Morgan v. United States, 8370.

• Decision Date: 07 January 1966
• Docket Number: No. 8370.,8370.
• Citation: 355 F.2d 43
• Parties: Richard Charles MORGAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

355 F.2d 43 (1966)

Richard Charles MORGAN, Appellant, v. UNITED STATES of America, Appellee.

No. 8370.

United States Court of Appeals Tenth Circuit.

January 7, 1966.

Paul C. Duncan, Jr., Oklahoma City, Okl., for appellant.

John A. Babington, Asst. U. S. Atty. (John Quinn, U. S. Atty., on the brief), for appellee.

Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

SETH, Circuit Judge.

Appellant was tried and convicted by a jury on a charge of interstate transportation of a stolen motor vehicle from Houston, Texas, to Tortugas, New Mexico, in violation of the Dyer Act, 18 U.S.C. § 2312.

On this appeal, appellant urges that the trial court committed error in failing to grant a motion for a mistrial made by the appellant during the course of the opening statement by the prosecution. The motion was based on an assertion by the Government's attorney that evidence would be introduced showing that appellant had stolen certain mechanics tools at the time he stole the automobile in question. Appellant also urges it was error for the trial court to permit the subsequent introduction of this evidence relating to the theft of the tools and their subsequent sale. As an unrelated matter, appellant also argues that he was not properly advised of his rights when he made a statement to agents of the FBI when questioned on December 14, 1963, while in jail in Fallon, Nevada, on a state charge about five months before his indictment.

Appellant was employed as a mechanic in a garage in Houston, Texas. A customer brought the Mercury automobile in question to the garage to have it repaired. The record shows that the appellant had certain mechanics tools which belonged to the owner of the garage placed in the automobile. He with his wife and six children left Houston in the car for Marfa, Texas. It appears that on the way to Marfa the appellant sold the tools. The record is not entirely clear on the point, but it appears that appellant and his family stayed for at least a week in the vicinity of Marfa or Brownsville, Texas, using the car during this period. Appellant and his wife had a disagreement, and the appellant with his two older children drove the car to El Paso, Texas, and to Las Cruces, New Mexico, where appellant found a job. The car was used from time to time in trips between El Paso, Texas, and the vicinity of Las Cruces, New Mexico. Appellant sold the car in Tortugas, New Mexico, and departed for Nevada.

The record shows, as indicated above, that the prosecution in the opening statement told the jury proof would be submitted as to the stolen tools and their subsequent sale. The appellant's motion for mistrial was denied, and subsequently evidence as to the tools was introduced over appellant's objections. The court gave instructions to the jury as to such evidence that: "It is only admissible insofar as it may be probative as to intent, or absence of mistake, or accident in connection with the status of the motor vehicle in question as an alleged stolen motor vehicle. You are not to consider evidence as to the taking and disposition of the tools for any other purpose."

Under prior decisions of this court the testimony relative to the theft of the tools was admissible. These cases include Woodland v. United States, 347 F.2d 956 (10th Cir.); Conford v. United States, 336 F.2d 285 (10th Cir.); Sanseverino v. United States, 321 F.2d 714 (10th Cir.); Hughes v. United States, 320 F.2d 459 (10th Cir.), and the prior series of cases cited therein. These cases state...