United States v. Bean, 30331.

• Citation: 443 F.2d 17
• Decision Date: 26 May 1971
• Docket Number: No. 30331.,30331.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Claude Melvin BEAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

443 F.2d 17 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Claude Melvin BEAN, Defendant-Appellant.

No. 30331.

United States Court of Appeals, Fifth Circuit.

May 26, 1971.

Jimmy D. Ashley, J. Monty Bray, Houston, Tex., for defendant-appellant.

Seagal V. Wheatley, U. S. Atty., El Paso, Tex., Henry J. Novak, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before SKELTON^*, Judge, and MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Claude Melvin Bean was found guilty by a jury on two counts charging violations of 18 U.S.C.A. § 472 (1966), which proscribes uttering counterfeit obligations and was sentenced to concurrent 5-year terms on each count. The photographic identification procedures utilized in connection with one utterance were prejudicially erroneous and, lacking the consequent identification, the evidence was insufficient to show intent as to the other count.

On November 22, 1969, in San Antonio, Tezas, Bean entered a small drive-in grocery store at approximately 8:30 A. M. and purchased a package of cigars and a newspaper for 83 cents, for which he gave the clerk a counterfeit twenty-dollar bill. As Bean removed the bill from his wallet, the clerk noticed that the wallet contained bills of a denomination smaller than the twenty. After Bean had been given his change and had started out the door, the clerk noticed that the bill looked and felt funny. The clerk then went to the front door where he observed Bean getting into a car parked several spaces away from the front of the store despite the fact that all spaces in front of the store were vacant. Bean readily admitted making these purchases and paying for them with the counterfeit bill but denied knowing that it was bogus.

Several hours later, a 57 cent cigar purchase occurred in Austin, Texas at a similar convenience-type food store. Payment here was also made with a counterfeit twenty-dollar bill. It was established by Secret Service testimony that both the bill passed by Bean in San Antonio and the bill subsequently passed in Austin were of identical manufacture. The government contends that this second bill, like the first, was passed by Bean. Bean, however, while admitting to being in Austin as part of a family outing to the San Antonio zoo and the State Capitol, denies, without reservation, that he went into any such food store in Austin at any time.

At trial Mrs. Phyllis Cannon, a cashier at the Austin food store, testified that on the morning in question she had ample time to observe a man about five feet nine inches tall, who was heavily built and had dark hair, enter her store and utter the illicit paper, which she believed to be counterfeit. Mrs. Cannon further testified that some 19 days after she received the counterfeit bill, she was interviewed by a Secret Service agent. Over Bean's objection, Mrs. Cannon identified a picture of an individual who she thought gave her the bill. Without attempting to elicit an in-court identification, the trial court admitted what was purportedly a picture of Bean into evidence as being a photograph of the person who gave Mrs. Cannon the counterfeit bill.

On cross-examination, Mrs. Cannon admitted that her identification of a picture of the man, who gave her the bill, was only tentative when originally made. In fact, the Secret Service agent who then interviewed her also testified that Mrs. Cannon indicated that she would...