Thaggard v. United States
Decision Date | 28 March 1966 |
Docket Number | No. 22120.,22120. |
Parties | Thomas Lester THAGGARD, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.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.
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."
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 ( ).
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
The court then said further, in construing the word "trespass," ...
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