Stoneking v. United States

• Decision Date: 28 May 1956
• Docket Number: No. 15417.,15417.
• Citation: 232 F.2d 385
• Parties: George Dewey STONEKING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

232 F.2d 385 (1956)

George Dewey STONEKING, Appellant, v. UNITED STATES of America, Appellee.

No. 15417.

United States Court of Appeals Eighth Circuit.

April 24, 1956.

Rehearing Denied May 28, 1956.

Daniel J. Leary, Joplin, Mo., for appellant.

Kenneth C. West, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., was with him on the brief), for appellee.

Before STONE, JOHNSEN and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

George Dewey Stoneking (appellant herein) and Paul Courtright and Earl Milton Vaughan were jointly indicted for bank robbery and conspiracy. Count No. 1 of the indictment charged that the three defendants on February 18, 1955, robbed the Citizens Bank of Carl Junction, Carl Junction, Missouri, the deposits of which were insured by the Federal Deposit Insurance Corporation, using force, violence and intimidation, and by putting in jeopardy the lives of bank employees through the use of a dangerous weapon, a .22 caliber pistol, and taking money from the bank, all in violation of Section 2113, Title 18 U.S.C.A.

Count No. 2 charged that between February 1, 1955, and February 18, 1955, the three defendants entered into a conspiracy to rob the bank, 18 U.S.C.A. § 371. Count No. 2 set forth five overt acts as implementations of the conspiracy.

Defendants Courtright and Vaughan entered pleas of guilty to the indictment. Stoneking entered a plea of not guilty, was tried before a jury and convicted. Courtright and Vaughan both testified in behalf of the prosecution at Stoneking's trial. Stoneking appeals to this court.

Viewed in the light most favorable to sustaining the verdict of the jury, Canton v. United States, 8 Cir., 1955, 226 F.2d 313, certiorari denied 350 U.S. 965, 76 S.Ct. 433; Christianson v. United States, 8 Cir., 1955, 226 F.2d 646, certiorari denied 76 S.Ct. 543, the evidence disclosed the following:

Stoneking, Courtright and Vaughan had known each other for many years. Some time in February, 1955, the three of them entered into a conspiracy to rob the Citizens Bank of Carl Junction, Missouri. On the morning of February 18, 1955, (a spur of the moment choice for the robbery) Courtright and Vaughan drove into Webb City, Missouri, where Vaughan was dropped off at a bar. Courtright, using Vaughan's car, went to Stoneking's home and asked him if he was ready to rob the bank. Stoneking said he would be in a few minutes. Courtright then drove to Vaughan's home and obtained a pistol which had been given to him by Stoneking the Sunday previous for use in the robbery, coveralls and a cap. He then returned to Stoneking's house. Shortly thereafter Vaughan picked up Courtright at the bar and met Stoneking in the latter's car near the Webb City Library. Vaughan drove his car with Courtright as a passenger to a point on a gravel road two miles east of Carl Junction, where Courtright entered Stoneking's car and Vaughan's car was turned around. Stoneking drove Courtright to Carl Junction. En route, near the home of one Doris Moss, he stopped, went to the rear of the car and threw some mud over the license plate. The witness, however, did not actually identify Stoneking as the man who threw the mud.

Stoneking then drove Courtright around the block on which the bank was located and parked the car near the bank. Courtright walked into the bank carrying a loaded gun, executed the robbery, the details of which are unnecessary here, came out and got in Stoneking's car, which Stoneking drove east on Highway 57, and thence on to a gravel road where Courtright changed to Vaughan's car, Vaughan having been waiting for them. Courtright and Vaughan drove north on Highway 43, ultimately going to Vaughan's house, where they hid the money under a back porch. Vaughan and Courtright were arrested as they were leaving the house shortly afterward.

The two cars used by the defendants in the robbery and get-away were a light green Ford operated by Stoneking and Vaughan's blue Ford, to which Courtright had transferred after the robbery at the point on the gravel road east of Carl Junction, where Vaughan awaited them. Both cars, first Stoneking's car and then Vaughan's blue car, were followed by witnesses, who subsequently testified that the Stoneking car turned south at the intersection and the Vaughan car north.

Reuben Stone, one such witness, testified to following the cars to the intersection where the one car turned north and the other south. He testified:

"At that point from a distance of 18 to 20 feet I looked right in the eye of the man in the light green car. I identify the man as the defendant Stoneking in the courtroom."

