United States v. Crane, 30229.

• Citation: 445 F.2d 509
• Decision Date: 06 August 1971
• Docket Number: No. 30229.,30229.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Louis CRANE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

445 F.2d 509 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. John Louis CRANE, Defendant-Appellant.

No. 30229.

United States Court of Appeals, Fifth Circuit.

June 4, 1971.

Rehearing Denied August 6, 1971.

Frank M. Gleason, Ross L. Hatcher, Rossville, Ga., Joseph E. Loggins, Summerville, Ga., for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., J. Owen Forrester, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before RIVES, GOLDBERG and MORGAN, Circuit Judges.

RIVES, Circuit Judge:

The jury found Crane guilty of burglary¹ and larceny² from the Post Office at Flintstone, Georgia, and the judge sentenced him to imprisonment for two years under the provisions of 18 U.S.C. § 4208(A)(2).³ On appeal he contends that the district court erred: (1) in denying his motion for new trial either (a) because the Government suppressed evidence of Dr. Sheldon Wohl or (b) because of newly discovered evidence set forth in the affidavit of Dr. Wohl; (2) in denying his motion to suppress evidence obtained by an alleged illegal search of his garage business; (3) in denying his motion of a mistrial because of improper argument of the Assistant United States Attorney; (4) in denying his motion for a judgment of acquittal. We find no reversible error and therefore affirm. An understanding of the reasons for our decision requires a detailed discussion of the evidence.

Jointly indicted with Crane were three codefendants, Brown, Murphy and Seitz. Brown and Murphy had pleaded guilty and were serving their sentences.⁴ Seitz had confessed but had not been tried.⁵ The crime was committed in the extreme northern part of Georgia close to the Tennessee line and near Chattanooga. At approximately 5:00 A.M. on September 21, 1969, Captain John Holt of the Sheriff's Department, Hamilton County, Chattanooga, Tennessee, received a telephone call from an unnamed person who asked to speak to Robert E. Cornish, Chief of Detectives. On being advised that Cornish was at his home, the caller left a telephone number.

Cornish promptly returned the call. The informant told him that the Flintstone Post Office had been burglarized, and named three individuals as the burglars, one of whom was Seitz, already well known to Cornish.⁶ Cornish then called back to Captain Holt, asked him to check the Flintstone Post Office as to whether it had actually been burglarized, and to send Detective Nelson to the Rossville, Georgia, area where Cornish would meet him.

Captain Holt found the doors of the Post Office open and signs of the safe having been dragged across the floor to a dirt and gravel driveway which bore heavy tire marks. He advised Chief Cornish on the patrol radio.

Meanwhile Cornish had proceeded from his home in Tennessee to Rossville, Georgia. As he drove onto Chickamauga Avenue, he saw a 1963 Plymouth which he knew to be operated by Seitz. He could not then identify the other occupant of the car but later did identify him as Brown. Cornish being afraid to follow the car too closely, it was lost from his view. Shortly thereafter he again saw the car, then following a truck. He followed both the car and the truck. They drove directly to a garage which was later identified as Crane's Garage. The truck turned into one of the bays of the garage. Seitz and Brown parked the Plymouth car, and entered the garage at the same time as the truck. The bay door was then closed.

In the garage door were three horizontally spaced small windows. After parking his car, Cornish walked across to the edge of the garage and looked into the garage through one of the windows. Continuing, Cornish testified:

"Q. All right, did you see anything inside?

"A. Yes, sir. There was the truck in the first bay. They had the doors of the truck open. There was a heavy-set man with bushy hair who was pushing a group of tanks up they normally use for cutting torches and things.

"Q. You mentioned Seitz. Do you know a man named Tommy Seitz?

"A. I do.

"Q. Did you know him previous to this time?

"A. Well; yes, sir.

"Q. Was that man pushing that torch Mr. Seitz?

"A. No; it wasn\'t, sir. Mr. Seitz has short hair, and this man had quite a bit of hair.

"Q. Do you know where any of the other people in the garage were?

"A. Yes, sir. I could see over on the back side of the garage hear another person getting some — rummaging around in some tools or something there, and at that time I didn\'t know who he was, but I could later identify him as Murphy.

"Q. All right. Well, do you know Mr. Brown?

"A. I do now. I didn\'t at that time. I knew of him. I knew what he looked like, but I did not know a lot about him.

"Q. Was it light or dark in the garage?

"A. Oh, there was no lights on in the garage. There was — the lights were shining, you could see shadows and see people moving around. I doubt very seriously — there wasn\'t a lot of light, but I could see these individuals easily enough.

