Mims v. United States, No. 20626.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE, , BROWN, Circuit , and BREWSTER
Citation375 F.2d 135
PartiesGeorge Lee MIMS, Sr., Appellant, v. UNITED STATES of America, Appellee.
Decision Date16 February 1967
Docket NumberNo. 20626.

375 F.2d 135 (1967)

George Lee MIMS, Sr., Appellant,
v.
UNITED STATES of America, Appellee.

No. 20626.

United States Court of Appeals Fifth Circuit.

February 16, 1967.


375 F.2d 136
COPYRIGHT MATERIAL OMITTED
375 F.2d 137
James F. Snelling, St. Petersburg, Fla., for appellant

Joe H. Mount, Asst. U. S. Atty., Tampa, Fla., for appellee.

Before TUTTLE, Chief Judge, BROWN, Circuit Judge, and BREWSTER, District Judge.

BREWSTER, District Judge:

The first count of the indictment charged that on or about July 1, 1962, appellant and Willie Joe Henderson, Thomas Napper, George Lee Mims, Jr., Dennis Michael O'Connor and Stephen Robert O'Connor armed and disguised themselves and unlawfully attempted to enter the Madeira Beach Bank, in Madeira Beach, Pinellas County, Florida, with intent to rob the bank by force and violence and by intimidation. The second count charged that during the period from June 5, 1962 through the following July 11th appellant conspired with the other parties named above to enter and rob the Madeira Beach Bank, and that nine overt acts were committed in furtherance of the conspiracy. For reasons that will be apparent from the summary of facts, the persons other than appellant named in the indictment as participants in the offenses were not charged as defendants therein. Henderson appears to have waived indictment and to have received a probated sentence on a plea of guilty, and the others were handled as juveniles.

The appellant entered a plea of not guilty to each count, and in connection therewith his counsel advised the court and jury that evidence would be offered raising a question as to his sanity at the time of the alleged offenses. The jury convicted appellant on each of the two charges.

The only questions serious enough to warrant discussion are whether the evidence raises a reasonable doubt as a matter of law as to the appellant's criminal responsibility for the acts charged; and whether plain error appears in the court's charge in connection with the first count.

The importance appellant attaches to the nature of the robbery plan, in connection with the insanity question, requires a more detailed fact statement than would be otherwise necessary. Since the jury decided the case against the appellant, the facts and legitimate inferences making up that statement must, of course, be determined by reviewing the evidence from the standpoint most favorable to the government. Based on the evidence before them, the jury was justified in reaching the conclusions contained in the summary that follows.

Appellant was a middle-aged mechanic who had been employed at the municipal garage in Treasure Island, Florida, near Madeira Beach, for several years prior to the incidents here involved. His wife died in March, 1962, leaving him with two children by their marriage. One of them was George Lee Mims, Jr., 13 years of age, and the other was a daughter several years older. Within less than 60 days after the death of his wife, he and a married woman with two children had agreed to marry each other if she could persuade her husband to get a divorce. There was some delay about the divorce, and she moved into appellant's house with her children in the middle of June, and continued to live there with him without benefit of clergy until they married shortly before the trial in the following year.

The additions to the appellant's household brought on financial difficulties, even though he was moonlighting on a filling station job three evenings a week and was handling a little repair work on his friends' personal cars on some weekends. He was also having some serious problems with his children. The nature of them was not disclosed. He apparently tried to solve his problems by drinking, and during June and July he frequently drank to excess. Some calls to the Madeira Beach Bank prior to June for the purpose of repairing adding machines had given him access to and familiarity with the area of the bank where the money was kept and he began to consider robbing it. In early June,

375 F.2d 138
he implicated Willie Joe Henderson, a 22 year old Negro with an eleventh grade education who worked under him at the garage. He also involved his son, George Lee Mims, Jr., Dennis O'Connor, a 15 year old boy who had run away from home and moved into appellant's house, and Stephen O'Connor, 14 years old

Guns and ammunition were procured, so that at the time of the two trips to the bank each participant was armed with a loaded pistol, a shotgun or a rifle. For disguises, they had coveralls, sailor hats and face masks. Appellant explained to his companions that the advantage of the coveralls was that they could be put on over street clothes and taken off quickly. By virtue of knowledge gained while working on the adding machines in the bank, the appellant gave each of his companions a definite assignment to do while in the bank. He had also concluded that the fewest customers would be in the bank around closing time, so he planned to enter it just before it closed its doors to the public for the day.

