United States v. McCoy, 72-1287
Decision Date | 18 January 1973 |
Docket Number | 72-1286.,No. 72-1287,72-1287 |
Citation | 472 F.2d 704 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Melvin Dennis McCOY and David Wayne Rice, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Harry Lee MATNEY, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Thomas V. Handy (Court appointed) London, Ky., for Harry Lee Matney. John M. Lawrence (Court appointed), Duerson & Lawrence, Berea, Ky., for Melvin Dennis McCoy and David Wayne Rice.
Eugene E. Siler, Jr., U. S. Atty., William D. Kirkland, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee.
Before EDWARDS and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.
Harry Lee Matney, Melvin Dennis McCoy and David Wayne Rice, defendants-appellants, appeal from a conviction, on three counts of a joint indictment, in the United States District Court for the Eastern District of Kentucky, at London.
The appellants were charged in count one with transporting goods and merchandise, a truck trailer, of a value in excess of five thousand dollars, in interstate commerce, from Elkton, in the State of Michigan, to Rockcastle County, in the Eastern District of Kentucky, knowing said truck-trailer to have been stolen. The second count charged that the appellants transported a stolen motor vehicle, a 1967 International truck-tractor, in interstate commerce from Atlanta, Georgia, to Florence in the Eastern District of Kentucky, knowing it to have been stolen. In the third count the appellants were charged with transporting a stolen motor vehicle, a 1967 International truck-tractor, in interstate commerce from Elkton, Michigan to Rockcastle County, in the Eastern District of Kentucky, knowing it to have been stolen.
The appellants were tried jointly before a jury and convicted on all three counts. The appellants were each given concurrent sentences of imprisonment for three years on each count of the indictment. There are two appeals; McCoy and Rice have appealed separately from Matney. We consider both appeals in this opinion.
One of Matney's assignments of error is that he was prejudiced in the minds of the jurors by questions of the prosecutor with reference to prior convictions of felonies. McCoy and Rice claim that they were also prejudiced by these questions.
On cross examination the prosecutor asked Matney if he had ever been convicted of a felony. He answered, "No, sir, I have not." The prosecutor then pursued the subject in the following manner.
At this point the trial judge interrupted for the reason that petit larceny was not a felony. No objections had been made by counsel.
At a conference at the Bench, the judge asked to see the prosecutor's "rap" sheet. This disclosed that there was no disposition of the "transportation of stolen property" and that the "breaking and entering in the night time in Norfolk, Virginia" was reduced to "trespass". The prosecutor held in his hand no proof of the commission of a felony by Matney and his questioning was improper.
Counsel for Matney objected on the ground that the prosecutor did not know whether the offenses he was reading off were felonies and requested the jury to be admonished. By agreement of all counsel the trial judge admonished the jury. The admonition was as follows:
Each counsel indicated that he had no objection to the admonition.
We consider whether this error affected the substantial rights of Matney or of McCoy and Rice. Rule 52 F.R.Cr.P.
It is undisputed that the tractor and trailer which are the subject of the counts of the indictment were stolen. It is also undisputed that the vehicles in question were transported in interstate commerce as alleged in the indictment. All three of the appellants were in possession of these vehicles at the time of their arrest. There is a presumption that when one is in possession of an article recently stolen, he stole it unless he can satisfactorily explain his possession. United States v. Thompson, 422 F.2d 1104, 1107, (C.A.6); Prince v. United States, 217 F.2d 838, 839 (C.A.6); McAbee v. United States, 111 U.S.App. D.C. 74, 294 F.2d 703, 706 (C.A.D.C.);...
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United States ex rel. Senk v. Brierley
...first place, the trial judge ordered the references to petitioner's criminal history stricken from the record,57 see United States v. McCoy, 472 F.2d 704 (6th Cir. 1973); United States v. De Larosa, 450 F.2d 1057 (3rd Cir. 1971), and instructed the jury "that no adverse inference may be inf......
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...tractor-trailer unit. We cannot agree with the defendants. The government cites us to the Sixth Circuit's decision in United States v. McCoy, 472 F.2d 704 (6th Cir. 1973), as supporting a two-count indictment in the concealment of a tractor-trailer. Admittedly, that case is somewhat differe......
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...can be drawn from the possession of recently stolen property. The position taken by the appellants lacks merit. See United States v. McCoy, 472 F.2d 704, 706 (6th Cir.), Cert. denied, Matney v. United States, 412 U.S. 921, 93 S.Ct. 2741, 37 L.Ed.2d 147 (1973); Prince v. United States, 217 F......
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