United States v. Jones

• Decision Date: 24 September 1969
• Docket Number: No. 19384.,19384.
• Citation: 418 F.2d 818
• Parties: UNITED STATES of America, Appellee, v. Herbert Ray JONES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

418 F.2d 818 (1969)

UNITED STATES of America, Appellee, v. Herbert Ray JONES, Appellant.

No. 19384.

United States Court of Appeals Eighth Circuit.

September 24, 1969.

Murray L. Galinson of Mullin, Galinson, Swirnoff & Weinberg, Minneapolis, Minn., for appellant.

J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Patrick J. Foley, U. S. Atty., Minneapolis, Minn., on the brief.

Before BLACKMUN, LAY and HEANEY, Circuit Judges.

LAY, Circuit Judge.

Defendant was convicted and sentenced for armed robbery of a federally insured bank under 18 U.S.C. § 2113(d).¹ The indictment alleged that while committing this act the defendant assaulted and placed in jeopardy the lives of five persons. The defendant urges several grounds for reversal. We need only discuss the claim of insufficient evidence, which we sustain.

The facts show that on February 21, 1967, the Bank of Minneapolis and Trust Co. was robbed by two armed men at approximately 3:00 p. m. who placed the lives of the bank tellers in jeopardy. These men wore ski masks and were further identified by weight and height. Significant here is the fact that six government witnesses testified that the defendant was not one of the two men who perpetrated the robbery. Defendant was arrested in Kansas City, Missouri, February 22, 1967, on a misdemeanor charge arising from the use of an allegedly expired out state license plate. At the time of his arrest defendant had attempted to purchase another car from Motor City Motors in Kansas City, Missouri, by trading in his 1964 green and white Buick Wildcat, bearing Kansas license plates WY 64853. The Kansas license WY 64853 had been issued to Eddie Jones of Kansas City who was a friend of the defendant's mother. The plates had been discarded by Eddie Jones sometime before the incident in question. Defendant gave the salesman one hundred five-dollar bills as a deposit. According to the salesman, he gave his name as Eddie Jones and said he had won the money in a "crap game" the night before. The serial numbers on fourteen of these bills matched the serial numbers on "bait money" taken from the No. 1 teller cage in the Bank of Minneapolis during the robbery.

At approximately 10:30 a. m. on the morning of the robbery, the defendant and two unidentified men were seen in front of another bank in Minneapolis. All three men were observed "peering" into the bank. According to the defendant he returned to his car while the other two men walked around the corner and were gone approximately ten minutes. A witness testified the defendant himself was one of the men who walked away. This witness thought the men appeared suspicious and copied down their license plate number. Defendant had rented a room for two weeks in Minneapolis on February 20, 1967. The receipt for the room rent shows that the defendant gave a fictitious name. The government also proved the defendant had been unemployed before the robbery in question and had made only two payments on his Buick (one of these in the name of Eddie Jones).

Defendant took the stand and denied any implication or involvement in the robbery. He testified he was a "pool hustler" and used fictitious names wherever he traveled in order to avoid identification. He stated that he had won the money given to the used car salesman by gambling in pool games in Minneapolis. He identified the places he played. He stated he told the car salesman he had won the money gambling and denied that he said he had won it in a "crap game."

There are no other facts or circumstances linking the defendant to the robbery itself. The question is whether the facts proven are sufficient to sustain defendant's conviction of armed robbery by placing lives in jeopardy under § 2113 (d). The government relies upon the inference of theft by reason of the proof of defendant's recent possession of stolen property. The relevant charge of the court is set out below.²

This court has for many years approved the use of the instruction on possession of recently stolen property as a circumstance to infer participation in the theft. See Ezzard v. United States, 7 F.2d 808 (8 Cir. 1925), and more recently, Anderson v. United States, 406 F.2d 529 (8 Cir. 1969), Sewell v. United States, 406 F.2d 1289 (8 Cir. 1969), Teel v. United States, 407 F.2d 604 (8 Cir. 1969), Pigman v. United States, 407 F.2d 237 (8 Cir. 1969), Burke v. United States, 388 F.2d 286 (8 Cir. 1968), Aron v. United States, 382 F.2d 965 (8 Cir. 1967). Approval of the instruction in federal crimes generally originates in the language in Wilson v. United States, 162 U.S. 613, 619, 16 S.Ct. 895, 40 L.Ed. 1090 (1896), wherein Chief Justice Fuller stated:

"Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight, unless explained by the circumstances or accounted for in some way consistent with innocence."

