Thurmond v. United States

• Decision Date: 22 May 1967
• Docket Number: No. 23569.,23569.
• Citation: 377 F.2d 448
• Parties: Raymond Glenn THURMOND, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

377 F.2d 448 (1967)

Raymond Glenn THURMOND, Appellant, v. UNITED STATES of America, Appellee.

No. 23569.

United States Court of Appeals Fifth Circuit.

May 22, 1967.

Edward E. DeWees, Jr., Bruce Robertson, Jr., San Antonio, Tex., for appellant.

Andrew L. Jefferson, Jr., Asst.U.S. Atty., Ernest Morgan, U.S.Atty., Western Dist. of Texas, San Antonio, Tex., for appellee.

Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges.

GEWIN, Circuit Judge:

The appellant, Raymond Glenn Thurmond, was tried and convicted by a jury of the theft of an automobile valued in excess of one hundred dollars from Lackland Air Base in violation of 18 U.S.C. § 661 (1964).¹ He was sentenced by the United States District Court for the Western District of Texas to imprisonment for a maximum of four and one-half years. He appeals from the conviction and sentence.² We affirm.

On November 18, 1964, one Lt. Scott S. Stoddard reported to the Air Police at Lackland Air Base, San Antonio, Texas, that his 1964 turquoise and white Ford Galaxy two-door sedan had been taken without his permission from the parking lot of Wilford Hall Hospital which was located on the Air Base. The car had been parked on the lot while Lt. Stoddard was temporarily assigned to the hospital for medical reasons. The car had been last seen in the lot on November 17th when a friend of Lt. Stoddard removed some personal belongings from the trunk and returned the keys to Lt. Stoddard. Subsequently, on November 23, 1964, a Mrs. Marilyn Cress was stopped for speeding in Houston, Texas, while driving Lt. Stoddard's car. She informed the arresting officer that she had borrowed the car from the appellant to run an errand for her employer and that the appellant was at the Blue Mirror Lounge just outside the Houston city limits in Harris County. The appellant was arrested at the lounge by two members of the Harris County Sheriff's office, and the car was impounded. Shortly thereafter a search of the vehicle disclosed that a loose ignition switch was located in the glove compartment. The following day Lt. Stoddard came to Houston and identified the car. It still had the original license plates on it, and his ignition key fit the door, although it did not fit the ignition switch.

The appellant argues on appeal that the evidence was insufficient to support the verdict and that certain portions of the district court's charge to the jury were erroneous and prejudicial to his defense. The government takes issue with both assertions claiming that the evidence amply supports the verdict and that the charge when read as a whole was correct and did not prejudice the appellant.

The evidence adduced at trial was mostly circumstantial. Indeed, even possession of the stolen vehicle was established through the testimony of Mrs. Cress who was in actual possession of the car. Nevertheless, the record clearly reveals that the evidence against the appellant was substantial and that it tended to prove every element of the crime. As such, the case was properly submitted to the jury. If believed by the jury, Lt. Stoddard's testimony indicated that his car was valued at more than a hundred dollars, and that it had been taken from the parking lot at Lackland and driven to Houston without his permission. The car driven by Mrs. Cress in Houston fit the general description of Lt. Stoddard's car and it bore the same license plates. Although Lt. Stoddard's key fit only the doors, the loose ignition switch in the glove compartment together with the scratches on the dashboard around the area of the ignition clearly tended to establish that the switch had been changed. Further, Mrs. Cress testified that she had borrowed the car from the appellant, that he pointed the car out to her, and that he claimed to own it. The keys delivered to her by the appellant fit the ignition switch but did not fit the locks on the doors. In addition, it was on the basis of her description of the appellant that he was arrested. Her identification of him was positive. While much of the government's case depends on the testimony of Mrs. Cress, credibility determinations are to be made by the jury and not the appellate courts. Viewed in the manner most favorable to the government, this evidence alone would appear to be sufficient to support the conviction. But there was further corroborative evidence, which need not be detailed here, tending to establish the appellant's guilt.

Although circumstantial evidence is to be scrutinized with the utmost care, when properly evaluated it is as reliable and trustworthy as a means of proving guilt as direct evidence. Inferences properly drawn from circumstantial evidence may establish the commission of a crime, and under proper instruction a jury may convict on the basis of such inferences. See 3 Wharton, Criminal Evidence, § 980, p. 472 et seq. (1955). Of course, the jury must conclude on the basis of the evidence, be it circumstantial or direct, that guilt has been established beyond a reasonable doubt. Once the jury has so concluded, however, the function of a reviewing court is extremely limited. In this Circuit it is well established that in a circumstantial evidence case, an appellate court is to affirm a conviction challenged on the basis of the insufficiency of the evidence only if this Court can conclude that a jury could reasonably find that the evidence excluded every reasonable hypothesis except that of guilt. Riggs v. United States, 280 F.2d 949 (5 Cir. 1960); Panci v. United States, 256 F.2d 308 (5 Cir. 1958). After a careful review of the record, we are left with the firm conviction that a jury could so find. We therefore hold that the appellant's first contention is without merit.

The appellant next asserts that the district court improperly commented on the weight of the evidence when it charged the jury that it might infer guilt from the appellant's unexplained possession of the stolen vehicle shortly after it was stolen. The appellant argues that this amounted to a statement that the appellant was guilty as charged. We can not agree. It is well...