Robinson v. United States

• Decision Date: 16 June 1964
• Docket Number: 17455.,No. 17454,17454
• Citation: 333 F.2d 323
• Parties: Henry Lee ROBINSON, Appellant, v. UNITED STATES of America, Appellee. Ira WESTMORELAND, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

333 F.2d 323 (1964)

Henry Lee ROBINSON, Appellant, v. UNITED STATES of America, Appellee.

Ira WESTMORELAND, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17454, 17455.

United States Court of Appeals Eighth Circuit.

June 16, 1964.

James A. Bell, St. Louis, Mo., for appellants.

Richard D. FitzGibbon, Jr., U. S. Atty., Stephen H. Gilmore, and John A. Newton, Asst. U. S. Attys., St. Louis, Mo., for appellee.

Before VOGEL, MATTHES, and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

Appellants, charged with possession of dresses stolen from a freight shipment constituting a part of interstate commerce, knowing the same to have been stolen, in violation of Section 659, Title 18 U.S.C.A., were by jury verdict found guilty and each sentenced to "two (2) YEARS as to and under the charges contained in the Indictment."

But for the fact that the District Court granted appellants leave to appeal in forma pauperis from the sentences separately imposed; and a transcript of the trial proceedings, at Government expense, has been lodged with this Court, we would be warranted in dismissing these appeals for failure of retained counsel for appellants to make a modicum endeavor to effect compliance with Rule 11(b), (d), and (e) of this Court.¹ But, since we are constrained to notice "plain error" appearing on the face of the record, that cannot be done without miscarriage of justice ensuing. Rule 52(b), F.R.Cr.P. Cf. Black v. United States, 309 F.2d 331 (8 Cir. 1962), cert. den. 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765; Gendron v. United States, 295 F.2d 897 (8 Cir. 1961).

The indictment returned against appellants was in usual form. Appellants were properly put to trial thereon. We have carefully examined the transcript of evidence adduced at their trial. After doing so we can only conclude that sufficient circumstantial evidence was adduced to establish that a theft of dresses moving in interstate commerce as charged in the indictment was clearly established, and that both of these appellants were shortly thereafter found to be in "possession" of some of those dresses, with knowledge of the theft thereof; but the transcript of appellants' trial is such as to leave in substantial doubt the number of dresses found in their respective possession so as to establish a "value of more than $100.00."

All the evidence in the case at bar reveals as to possession is that appellant Robinson had two dresses of the kind and make of those established as having been stolen from the interstate shipment in question, which he reasonably knew had been stolen. While in possession thereof, Robinson asked one Strawbridge if he knew where he could sell those dresses. Strawbridge made arrangements for Robinson to contact one Ahmed, the operator of a cleaning establishment. They drove to Ahmed's shop in Strawbridge's automobile. Robinson and Strawbridge went into the shop. A reasonable inference to be made from the evidence is that appellant Westmoreland remained outside in the automobile, for after the meeting between Robinson and Ahmed at the latter's cleaning shop, Ahmed, Westmoreland, Strawbridge, and a person named Fields, then drove to Westmoreland's house in Strawbridge's car, where the evidence establishes "a number of dresses (were) on the bed in that house." Robinson at the time remained outside Westmoreland's house in his (Robinson's) automobile. Later that same day, Strawbridge, Westmoreland, Ahmed, and Fields returned to the parking lot behind Ahmed's cleaning shop in Strawbridge's automobile. Ahmed got out of the car and "took a number of dresses from Strawbridge's car and carried them into his store. He then returned and gave Westmoreland some money." Robinson apparently was not then present.

The most that can be gleaned from the evidence adduced before the jury is that appellant Robinson only had two dresses in his possession; and that an unstated number of dresses were in Westmoreland's possession. The testimony does not, with any degree of certainty, establish the number of dresses in either appellant's possession, so as to reasonably fix the value thereof at more than $100.00. Nor does it appear that Robinson was so positioned as to the dresses in Westmoreland's possession to sustain a finding that Robinson had any power of control thereover or to warrant a finding of possession thereof by him. Cf. Pearson v. United States, 192 F.2d 681 (6 Cir. 1951).

At the trial of the case at bar, only four (4) dresses were identified and introduced in evidence as being a part of the interstate shipment in question. The value of each such dress was established to be $10.00. The total value of the interstate shipment of dresses here considered was established to be $1,175.75, covering the value of 117 dresses.

The gist of the crime denounced by Section 659, Title 18 U.S. C.A., is the theft of property from interstate shipment; and having in one's possession stolen property, knowing the same to have been stolen. Lonergan v. United States, 287 F. 538 (8 Cir. 1923). Thus, two separate offenses are thereby denounced as crimes. Cf. United States v. Wilson, 284 F.2d 407 (4 Cir. 1960); Carroll v. United States, 174 F.2d 412 (6 Cir. 1949), cert. den. 338 U.S. 874, 70 S.Ct. 136, 94 L.Ed. 536; United States v. Dunbar, 149 F.2d 151 (7 Cir. 1945). It is manifest from the provisions of Section 659, supra, that the value of goods stolen from an interstate shipment is substantive to the degree...