Tatum v. United States.

• Decision Date: 13 May 1952
• Docket Number: No. 1197.,1197.
• Citation: 88 A.2d 495
• Parties: TATUM v. UNITED STATES.
• Court: D.C. Court of Appeals

Page 495

88 A.2d 495

TATUM v. UNITED STATES.

No. 1197.

Municipal Court of Appeals for the District of Columbia.

Argued April 21, 1952.

Decided May 13, 1952.

C. Reginald Audrick, Washington, D. C., for appellant.

Edward O'Brien Fennell, Asst. U. S. Atty., Washington, D. C., with whom Charles M. Irelan, U. S. Atty., and Joseph

M. Howard and Paul F. Leonard, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

This is an appeal from a conviction of petit larceny. Appellant was sentenced to serve ninety days and at argument before us it was conceded that appellant had served his sentence. We accordingly raised the question whether the case was moot. In Hill v. United States, D.C.Mun.App., 75 A.2d 138, we followed the ruling in St. Pierre v. United States, 319 U.S. 41, 42, 63 S.Ct. 910, 911, 87 L.Ed. 1199, where it was said: "We are of opinion that the case is moot because, after petitioner's service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate." Appellant's counsel argued that the present case is not moot because as a result of this conviction appellant's parole on a former conviction had been revoked and appellant is now committed and serving time under the revocation of parole and, if the present conviction stands, must serve the balance of a three-year sentence. These facts do not appear of record but their correctness is conceded by the District Attorney who suggests that the present case is distinguishable from the St. Pierre case by the later case of Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 230, 91 L.Ed. 196.

In the Fiswick case appellant had served his sentence but the case was held not to be moot because appellant, an alien, was subject to deportation proceedings by reason of his conviction. The Supreme Court said that because the hazards of deportation were real, and because other disabilities or burdens might result to appellant if his conviction stood, that he had "a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him." In the case be fore us, if, as is conceded, appellant because of this conviction is being compelled to serve time on a previous conviction, we' think he too has a substantial stake and the case is not moot.

On the merits appellant's argument is directed to the identification or, as he says, lack of identification of the property alleged to have been stolen. The property, a clock, was left by complaining witness in her desk in the office of the corporation counsel in the District Building. When the desk was opened the clock was gone. Appellant was employed in the same building as a trash man, and a short time after the clock disappeared a parole officer found a similar clock in appellant's possession. When the clock was shown to complaining witness she was "quite positive" it was her clock. At the trial she testified that she had had the clock several months before it disappeared, that it was a Phinney-Walker traveling clock in a brownish leather case, and that the clock found in appellant's possession was "exactly like mine in every way." On cross-examination the witness said: "I cannot say it is definitely mine. All I can say is that I had a clock identical in every respect to this."

Appellant concedes that it is the rule in this jurisdiction that "possession of recently stolen property, unexplained, is sufficient to support a verdict of guilty in larceny,"¹ but...