Sewell v. United States

• Decision Date: 24 February 1969
• Docket Number: No. 19284.,19284.
• Citation: 406 F.2d 1289
• Parties: Jimmy Floyd SEWELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

406 F.2d 1289 (1969)

Jimmy Floyd SEWELL, Appellant, v. UNITED STATES of America, Appellee.

No. 19284.

United States Court of Appeals Eighth Circuit.

February 24, 1969.

COPYRIGHT MATERIAL OMITTED

Henry J. Osterloh, Little Rock, Ark., for appellant.

Robert F. Fussell, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. Dillahunty, U. S. Atty., with him on the brief.

Before GIBSON and LAY, Circuit Judges and HARPER, Chief District Judge.

FLOYD R. GIBSON, Circuit Judge.

Jimmy Floyd Sewell was jointly indicted but separately tried and convicted by a jury of a violation of the Dyer Act, 18 U.S.C. § 2312. Sewell's companions in the offense pleaded guilty to the identical charge, were sentenced, and testified at Sewell's trial.

On appeal Sewell contends: (1) his arrest was invalid because the arresting officer lacked probable cause to make the arrest, and (2) the instructions given by the District Court on aiding and abetting in the commission of a crime, and on possession and, in particular possession of recently stolen property, were erroneous and amounted to reversible error.

Defendant Sewell and his co-indictees, Nancy LaForme and Elmer Cockrill, in early January 1968 while in Houston, Texas, discussed among themselves and with John Henry Dixon and a person named Richard the fact that they all needed jobs. Sewell volunteered that if they could find a way to get to West Virginia they could all obtain work at a certain company. Cockrill offered the use of a credit card if they could procure a car. Cockrill and Richard then left the group and stole a 1967 black Pontiac GTO. After stealing the car, Cockrill and Richard picked up Dixon and LaForme and then went around the block to pick up Sewell. Cockrill testified that Sewell was unaware the car was stolen and that he told Sewell the car belonged to his brother who was in the army. Richard at that point was driving the car and after driving it to his home in Houston, Texas, Richard informed the group that he had changed his mind and was not going to West Virginia. Cockrill then drove the group in the car to Corrigan, Texas, where they spent the night at Cockrill's grandparents' home.

The group left Cockrill's grandparents' home early the next morning. After stopping for gas in Corrigan, Sewell started driving and drove until they stopped at another filling station. Dixon then told Sewell that they needed to change license plates because the service station attendant was writing the license number down when they used the credit card. Cockrill started driving again and as they approached the town of Nacogdoches, Texas, Dixon was let out of the car for the purpose of stealing some other license plates. This he did, while the others cruised around the block. After proceeding down the freeway some distance they drove off on to a side road where Sewell, according to the testimony of Dixon and LaForme, put one of the license plates on the front of the car and Cockrill and Dixon put the other license plate on the back. Cockrill testified that Sewell did not participate in attaching the license plates.

The group then proceeded to Texarkana, Texas, where they sold a spare tire to a service attendant for $10. That evening as they were passing through Forrest City, Arkansas, it was snowing and the road was icy. Cockrill, who was driving at this time, started to pass a truck, lost control and slid into a ditch. The group then caught a ride to a DX service station, where they had difficulty securing a wrecker because they could not produce identification. After some stalling, one of the attendants and Cockrill left the service station for the scene of the accident, which was about 15 miles east of Forrest City. Shortly after they arrived at the scene, a state trooper stopped by, checked the motor identification number on the car and accompanied them back to the DX service station. The state trooper then asked Sewell, LaForme, Cockrill and Dixon to whom the car belonged. Sewell stated he did not know; the others apparently failed to reply and the state trooper placed all of them under arrest. Sewell did not testify at the trial.

Defendant's first contention is that his arrest was made without probable cause and, therefore, the indictment against him should be dismissed. This contention was first asserted by the defendant in the midst of the trial, when the state trooper was testifying to the circumstances of the arrest. The motion was overruled without discussion or comment.

Sewell's first contention fails for two reasons. (1) In Arkansas an arrest may be made if the officer has reasonable grounds to believe that the person arrested has committed a felony. Ark.Stat.Ann., Title 43, Chapter 4, Sec. 43-403 (1947). Sewell and the others in the group were unable to provide identification for themselves or for the wrecked vehicle. The state trooper who had been assigned to investigate a case near Blackfish, Arkansas, pertaining to a 1967 Pontiac car, proceeded to the scene of the accident and checked the motor number of the vehicle, indicating he had reason to believe the car might be stolen. Then after proceeding to the DX filling station and failing to obtain any information from the occupants of the car as to whom the car belonged, the state trooper certainly had probable cause to believe that the car was stolen.

(2). The objection to the arrest was not timely made and any objection defendant Sewell might have had to the jurisdiction of the Court over his person was waived. Under Rule 12(b) (2), Fed.R.Crim.P., a motion challenging the validity of the indictment must be made before trial.¹ This rule serves the salutary purpose of preventing unnecessary trials and deterring the interruption of a trial on the merits for any objection relating to the institution and presentation of the charge.

Rule 12 does state: "Lack of jurisdiction * * * shall be noticed by the court at any time * * *." This refers, however, to lack of jurisdiction over the subject matter and not the person. Pon v. United States, 168 F.2d 373, 374 (1 Cir. 1948).

This precise issue has also been decided in this Circuit, adversely to the defendant's contention, by Bistram v. United States, 253 F.2d 610 (8 Cir. 1958). Judge Matthes, after pointing out the requirements of Rule 12(b) (2), Fed.R.Crim.P. for raising defenses and objections based upon defects in the institution of the prosecution or in the indictment by motion before trial, cited with approval Pon and then added at 612 of 253 F.2d:

"For an equally cogent reason, appellant\'s contention must be disallowed. It has long been a firmly entrenched principle of federal jurisprudence that if the accused is personally before a court having jurisdiction of the subject matter, that court has jurisdiction over the accused regardless of how he was brought into the presence of the Court." (Numerous citations omitted).

and then cited a quotation from Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952) holding:

"`This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court\'s jurisdiction by reason of a "forcible abduction." No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.\'"

Accord, Evans v. United States, 325 F.2d 596 (8 Cir. 1963), cert. denied 382 U.S. 881, 86 S.Ct. 170, 15 L.Ed.2d 121.²

The trial court gave the usual instructions (Nos. 8.06 and 8.07) on aiding and abetting others in a commission of a crime as set forth in Mathes & Devitt, Federal Jury Practice and Instructions, pp. 90-92 (1965). These instructions have been approved many times. See cases listed, ibid. Contrary to defendant's contention these instructions do not require a lesser quantum of proof than is ordinarily required in a Dyer Act case.

Also, defendant's contention that the use of Instruction 8.06 relating to aiding and abetting and captioned "Multiple Defendants" was improper because only one defendant was being tried, is misconceived. The instruction given did relate to the facts of the case and the heading of the instruction objected to by the defendant, "Multiple Defendants", was not even read to the jury in the Court's charge.

The defendant also attacks the Court's general instruction on possession and control of the stolen vehicle. On this point the trial court correctly stated the law.³

Defendant's next objection relates to the instruction on possession of recently stolen property and the inference that may be drawn from...