The first trip to the bank for the purpose of robbing it was Saturday, July 7th. At that time Thomas Napper was not involved. All the other participants met at the garage where appellant and Henderson worked at a time when it was closed for business that day. They put on their coveralls and disguises, got into a car and drove to the bank, intending to reach there about five minutes before closing time. However, they miscalculated the time, and got there a few minutes after it had closed. When they arrived and saw the situation, they left without making any attempt to go into the bank.

The next visit to the bank was on Wednesday, July 11th. On the previous day, the appellant rented from the King Car Rentals Service in Treasure Island a Ford Galaxie bearing Florida license plates for use in going to and from the bank. Before going to the bank he put some stolen out-of-state license plates over the Florida plates. He also rented an apartment with a private garage in an area that could be reached quickly after leaving the bank. The rented car was put in the garage at the apartment on July 10th and left there until it was used for transportation to the bank. The plan was that the participants could come to the apartment in their own cars, put on their disguises there, go to the bank in the rented car, rob the bank and return to the apartment before police began to watch the cars on the streets, shed their disguises, hide the get away car, guns and disguises in the apartment and garage, and then leave in their regular clothes in small groups in the other cars.

Willie Joe Henderson brought his cousin, Thomas Napper, to the apartment and had him included in the group that was to rob the bank. The appellant was under the influence of whiskey when he appeared that day, and brought two bottles of whiskey with him. When all the parties had put on their disguises and were ready to go, appellant suggested to them that a drink of whiskey would settle their nerves. Some of them took a drink. They drove to the bank parking lot in the rented car, and sent Henderson around to see if the bank was still open. It was, but he was getting reluctant to go through with the robbery and went back and told them the bank was closed. They knew that he had been wavering, and began to doubt his statement after a few minutes; so all of them went around to the bank entrance with intention to go in and commit the robbery, if the bank was still open. The proof indicates that they had no more intention of forcing their way in if the bank was closed, than they had when they went to the bank on the preceding Saturday. By the time they got to the entrance, the bank had actually closed for the day. A Mrs. Barkiewicz was at the door shaking it to attract the attention of one of the bank employees to get him to let her in to correct an error in a deposit she had made a few minutes before closing time. One of the boys placed the muzzle of his pistol at the side of her head, and another one told her that they were going to rob the bank. She thought it was a

375 F.2d 139
prank. When she replied that it was too late, as the bank had already closed, one of appellant's party said, "Let's get out of here", and they ran back to their car and fled

The tellers in the bank knew of Mrs. Barkiewicz's plan to return after closing time, and it was their intention to open the door for her for that purpose. A teller started to the door to admit her; but through the plate glass door he saw the group wearing disguises and carrying weapons. He decided that they were there to rob the bank and stopped before he got to the door. He testified that one of the group did push on the door as if to enter. The testimony of all the other witnesses, including Mrs. Barkiewicz who was right at the door during the entire time the group was there, was to the effect that none of the participants in the planned robbery ever put a hand on the door or made any effort to enter the bank.

The group returned to the apartment quickly, drove the rented car into the garage and closed the door. They then took off their disguises and put them and their guns and ammunition in the trunk of that car. The O'Connor boys and George Mims, Jr., remained at the apartment while the appellant was driving Henderson and Napper in his Oldsmobile to their homes. They were halted on the way by a patrolman who had heard a broadcast that a bank robbery had been attempted by a group of white and Negro males. Before the officer got to the car, the appellant instructed Henderson and Napper to remain silent and let him do the talking. The appellant got out of the car, identified himself by his driver's license, and asked why he was stopped. When he was told that there had been an attempt to rob a bank at the beach, he replied that he was surprised that anyone was crazy enough to try to rob a bank. The officer observed...

