Moore v. United States

• Decision Date: 01 February 1966
• Docket Number: No. 22358.,22358.
• Citation: 356 F.2d 39
• Parties: Robert Lee MOORE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

356 F.2d 39 (1966)

Robert Lee MOORE, Appellant, v. UNITED STATES of America, Appellee.

No. 22358.

United States Court of Appeals Fifth Circuit.

February 1, 1966.

Robert A Watson, Estil A. Vance, Jr., Fort Worth, Tex., for appellant.

Conard L. Florence, Asst. U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., Melvin M. Diggs, U. S. Atty., Stanley McMurry, Asst. U. S. Atty., for appellee.

Before RIVES, BROWN and MOORE,^* Circuit Judges.

RIVES, Circuit Judge:

Richard L. Parks and Robert Lee Moore were jointly indicted in two counts, each charging a violation of Title 18, U.S.C. § 1708. The first count charged that the defendants stole a parcel from a United States mail sack; the second count charged that they knowingly had in their possession a set of dinnerware, the contents of a parcel which had been stolen from an authorized depository for mail matter, knowing the same to have been stolen.

Parks entered a plea of guilty and Moore pleaded not guilty. On a trial by jury, Moore was found guilty under both counts. He was sentenced by the court to serve five years' imprisonment on each count, the sentences to run concurrently. On appeal, the questions presented for review are: (1) whether the evidence is sufficient to support Moore's conviction; (2) whether the district court failed adequately and properly to instruct the jury; and (3) whether the judge improperly commented to the jury upon the weight of the evidence.

(1) Sufficiency of the Evidence.

The court did not err in denying Moore's motion for a judgment of acquittal. Moore admitted that he loaned a knife to Parks, and Parks testified that he used the knife to open the parcel which he had stolen from the mail sack. Moore's guilt or innocence turned on his intent and whether he knew of the theft. The testimony of government witness H. A. Shirk, if believed by the jury, furnished an adequate foundation for finding that Moore aided and abetted Parks in the commission of the theft, or associated himself with Parks in the possession of the stolen property.

At about 7:30 p. m. on December 15, 1963, Moore and Parks walked out of the Texas and Pacific Railroad Station in Fort Worth, Texas. They walked up a flight of stairs and out on a platform where a number of mail trucks or carts were located, piled high with sacks of mail. Moore walked on one side of the carts, Parks on the other. The mail was stacked so high that they could not see each other. Parks took a sack of mail from one of the mail carts.

Mr. Shirk, a Texas and Pacific Railroad locomotive engineer, testified that he had seen two men dressed similarly to the garb admittedly worn by Moore and Parks, walking on either side of several mail carts; that the man to the right of the cart picked up a mail sack, put it over his shoulder, and went around the cart where the two men met. Shirk further testified that when he flashed a flashlight toward the two men, both of them ran, and he immediately reported the theft.

One policeman found the stolen mail sack and its scattered contents beside a nearby warehouse. Another policeman found Moore and Parks and arrested them some seven or eight blocks from the Texas and Pacific Station. Parks was carrying the box of dinnerware which he had stolen from the mail sack. Upon searching Moore, he was found to have a pocket knife.

Both Parks and Moore testified. Each admitted to a previous criminal record. According to their testimony, they had met casually while each was seeking employment in Fort Worth. On the afternoon in question, they and several other unemployed men had gone to the railroad station, "because that is the only place we had a bathroom, and to go and get warm." They left the station to go to their respective places of lodging.

Parks admitted stealing the mail sack, testified that it was an impulsive act, and that Moore could not see him. He further testified that he carried the sack in front of him for about three-quarters of a block to a warehouse, took the mail out of the sack and found that he didn't have anything with which to open the boxes. He caught up with Moore and asked Moore to lend him his knife.

"A. He wanted to know what I was going to use it for.

"Q. What did you say?

"A. I wouldn\'t tell him, I just said, `Let me use your knife.\' He said, `Well, if there is any trouble, I don\'t want any part of it.\' And I just turned away and went back.

"Q. Went back quickly?

"A. Yes.

"Q. Then what did you do?

"A. I opened the box, and the only valuable thing was the dishes. I took those."

Parks then walked rapidly along the track, caught up with Moore and returned his knife. Parks was then carrying the stolen dishes. Moore asked no questions. They waited for a freight train to pass, and took a few steps when lights shined on them and they were apprehended.

In brief, according to the testimony of Parks and Moore, Parks was the sole guilty party. However, according to the testimony of Mr. Shirk, the two men met together shortly after the mail sack was stolen, and both ran when he flashed his light on them. Coupled with the admitted loan of the knife by Moore to Parks, there was sufficient evidence to support Moore's conviction on either count.

(2) Instructions to the Jury.

The Government, with commendable candor, raises the question of whether, in view of the decision in Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773, the district court erred in its omission of instructions that the jury could convict of either Count 1 or Count 2, but not of both. The Government insists, however, that the Milanovich opinion is not determinative of the disposition of this appeal. We do not reach that question, because we are convinced that, under the circumstances of this case, the judgment must be reversed for failure of the district court to inform the jury of the type of activity necessary to constitute aiding and abetting.

It is undisputed that Parks was the one who actually stole the parcel from the mail sack and the one who retained the stolen dinnerware in his hands. Moore could be found guilty only on a theory of accessorial responsibility.

It is further undisputed that Moore loaned his knife to Parks, and that such loan aided Parks in the theft of the package and in committing it to his possession. The crucial issue was that of criminal intent. Did Moore intend to join with Parks in stealing the parcel from the mail sack? Did Moore loan his knife to Parks with knowledge that it was to be used in the commission of a crime and with the intention that it be so used?

The district court charged the jury in pertinent part as follows:

"So now, if you find and believe from the evidence that has been adduced before you in this court, beyond a reasonable doubt, that the defendant, Robert Lee Moore, did, as charged in Count 1, aid or participate in the abstraction of mail from the United States Mail bag, as charged in Count 1, then you will find the defendant, Robert Lee Moore, guilty as charged.

"If you have a reasonable doubt, you will acquit him.

"On Count 2, if you find from the evidence beyond a reasonable doubt that the box abstracted from the mail contained dishes which were there in the possession of the defendant (sic), one of whom being Robert Lee Moore, and if you so find from the evidence as above required, then you will find Robert Lee Moore guilty on Count 1 and so say in your verdict.

"If you have a reasonable doubt of it, you will acquit him.

* * * * * *

"Now, on the question of accomplice, one that knowingly and voluntarily cooperates with, aiding, assisting, advising, or encouraging another in the commission of a crime is an accomplice.

"The testimony of an accomplice ought to be received with suspicion and with a great degree of care and caution. A principal may be, when considering his evidence, an accomplice and yet, at the same time a principal, that is a principal offender; so if you find and believe from the evidence that the witness, Richard Parks, was participating in the offense, he would be an accomplice, and you may treat his evidence as defined.

"On the subject of principals, whoever directly commits any act, constituting an offense defined in any law of the United States, or whoever abeits (sic) or counsels, or induces or procures the commission is a principal. Under the Federal law administered in this Court, anyone aiding and abeiting (sic) in the commission of an offense is a principal."

At the conclusion of its oral charge, the court...