Since the possession relates to the theft itself, guilt may be inferred for the more aggravated crime associated with the theft, as in Wilson, where the defendant was tried for murder. See e. g., Jenkins v. United States, 361 F.2d 615 (10 Cir. 1966) (burglary).

The origin of the rule is somewhat uncertain. Early English cases make liberal reference to it. Reg. v. Cockin, 2 Lew C.C. 235 (1836). The rule was well stated in Reg. v. Exall, 4 F. & F. 922, 926-927 (1866):

"The law is, that if, recently after the commission of the crime, a person is found in possession of the stolen goods, that person is called up to account for the possession, that is, to give an explanation of it, which is not unreasonable or improbable. The strength of the presumption, which arises from such possession, is in proportion to the shortness of the interval which has elapsed. If the interval has been only an hour or two, not half a day, the presumption is so strong, that it almost amounts to proof; because the reasonable inference is, that the person must have stolen the property. In the ordinary affairs of life, it is not probable that the person could have got possession of the property in any other way. And juries can only judge of matters, with reference to their knowledge and experience of the ordinary affairs of life."

The rule is discussed as early as 1716 in 2 East's, Pleas of the Crown 656; and in 2 Hale's, Pleas of the Crown 289 (1736). This former authority reads:

"Wherever the property of one man, which has been taken from him without his consent, is found (recently after the taking) upon another, it is incumbent on that other to prove how he came by it; otherwise the presumption is, that he has taken it feloniously."

The rule is discussed at length in early American cases. See Commonwealth v. Millard, 1 Mass. 6 (1806); State v. Smith, 24 N.C. 402 (1842); Cook v. State, 84 Tenn. 461 (1886); Knickerbocker v. People, 43 N.Y. 177 (1870); State v. Raymond, 46 Conn. 345 (1878). See also the annotation in 101 Am.St. R. 481-524. Today the doctrine receives general acceptance without explication. The rational connection of the inference from the fact proven is universally assumed and is not here questioned. Presently, however, when the instruction utilizes the word "presumption" rather than "inference" it finds a checkered rejection. Cf. Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946); Van Gorder v. United States, 21 F.2d 939 (8 Cir. 1927), and Kasle v. United States, 233 F. 878 (6 Cir. 1916). And see also Payne v. State, 435 P.2d 424 (Okl.Cr. 1967). This court has frequently approved the use of a permissible "inference" to be drawn from possession, but has generally rejected the use of the confusing "presumption." Sewell v. United States, 406 F.2d 1289 (8 Cir. 1969).³ But this is not the problem here since the trial court instructed only in terms of "inference."

Notwithstanding the recognized validity of the inference, early cases and writers reflect guarded circumspection in the use of the doctrine. As said in State v. Smith, 24 N.C. 402, 408-409 (1842):

"But it is obvious that presumptions of this kind, which even in the strongest cases are to be warily drawn, want one of the indispensable premises to warrant them, when the possession, from which a guilty taking is inferred, does not shew a taking or privity in taking on the part of the possessor.

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And unless there be other facts and circumstances to warrant the inference, such a presumption would be rash and irrational."

And in the early but noted work by Wills on Circumstantial Evidence 62-63 (6 Am. ed.1886), the author observed:

"But the rule must be applied with discrimination for the bare possession of stolen property, though recent, uncorroborated by other evidence, is sometimes fallacious and dangerous as a criterion of guilt."⁴

Before the turn of the century the Tennessee Supreme Court in Cook v. State, 84 Tenn. 461 (1886), quoted from Wharton's Am.Crim.Law saying:

"He further says, that the presumption arising from this fact of possession, standing by itself, except in cases of receiving stolen goods, is too slender to support a conviction: Sec. 730.

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"In cases of this kind, where the party is found in possession of stolen property, and the proof shows his possession to have been a guilty possession, slight circumstances may authorize a jury to determine whether he has been guilty of the theft, or of receiving the property, knowing it to have been stolen." 84 Tenn. at 466.

Most modern authorities adopt these early principles by either holding or implying that the inference from recent possession of stolen property must in some way be corroborated by other circumstantial factors as to the crime charged to sustain a finding of sufficiency of evidence. See e. g., Torres v. United States, 270 F.2d 252, 258-259 (9 Cir. 1959); Van Gorder v. United States, 21 F.2d 939 (8 Cir. 1927); Wolf v. United States, 290 F....