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176 practice notes
  • USA v. Tiran Rodez Casteel, No. 1:08-cr-00053.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • July 7, 2010
    ...passed the preparation stage so that if it is not interrupted extraneously, it will result in a crime.” Also see Mims v. United States, 375 F.2d 135, 148 n. 40 (5th Cir.1967); People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 309 (1935). Here it is undisputed that Joyce, despite having both the ......
  • People v. Figueroa
    • United States
    • United States State Supreme Court (California)
    • April 7, 1986
    ...(5th Cir.1976) 544 F.2d 213, 219-221); that the evidence showed attempted robbery as a matter of law (Mims v. United States (5th Cir.1967) 375 F.2d 135, 147-149); that a particular firearm was subject to registration (Bryan v. United States (5th Cir.1967) 373 F.2d 403, 407); that certain as......
  • Gordon v. United States, No. 25973.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 30, 1971
    ...State of Oregon, 343 U.S. 790, 803, 72 S.Ct. 1002, 1009, 96 L.Ed. 1302 (Mr. Justice Frankfurter dissenting). See: Mims v. United States, 375 F.2d 135, 141, 142 (5th Cir. 110 See: Blake v. United States, 407 F.2d 908, 913-916 (5th Cir. 1969); Mims v. United States, 375 F.2d 135, 142-143 (5th......
  • Joyce v. United States, No. 23784.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 26, 1971
    ...does not go to proving contempt by mutilation. 12 Etheridge v. United States, 380 F.2d 804, 809 (5th Cir. 1967); Mims v. United States, 375 F.2d 135, 137 (5th Cir. 1967); Wilson v. United States, 118 U.S. App.D.C. 319, 335 F.2d 982 (1963); Beatrice Foods Co. v. United States, 312 F.2d 29, 4......
  • Request a trial to view additional results
176 cases
  • USA v. Tiran Rodez Casteel, No. 1:08-cr-00053.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • July 7, 2010
    ...passed the preparation stage so that if it is not interrupted extraneously, it will result in a crime.” Also see Mims v. United States, 375 F.2d 135, 148 n. 40 (5th Cir.1967); People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 309 (1935). Here it is undisputed that Joyce, despite having both the ......
  • People v. Figueroa
    • United States
    • United States State Supreme Court (California)
    • April 7, 1986
    ...(5th Cir.1976) 544 F.2d 213, 219-221); that the evidence showed attempted robbery as a matter of law (Mims v. United States (5th Cir.1967) 375 F.2d 135, 147-149); that a particular firearm was subject to registration (Bryan v. United States (5th Cir.1967) 373 F.2d 403, 407); that certain as......
  • Gordon v. United States, No. 25973.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 30, 1971
    ...State of Oregon, 343 U.S. 790, 803, 72 S.Ct. 1002, 1009, 96 L.Ed. 1302 (Mr. Justice Frankfurter dissenting). See: Mims v. United States, 375 F.2d 135, 141, 142 (5th Cir. 110 See: Blake v. United States, 407 F.2d 908, 913-916 (5th Cir. 1969); Mims v. United States, 375 F.2d 135, 142-143 (5th......
  • Joyce v. United States, No. 23784.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 26, 1971
    ...does not go to proving contempt by mutilation. 12 Etheridge v. United States, 380 F.2d 804, 809 (5th Cir. 1967); Mims v. United States, 375 F.2d 135, 137 (5th Cir. 1967); Wilson v. United States, 118 U.S. App.D.C. 319, 335 F.2d 982 (1963); Beatrice Foods Co. v. United States, 312 F.2d 29, 4......
  • Request a trial to view additional results

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