On cross examination, Mr. Stone testified:

"When the fellow in the old car turned his head around at the intersection of 43 I saw him for a very short time, just a matter of seconds, I would say three seconds. At the preliminary hearing in the Magistrate Court of Jasper County before Judge Ray England I testified that the man turned his face `for a fraction of a second.\' I now recognize the discrepancy in my testimony. I saw the green car at the Webb City Jail on the night of February 18. I remember Mr. Stoneking being present at the preliminary hearing on March 2, 1955."

The Reverend Mr. Keith Bottles was another witness to the identity of the defendant Stoneking. He testified to having followed the Stoneking car and catching up with it traveling at speeds of 80 miles an hour or more. He stated:

"The green car stopped across the street from the front of the library in Webb City, and the man who got out of the green Ford at the library I identify in the court room. The man entered the library and stood outside the doors watching me, then the man went inside the library and I drove to the main part of Webb City and then back to the library, where I saw the green car still parked, and obtained the complete license number, H-33013. Mud had been smeared over the `H\' in the license plate. I had obtained the other digits of the license plates as I chased it across the country. The man left the library and I now know the man to be Dewey Stoneking, got into his Ford and went south, then west with me still following him. * * *"

On cross examination, Bottles testified:

"At the intersection of Highway 43 I could not identify Stoneking, but I could identify Vaughan and Courtright, who were three cars ahead of me at that time. At that time it was misting. Courtright and Vaughan were within four or five car lengths ahead of me and as they turned north I could see both of them and identified them. I do not know from whence came the car that got between me and the light green car on the T. B. Hospital road. The green car was always in my vision until we reached the library. I did 80 miles an hour passing the car in front of me."

Richard W. Flack, a Special Agent of the F.B.I. Laboratory in Washington, D. C., testified regarding a scientific analysis and comparison of dirt or soil on the license plate of the Stoneking car and that taken from soil samples near where the car had stopped and someone was observed to have thrown mud on the license plate. Evidence was also introduced whereby the pistol used in the robbery of the bank was traced to the defendant Stoneking.

The appellant's first charge of error deals with the court's instructions to the jury. The more serious is concerned with the court's comments with reference to the witnesses Reuben Stone and the Rev. Mr. Bottles. As to the witness Reuben Stone, the court stated:

"You heard the witness Reuben Stone, who said that at the intersection of Highway 43 and this gravel road, as the defendant Stoneking looked around over his shoulder — some dispute about whether it was for one, two or three seconds; to my mind that is of no consequence at all — you can determine whether it is or not; I would say, no — he said, `I looked him right in the eye and that is him.\' If you believe that testimony is true, then the defendant Stoneking is guilty on the First Count.

"Now, then, who else? The Reverend Bottles says that he identifies, he recognizes and points out the defendant Stoneking as the driver of the Ford, as he followed the Ford. Now, if you find and believe that testimony is true, then, again, you would find the defendant Stoneking guilty."

Appellant argues that the court's statement was, in effect, a direction to find the defendant guilty solely upon the testimony of the witness Stone that he saw and identified him at the intersection of Highway 43 or upon the identification of the witness Bottles and that it ignores the defendant's testimony regarding an alibi. It should be noted, however, that immediately after instructing the jury as above, the court stated:

"Of course, on each of these Counts you have to find, however, that he was a principal; that he `aided, counseled, abetted or induced\' the commission of the holdup of the Bank of Carl Junction.

"Is he otherwise identified? You may remember the testimony, of course, of Courtright and of Vaughan. They have pleaded guilty here, but they are witnesses in the case. They have told you in detail all of what happened and that Mr. Stoneking was a member of the group, and what his part in it was.

"The credibility of all of these witnesses, whether you believe them or not, is for you. If you believe them and believe that Stoneking — we are talking about the First Count now — did aid, counsel and abet with Courtright and/or Vaughan to go out to the Bank of Carl Junction to hold it up, and that in furtherance thereof drove his automobile out there, and from this point two and a half miles east of Carl Junction took Courtright with him, and that they did go into Carl Junction for the purpose of having Courtright go into the Bank and get the money out of the Bank by the use of firearms — and he did so — and that Stoneking was waiting for him, and when Courtright came out and got in the Stoneking automobile they headed on back toward the east with the

...