United States v. May, 19675.

• Decision Date: 03 February 1970
• Docket Number: No. 19675.,19675.
• Citation: 419 F.2d 553
• Parties: UNITED STATES of America, Appellee, v. Walter MAY, West Pharris May, and Albert Cornelius Harris, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

419 F.2d 553 (1969)

UNITED STATES of America, Appellee, v. Walter MAY, West Pharris May, and Albert Cornelius Harris, Appellants.

No. 19675.

United States Court of Appeals Eighth Circuit.

December 30, 1969.

Rehearing Denied January 28, 1970.

Rehearing Denied February 3, 1970.

Karl F. Lang, St. Louis, Mo., for appellants; Dewey S. Godfrey, St. Louis, Mo., on the brief.

Robert B. Schneider, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., on the brief.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

Rehearing En Banc Denied February 3, 1970.

LAY, Circuit Judge.

This is an appeal from criminal convictions involving the theft of personal property in excess of $100.00 from interstate commerce. The defendants complain that (1) the evidence is insufficient to sustain a conviction since (a) there is no showing that the defendants were connected with the theft from the truck itself and (b) the contradictions of the government witnesses as to the facts in issue raise a reasonable doubt as to their verity; (2) the court erred in the admission into evidence of a price list to establish the value of the stolen property; and (3) the evidence failed to establish that the goods were stolen from interstate commerce. We affirm the convictions.

On Sunday, December 8, 1968, Walter May and West Pharris May accompanied 19-year-old Albert Cornelius Harris to a location near the Motor Freight Company in St. Louis, Missouri. According to Harris, they stopped there because of motor trouble. The automobile was a 1962 Oldsmobile owned by West May. At approximately 10:30 a. m., Walter May was observed by two off-duty police officers with the auto parked at a curb and with the hood raised. The officers drove past the area, made a "U" turn, and observed West May and Harris coming from the fencedin grounds of the Motor Freight Co. Both officers had earlier observed the two men, later identified as West May and Albert Harris, as they drove up to the scene. West May and Harris at that time were seen on the private grounds of the Motor Freight Co. One of the officers recalled the two men jointly throwing a carton over the fence. The fence was eight feet tall. The carton was described as weighing approximately 50 pounds and containing shotgun shells. It was later discovered that there were five cartons outside the fence, each containing individual boxes of shotgun shells.

The officers testified that after they made the "U" turn, the parked auto belonging to May was turned around and was proceeding slowly in the same direction. At this time the two men who were previously inside the Motor Freight grounds were now outside the fence and approaching the Oldsmobile driven by Walter May. The three were arrested.

An investigation was made and the Motor Freight Co. truck containing the shotgun shells was found with its doors open and six cartons of shells missing. The shells were part of a shipment of 26 cartons that had been routed by Remington Arms in Missouri to a buyer in Kentucky via the Motor Freight Co.

The two officers did not relate their observations in an identical way and it is claimed that their testimony contained many inaccuracies and that they contradicted one another as to what the defendants were doing, as well as to all of the events that ensued after the officers made the "U" turn. Defendants question the officers' ability to actually see from within their auto what they say occurred.

In adversary proceedings it is generally claimed that witnesses for one side or the other dwell upon testimonial inaccuracies. Faulty recollection of a witness often is a cross-examiner's "fools gold" delivered up to a jury to attack the witness' credibility. Appellate judges are too far removed in position to fairly perceive from a cold record the vagaries of the human personality involved in a witness' synthesis of telling the "truth." The jury is the ultimate and only judge of the factual basis of a defendant's guilt. The defendants claim here, as they did in their jury argument that the government's case was based upon a "morass of incredibility." When they lost this argument to the jury, they foreclosed their only chance of success on that issue. A reviewing court may only direct a motion for acquittal on the sufficiency of the evidence when (1) it may be said as a matter of law that there exists no evidence of guilt whatsoever upon the record or (2) where there exists no substantial evidence from which reasonable men may say that the defendant is guilty beyond a reasonable doubt. Here there was direct...