Self v. United States

• Decision Date: 06 November 1957
• Docket Number: No. 16476.,16476.
• Citation: Self v. United States, 249 F.2d 32 (5th Cir. 1957)
• Parties: John Henry SELF v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Fifth Circuit

249 F.2d 32 (1957)

John Henry SELF v. UNITED STATES of America.

No. 16476.

United States Court of Appeals Fifth Circuit.

November 6, 1957.

Comer W. Padrick, Jr., Atlanta, Ga., for appellant.

James W. Dorsey, U. S. Atty., J. Robert Sparks, John W. Stokes, Jr., Asst. U. S. Attys., Atlanta, Ga., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

Appellant, John Henry Self, tried alone upon his motion for severance, was found guilty and sentenced on an indictment in three counts charging him and Calvin Roy Orr of robbery of an insured bank in violation of 18 U.S.C.A. § 2113(a) and (d). The only error he argues for reversal is that the court below admitted, over his objection, testimony concerning money found in the possession of Orr when he was arrested the day after the Farmers Bank of Locust Grove, Georgia was robbed of the sum of $4,140.00. Appellant epitomizes his argument thus:

"In order that evidence with regard to money found in the possession of a principal or an accomplice charged with robbery, the subject of which is money, may become admissible against either party, where the money is not identifiable as that taken in the robbery, the impecuniosity of the possessor prior to the robbery must be shown."

It is not argued that the evidence fails to show that appellant and Orr collaborated in robbing the bank, or that the acts and declarations of Orr in connection with the joint enterprise are inadmissible against appellant. The facts will be discussed in detail, therefore, only as they relate to the narrow point relied upon for reversal.¹

Appellant was arrested in New Jersey three days after the robbery while driving a Cadillac car, his wife and daughter accompanying him. The car was searched with appellant's consent, and $1,860.00 was found in two suitcases claimed by the wife and daughter. A total of $153.00 was found in the wallets of the three, and $140.00 was found secreted in an air vent of the Cadillac. Appellant, taking the witness stand, explained the presence of this money by stating that he was "pick-up man" for bookies who operated in connection with horse racing. Two five dollar bills found in one of the suitcases were identified as having been shipped by the Federal Reserve Bank in Atlanta to the robbed bank prior to the robbery.

When Orr was arrested and a search made, $236.00 in currency was found under his mattress, $200.00 in his shirt pocket; and $48.00 in coins, rolled in wrappers such as were used by the bank, was found in his home along with the $436.00 in currency. On the night of the robbery, Orr displayed to witnesses a big roll of money and a "stack of money a foot high." From evidence of employees of the bank the jury was justified in finding that the $48.00 in rolled coins was the money described by the bank employees as having been taken from the bank by the robbers. In Orr's home was found a mask and silk stocking resembling the one used by one of the robbers, and a baby blanket, thrown out of a taxicab by Orr, was identified as one habitually used by appellant as a bed for his dog which was accustomed to ride in his Cadillac car.

Appellant seeks reversal upon the argument that the possession by Orr of the large sums of money had no probative value, and that evidence of it was inadmissible without a showing that Orr did not have the large sums of money prior to the robbery. In other words, appellant argues that affluence after the robbery cannot be proven without first showing impecuniosity prior to the robbery.

A simple answer to this contention is that appellant did not object to the reception of this evidence on the ground that the predicate of Orr's impecuniosity had not been laid. If objection on that ground had been made, it is likely that the Government would have established the predicate by proof inasmuch as it did introduce proof of appellant's impecuniosity before the robbery. We cannot adjudge error in the ruling of the trial court in the reception of evidence where the ground of the objection urged upon us was not asserted at the trial. Matthews v. United States, 5 Cir., 1954, 217 F.2d 409, 50 A.L.R.2d 1187; and Giordenello v. United States, 5 Cir., 1957, 241 F.2d 575.

It is evident, also, that appellant misconceives the rule sometimes applied to reject evidence of possession of money after the commission of a crime without showing destitute circumstances of the party prior to the crime. The authorities cited do not tend to establish the rule as one of general or inflexible application.² The most that can be said of it is that proof of the unexplained possession of unusual amounts of money after a robbery, standing alone, is not competent evidence to connect the possessor with the robbery; but it becomes competent provided it is further shown that he was impecunious prior thereto.

The money possessed by...