United States v. Davenport, 71-1487.
Decision Date | 13 October 1971 |
Docket Number | No. 71-1487.,71-1487. |
Citation | 449 F.2d 696 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Hershel DAVENPORT, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Jack H. Kaplan, Gamm, Greenberg & Kaplan, Shreveport, La., for defendant-appellant.
Donald E. Walter, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
Robert Hershel Davenport appeals from a judgment of conviction and sentence based on an indictment charging him with Interstate Receiving of Stolen Merchandise in violation of Title 18, U.S.C., Section 659.
Defendant first contends there was, in general, insufficient evidence to convict him of the crime and, more specifically, no evidence to establish his specific intent to permanently deprive the owner of the goods stolen.
In reviewing a verdict of guilty challenged on appeal as not supported by sufficient evidence, we must determine whether, taking the view of the evidence most favorable to the government, there is on the record evidence sufficient to convince a jury of the defendant's guilt beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); United States v. Halperin, 5th Cir. 1971, 441 F.2d 612; United States v. Robertson, 2d Cir. 1962, 298 F.2d 739.
In his brief defendant's counsel has forcefully and effectively pointed out inconsistencies in the testimony of some of the government's witnesses and other evidence which would tend to throw some doubt on their credibility. These arguments should have been, and were, presented to the jury in counsel's closing statement. They have little merit under the test set out above. After considering the entire record with a view most favorable to the government, we find sufficient evidence to establish all elements of the crime beyond any reasonable doubt.
Defendant also contends that the trial court should not have admitted crossexamination on and evidence of a law suit between defendant and an insurance company which tended to indicate that defendant had defrauded the insurance company.
Upon cross-examination of the defendant, the following colloquy took place between defendant and counsel for the government:
Appendix pp. 198-99. The government later recalled its witness Howard Halverson, who testified as follows:
Defendant contends that his cross-examination was improper because the circumstances surrounding the civil suit were irrelevant to the issue of defendant's guilt and tended to prejudice the jury against him. The rebuttal evidence of Halverson was, therefore, likewise irrelevant and even more prejudicial.
The government argues that the questions asked on cross-examination were admissible as tending to show defendant's lack of credibility and to rebut evidence of defendant's good character. The rebuttal testimony of Halverson was likewise admissible to impeach the credibility of defendant's previous testimony concerning the circumstances surrounding the lawsuit.
The only type of evidence admissible to show defendant's character is proof of his reputation in the community. Steinberg v. United States, 5th Cir. 1947, 162 F.2d 120. Specific acts of misconduct cannot be shown. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); French v. United States, 5th Cir. 1956, 232 F.2d 736. If the defendant offers evidence of his reputation for good character, the government may rebut by evidence that his reputation is bad. Michelson v. United States, supra. This evidence, however, is limited to testimony concerning reputation only. Proof of specific acts of misconduct is still not admissible. Curtis Publishing Co. v. Butts, 5th Cir. 1965, 351 F.2d 702; United States v. Beno, 2d Cir. 1963, 324 F.2d 582; McCormick, Evidence § 158, at 337 (1954).
The questions and evidence in issue cannot, therefore, be allowed to rebut defendant's good character evidence.
Although there is some controversy on this point,1 in this...
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United States v. Martinez, 73-1951.
...L.Ed. 503 (1954). This is not such a case. Under the circumstances, the evidence was improperly admitted. See, e. g., United States v. Davenport, 5 Cir., 1971, 449 F.2d 696. Appellants' challenge of the legal sufficiency of the indictment warrants only brief discussion. Under the criteria d......
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