Thaggard v. United States

Decision Date28 March 1966
Docket NumberNo. 22120.,22120.
PartiesThomas Lester THAGGARD, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Ira DeMent, Montgomery, Ala., Samuel A. Beatty, Prof. of Law, University, Ala., Whitesell, Alton & DeMent, Montgomery, Ala., for appellant.

Ben Hardeman, U. S. Atty., J. O. Sentell, Asst. U. S. Atty., Montgomery, Ala., for appellee.

Before TUTTLE, Chief Judge, and GEWIN and COLEMAN, Circuit Judges.

Certiorari Denied March 28, 1966. See 86 S.Ct. 1222.

TUTTLE, Chief Judge.

This is an appeal from a conviction and sentence for violation of the Federal bank robbery statute, 18 U.S.C.A. § 2113 (b).1

The facts which could be found by the jury in support of their verdict are substantially as follows:

On the morning of March 6, 1963, appellant received his February, 1963 bank statement from the Union Bank & Trust Company, showing a balance in excess of $43,000. He showed this statement to a friend, remarking, "You don't make this kind of money in used car business." It appears that the bank had received two deposits aggregating approximately $43,000 for the account of the Alabama Power Company and that, as the result of a bookkeeping mistake, this sum was erroneously credited to the account of Alabama Motors Company (owned by Thaggard). On the same morning, March 6th, Thaggard went to the statement teller of the bank and requested the amount of his balance in the Alabama Motors account. The teller obtained this balance from the bookkeeping department, wrote it down for Thaggard in the amount of $43,498.38, and handed him the piece of paper containing this information after again verifying the amount at his request. Shortly thereafter Thaggard asked a paying teller at the bank for the amount of the balance in the Alabama Motors account. This teller also called the bookkeeper, obtained the same balance, and handed appellant a piece of paper containing this information. Appellant then handed this same paying teller a check in the amount of $43,000 and said he wished to withdraw that amount. At the paying teller's request, appellant endorsed this check, whereupon the teller again called the bookkeeping department to determine whether there were any uncollected items against the account, thereafter paying the amount of the check to appellant. The paying teller assumed at the time of payment that the check was good and did not in any way misread the check, i. e., she intended to pay Thaggard the $43,000.

Around ten minutes after the payment to appellant, the true facts were discovered and appellant was finally located and taken to police headquarters on the night of March 6th, although he was not then under arrest. At this time appellant admitted that he had not made the $43,000 deposit, that he knew of no one who would have had any occasion to make such a deposit to his account and that the money did not belong to him. Subsequently, appellant was indicted under the Federal bank robbery statute and, after trial by jury in the district court, was found guilty. From this judgment Thaggard has taken this appeal.

The appeal here is based upon three principal contentions. The first is that in order to be guilty of violation of the Federal bank robbery statute, a case of common law larceny must be proved, whereas the principles underlying common law larceny were not presented to the jury in the charge of the trial court. The second is that if the Federal bank robbery statute is construed to comprehend something broader than common law larceny, then the conviction must be reversed because the trial court did not give the statute such broad construction, and the issue was, therefore, not properly presented to the jury. The third contention is that the trial court erred in giving the so-called "Allen" charge, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528, as putting improper pressure on the jury to bring in a verdict.

At the outset it will be noted that the Federal statute makes no mention of "larceny;" it is couched in terms of "steal and purloin," and this is what was charged in the indictment. Nevertheless appellant confidently bases his contention on the dictum in United States v. Rogers, (4 Cir.) 1961, 289 F.2d 433, where the Court said, at page 437, "We accept the defendant's premise that paragraph (b) of the bank robbery act reaches only the offense of larceny as that crime has been defined by the common law." With great deference to the views of the Court of Appeals for the Fourth Circuit, we cannot agree with this conclusion. We believe that as to this matter the Supreme Court's decision in United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430, leads to a contrary result. In Turley the Supreme Court had before it the interpretation of the National Motor Vehicle Act, commonly known as the Dyer Act, which provides, "Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000.00 or imprisoned not more than five years, or both." The indictment there before the court charged that Turley lawfully obtained possession of an automobile from its owner for the purpose of driving certain of his friends to the homes of the latter in South Carolina, but that, without permission of the owner, and with intent to steal the automobile, Turley converted it to his own use and unlawfully transported it in interstate commerce to Baltimore, Maryland, where he sold it without permission of the owner. As the Supreme Court said, "The information thus charged Turley with transporting the automobile in interstate commerce knowing it to have been obtained by embezzlement rather than by common-law larceny."

Dealing with the question of the meaning of this statute, the Court said,

"We recognize that where a federal criminal statute uses a commonlaw term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning citing as a footnote United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135; United States v. Smith, 1820, 5 Wheat. 153, 5 L.Ed. 57; United States v. Brandenberg, 3 Cir., 1944, 144 F.2d 656. But `stolen\' (or `stealing\') has no accepted common-law meaning. On this point the Court of Appeals for the Fourth Circuit recently said:
"`But while "stolen" is constantly identified with larceny, the term was never at common law equated or exclusively dedicated to larceny. "Steal" (originally "stale") at first denoted in general usage a taking through secrecy, as implied in "stealth," or through stratagem, according to the Oxford English Dictionary. Expanded through the years, it became the generic designation for dishonest acquisition, but it never lost its initial connotation. Nor in law is "steal" or "stolen" a word of art. Blackstone does not mention "steal" in defining larceny — "the felonious taking and carrying away of the personal goods of another" — or in expounding its several elements. IV Commentaries 229 et seq.\' Boone v. United States, 4 Cir., 1956, 235 F.2d 939, 940."

The Supreme Court ended its opinion by saying,

"`Stolen,\' as used in 18 U.S.C. § 2312 includes all felonious takings of motor vehicles with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes commonlaw larceny."

In this decision the Supreme Court expressly disapproved of this Court's prior decision in Murphy v. United States, 5 Cir., 206 F.2d 571 (an automobile obtained by false pretenses).

But, says the appellant, this case was tried to the jury on the theory of common law larceny. It is pointed out that the trial court used the word "larceny" several times in his charge to the jury. It is plain that the trial court did intend to apply the rule set down in United States v. Rogers, supra. The court charged "An essential element of the crime of larceny is the felonious taking; that is, the wilful, conscious, intentional, voluntary taking, the taking with an evil motive and with a bad purpose and with a criminal intent; taking away the personal property of another. In addition, the law says in a prosecution under this statute the taking must be by a trespassing; that means it must be an invasion of the owner's right of possession in the property concerned, money in this case. However, the law says that when the owner that transfers the property acts under a unilateral mistake, that is, a mistake only on his part, that is a mistake of fact, and intends only to relinquish title to the lawful owner, the delivery of the money to the person inducing the mistake, if you find that to be the case in this particular instance, may be ineffective to transfer ownership of the property. Now if the receiver of the property feloniously — as I have defined that term to you — induces the mistake that results in the delivery of the property to him, and receives the money with a felonious intention of appropriating it to his own use, and does so appropriate it, then the receipt and removal of the money may be larceny within the meaning of the statute under which this indictment is laid, and under which this defendant, T. L. Thaggard, is being prosecuted."

The court then said further, in construing the word "trespass," "In this type of larceny prosecution, by the term, `by trespass' as I have used it and as the law defines it, means the taking of the property, money here, without the owner's consent. The intention of the owner not to part with title to the money when relinquishing possession of it to the defendant or the receiver, Thaggard in this case, is the essence of the offense of larceny, insofar as this prosecution is concerned. Now the correct distinction in cases of this kind seems to be, under the law, that if by means of any trick or fraud the owner of the property, the bank, the...

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