* * * * * *

"Q. Have you subsequently come to know Mr. Brown?

"A. Yes; I have.

* * * * * *

"Q. All right, state whether or not the man dragging that oxygen tank was Mr. Brown.

* * * * * *

"A. (By the Witness) The man was a much larger man than Mr. Brown."⁷ (Tr. pp. 44, 45, 46.)

About that time Detective Nelson arrived and took a position to see that no one escaped from the garage building. About the same time, Cornish received over his car radio the report from Captain Holt that, on checking, he found Flintstone Post Office had been burglarized. Cornish then called for the Rossville police and within minutes some of their officers arrived. In quick succession, a magistrate was summoned to the scene, and a telephone call to Crane's home brought his two sons, one 18 and the other 19 years old, with a key to the garage. Before the key was used to enter the garage, "quite a crowd of people" had gathered. Cornish testified that the entry was "after a search warrant had been issued." (Tr. 48) Similarly, Captain Holt testified, "After they got the search warrant I went inside the building." (Tr. 35) Cornish signed the affidavit for the warrant. (Tr. 91) Crane's younger son testified that Officer Griffin gave the search warrant to his brother. (Tr. 342) The search warrant was not introduced in evidence. On objection by Crane's counsel that, "if he had a search warrant, we say it would be the highest and best evidence" (Tr. 49), the district court ruled: "The fact he may have made an entry into a building without a search warrant would not, in and of itself, be inadmissible. If I see any authority you can cite to the contrary I will be glad to change my ruling and instruct the jury likewise." (Tr. 50-51)

Seitz and Brown were found inside the truck with the unopened post office safe.⁸ Officer Griffin found Crane in the garage bathroom sitting on the commode with its lid closed and bearing some lacerations on his head. Last of all, Murphy was found lying on the floor in a screened in area "where there was a lot of stored tires and what-have-you." (Tr. 52, 53)

I.

Crane's conviction or acquittal might well turn on the evidence of his physical and mental condition at the time of and shortly after he was discovered in the garage toilet. That is made clear by the evidence on the trial and the affidavits on the motion and amended motion for new trial. Seitz testified that he went with Murphy to Crane's garage for a repair to be made on a car which Murphy had bought from Crane, that Crane "knew we were thieves" (Tr. 139), that

"While we were there getting the dimmer switch put on, John Crane was talking to us about the Flintstone Post Office and the house across the street from it being empty.

* * * * * *

"And he said that now would be the time to get the safe in it, and he took a piece of paper and wrote down his phone number on it and said, `Call me when you get it,\' and walked in the office and got the key to the big truck out of the cash register and gave us the key to this big GMC, V-6, Cab-over-engine truck with a lift tailgate and all on it, told us to get a key made for it.

"I took the key, and they put the dimmer switch on, about that time they had completed putting it on, and so we left and went and got a key made for it and brought the other key back, gave it to John Crane, and I don\'t know if he put it back in the cash register or not. I just handed it to him. Anyway, we had a copy of the key made.

"Then the next day we came over there and got the truck and went and stole the safe out of the post office." (Tr. 141, 142)

In his own behalf Crane testified that he had been in the garage business in Rossville, Georgia, for 23 years and operated a lot for the sale of automobiles in connection with his garage.⁹ He had a heart condition and on May 4, 1968, he was in an automobile accident. His brother Ernest thereafter operated the garage for him. Ernest did a brake job on Seitz's automobile, and Crane had known Seitz for only two or three weeks. According to Crane's testimony, Seitz in the company of Brown had talked to Ernest about buying the truck. Crane had never before seen Brown. Crane admitted giving Seitz the paper on which appeared in his handwriting "866-8042 Home J. Crane," introduced as Government Exhibit 11. Crane testified that Ernest lives at Burning Bush, a long distance from the garage, while Crane lives within less than a mile, and further

"He (Seitz) asked Ernest if they decided if they wanted it could they call him Sunday or some time when we was closed up, if they wanted to buy the truck, how could they get in contact, and he said, `Well, John lives closer than I do.\'

"And I gave him — he said, `It would be better if you gave them your telephone number because I live at Burning Bush.\'" (Tr. 245)

According to Crane's testimony, on this Sunday morning, September 21, at 6:10 o'clock, Seitz telephoned to him.

"They sic said they wanted the truck, they had a job for it, and to come make a bill of sale on it. I said, `It\'s not even daylight.\' I said, `Let\'s wait until it\'s

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