Rice v. United States

• Citation: 411 F.2d 485
• Decision Date: 11 June 1969
• Docket Number: No. 19363.,19363.
• Parties: Charles RICE, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

411 F.2d 485 (1969)

Charles RICE, Appellant, v. UNITED STATES of America, Appellee.

No. 19363.

United States Court of Appeals Eighth Circuit.

June 11, 1969.

Earle B. Leadlove, St. Louis, Mo., for appellant.

William C. Martin, Asst. U. S., Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., on the brief.

Before GIBSON, LAY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The defendant, Charles Rice, was convicted of violating § 659, Title 18, United States Code,¹ for stealing two suitcases from the Greyhound Lines, Incorporated, on January 9, 1968, while the suitcases were moving in interstate commerce. He was sentenced to one year in prison.

The defendant asks this Court to set aside his conviction on the grounds that the government failed to prove by competent evidence: (1) that the suitcases were moving in interstate commerce, see, Hall v. United States, 182 F.2d 833, 834 (8th Cir. 1950), and (2) that the suitcases had, in fact, been stolen. See, United States v. Padilla, 374 F.2d 782, 784 (2d Cir. 1967); D'Argento v. United States, 353 F.2d 327 (9th Cir. 1965), cert. denied, 384 U.S. 963, 86 S.Ct. 1591, 16 L. Ed.2d 675 (1966). He also claims a general insufficiency in the evidence.

We have reviewed the record carefully in the light of established standards,² and conclude that there was sufficient competent evidence in the record from which the jury could have concluded that the essential elements of the crime were established and that the defendant was guilty of violating § 659 with respect to at least one of the suitcases.³

Competent testimony established: that the defendant removed the suitcase from a baggage cart in the St. Louis Greyhound Terminal on January 9, 1968, without presenting a claim check; that the defendant tore a baggage strap tag off the suitcase and dropped it on the floor; and that the defendant was then arrested by a police officer who had observed the defendant entering the terminal taking the suitcase and walking toward the door with the suitcase in hand.

The government did not introduce the suitcase removed from the baggage cart in evidence or call its owner as a witness. It, nevertheless, competently established the identity of the suitcase taken by the defendant through Exhibit 1, a photo of the suitcase taken at the police station on the evening of the theft. The defendant's objection that the photo was not the best evidence was properly overruled by the trial court. The best evidence rule is applicable only to documentary evidence. United States v. Alexander, 326 F.2d 736, 739 (4th Cir. 1964); Meyers v. United States, 84 U.S.App.D.C. 101, 171 F.2d 800, 812 (1948), cert. denied, 336 U.S. 912, 69 S.Ct. 602, 93 L.Ed. 1076 (1949); 4 Wigmore, Evidence § 1181 (3rd ed. 1940).

The government competently established that the suitcase was moving in interstate commerce from Los Angeles, California, to Evansville, Indiana, through testimony of Dewey Owens, the manager of the Greyhound Terminal in St. Louis, Missouri, and through Exhibits 2 — a baggage strap tag, 2-A — a matching claim check showing that the suitcase was being transported by Greyhound from Los Angeles to Evansville.⁴ Each exhibit was identified by Owens. The government also established that the defendant was not entitled to possession of and had stolen the suitcase through the same exhibits and testimony.⁵

Owens testified that the luggage of each Greyhound passenger is checked before he boards a bus. A separate baggage tag is prepared for each bag. One portion of a numbered tag is attached to the bag and another portion of the tag — a claim check — with a matching number is given to the passenger. The claim check includes a statement that "this check must be surrendered in order to obtain baggage."⁶ Owens testified that this requirement was uniformly followed in St. Louis. The baggage strap tag and the claim check show the point of origin and destination of the bag. The tag indicated that the suitcase, to which the strap had been attached, had been checked at Los Angeles and was destined for Evansville. On cross-examination, Owens testified that he solicited the return of Exhibit 2-A, the claim check, from the terminal manager at Evansville. No other record of the transaction is made by Greyhound.

The exhibits constituted hearsay as they were offered to prove the truth of their contents, but a proper foundation was laid for their admission under the business record exception to the hearsay rule. See, Palmer v. Hoffman, 318 U.S. 109, 112, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Standard Oil Company of California v. Moore, 251 F.2d 188 (9th Cir.), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958). This is an exception sanctioned by statute.

Section 1732(a), Title 28, United States Code, provides in part:

"(a) In any court of the United States * * *, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any * * *, transaction, * * * shall be admissible as evidence of such * * *, transaction, * * *, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such * * *, transaction, * * * within a reasonable time thereafter.

"All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility."

The baggage strap tag and the claim check were writings, they were made as a memorandum of a transaction in the regular course of business, and it was in the regular course of Greyhound's business to make them. See, Doss v. United States, 355 F.2d 663 (8th Cir. 1966).

The defendant's contention that Exhibits 2 and 2-A should not have been admitted into evidence because Owens, who identified them, neither prepared them nor had them prepared under his supervision is without merit. Owens, as manager of the St. Louis Terminal, was thoroughly familiar with Greyhound's baggage procedure, and was responsible for baggage in the terminal. His testimony amply demonstrated that the strap tag and claim check were prepared pursuant to the established procedures on a form specifically devised for the purpose and used routinely by the company. Under such circumstances, it is unnecessary to require a Greyhound employee at the point of origin to testify with respect to the baggage documents. United States v. Olivo, 278 F.2d 415 (3rd Cir. 1960).

In Olivo, the defendant was convicted of possession of an air compressor stolen from the Spector Freight System, Inc., while it was moving in interstate commerce from Peoria, Illinois, to South River, New Jersey. The government sought to prove the interstate nature of the shipment by introducing a waybill, prepared by Spector employees at Peoria, through the manager of the Spector terminal at Newark, New Jersey. The Court held the waybill was properly admitted and stated:

"Specifically, appellant\'s objection is grounded upon the fact that the witness who testified concerning the waybill and its preparation did not actually prepare it himself nor did he directly supervise its preparation. Rather, Mr. Dillman, Spector\'s Newark terminal manager, testified to the company procedures concerning preparation of waybills in general and indicated that they were prepared at the point of origin within the Spector transportation system. Where Newark was the point of origin they were prepared under his supervision, but since this shipment had originated with another carrier it was waybilled by Spector when delivered to it at Peoria, Illinois. Extensive testimony was taken

...