scattered near the bag. All of this took place in the early morning hours on a residential street that Patrolman Walton observed to be completely deserted except for himself and appellants. The tools, bag, and gloves found in the street were identified by Patrolman Walton and admitted into evidence.

In addition, small particles of paint and dust were removed from the clothing of McNeely and Johnson. Identical particles were removed both from the tools and from the scene of the crime. This evidence connects the tools to the appellants and places all of them at the scene of the burglary. Since the tools can be further identified as the ones actually used in the attempt to crack the safe, the web of evidence strongly implicates appellants as the perpetrators of the burglary. The involvement of appellants in the burglary was completed with no impermissible use of evidence.

The direct evidence of appellants' attempting to rid themselves...