United States v. Corso, 14507.

• Decision Date: 26 March 1971
• Docket Number: No. 14507.,14507.
• Citation: 439 F.2d 956
• Parties: UNITED STATES of America, Appellee, v. Edward A. CORSO, a/k/a Edward A. Manders, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

439 F.2d 956 (1971)

UNITED STATES of America, Appellee, v. Edward A. CORSO, a/k/a Edward A. Manders, Appellant.

No. 14507.

United States Court of Appeals, Fourth Circuit.

March 26, 1971.

Thomas J. Morris, Arlington, Va. (court-appointed counsel), for appellant.

Justin W. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before BOREMAN, WINTER and BUTZNER, Circuit Judges.

PER CURIAM:

By order of January 18, 1971, this court refused to consider defendant's direct appeal from his conviction below since defendant was then a fugitive from justice, having escaped by force from jail confinement. The order provided, however, that should defendant submit to the jurisdiction of the District Court for the Eastern District of Virginia on or before February 9, 1971, we would entertain his appeal. We have been advised by the office of the United States Attorney for the Eastern District of Virginia that on February 1, 1971, defendant voluntarily surrendered and is now in custody. Upon consideration of the merits of defendant's appeal, we reverse.

Defendant was convicted by a jury of entering a savings and loan association, a Federal Credit Union, with intent to commit larceny in violation of 18 U.S.C. § 2113(a) and (g). He was sentenced to a term of ten years.

On appeal, defendant relies primarily upon asserted errors by the trial court as follows: in denying defendant's motion for judgment of acquittal on the ground of insufficiency of the evidence and in charging the jury.

We first consider the challenge to the sufficiency of the evidence. This court delineated the standard of review of sufficiency of the evidence, upon direct appeal, in United States v. Sherman, 421 F.2d 198, 199 (4 Cir. 1970), as follows:

"In considering the sufficiency of the evidence we do not determine whether it convinces us of guilt beyond a reasonable doubt, but only that the evidence would permit the triers of fact to find the defendant guilty beyond a reasonable doubt. Citation omitted. The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support the findings of guilt."

The evidence against defendant was wholly circumstantial. Defendant's fingerprints were discovered on an empty cover of a book of safety matches which had been folded and used to jam a lock assembly on a door leading from an elevator lobby to a stairwell in the building wherein the Credit Union offices were located. Apparently the matchbook cover was so placed as to prevent the automatic locking of the door when closed. The Government produced the broken tip of a screwdriver which had been found at the base of a cabinet inside the Credit Union office and an expert testified that marks on the forced door where the matchbook cover was found were made by the broken tip. Another screwdriver was found at the scene of the burglary but there was no direct evidence as to ownership or possession of either screwdriver.

Three witnesses testified that defendant made credit purchases with cash down payments soon after the burglary had occurred. It was shown that defendant had at one time, more than a year prior to the burglary, worked laying tile in a building adjacent to the building where the crime occurred.

Defendant testified that he had no positive recollection as to where he had been on the date of the burglary; further, that he was with his brother during part of the weekend in question but neither he nor his brother could remember their precise activities during this time and for that reason he did not call his brother as a witness.

The Government contends that this accumulation of purely circumstantial evidence was sufficient to permit the jury to find the defendant guilty beyond a reasonable doubt. We cannot agree.

The most damaging evidence was the...