United States v. Shiver
| Decision Date | 21 August 1969 |
| Docket Number | No. 26723.,26723. |
| Citation | 414 F.2d 461 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Woodrow W. SHIVER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James H. Fort, Columbus, Ga., court appointed for appellant.
Woodrow W. Shiver, pro se.
Floyd M. Buford, U. S. Atty., Macon, Ga., Manley F. Brown, D. L. Rampey, Jr., Asst. U. S. Attys., Macon, Ga., for appellee.
Before JOHN R. BROWN, Chief Judge, GODBOLD, Circuit Judge, and CABOT, District Judge.
The appellant, Woodrow W. Shiver, was convicted in the District Court for the Middle District of Georgia of receiving and concealing a stolen motor vehicle which was moving in interstate commerce, knowing the same to have been stolen, in violation of 18 U.S.C. § 2313, the Dyer Act.
The issues before this court are (1) whether police reports together with insurance company records were properly admitted into evidence under 28 U.S.C. § 1732, the Federal Business Records Act, and (2) if not properly admitted, whether there remains sufficient legal proof of the necessary element that the car had been stolen to sustain the conviction. In this latter consideration, the proof being circumstantial, it must be determined from the record whether there is any theory of the evidence from which the jury, in finding the defendant guilty, might have excluded every reasonable hypothesis except guilt beyond a reasonable doubt. Odom v. United States, 377 F.2d 853 (5 Cir.1967).
The evidence presented by the government at trial can be categorized into two groups. The first body of proof was introduced for the purpose of showing that the vehicle in question was in fact stolen. The evidence on this point consisted of a police report indicating that the vehicle was reported stolen and records from the insuror indicating that it had paid the owner for the loss of the vehicle. These records were made in the ordinary course of business. The police report was identified at trial by a detective of the police department, witness O'Connor, and the insuror's records were identified by an insurance adjuster, Lee Railey, neither of whom had any personal knowledge of the theft. Detective O'Connor also produced a certified copy of title to the automobile showing the owners, who did not appear at trial, to be Harry and Becky Snell. Finally, there was a statement made at the trial by Sam Featherstone, Jr., a Columbus, Georgia, detective that his investigation revealed that the car was "stolen out of Miami Beach, Florida." This testimony was admitted without objection.
The second body of proof consists of a series of factual circumstances which the government contends satisfies the standards for circumstantial evidence set forth in Odom, supra. The government asserts that this evidence, even when viewed alone, indicates beyond a reasonable doubt and to the exclusion of all other reasonable hypotheses that the car was in fact stolen and that the defendant knew it to be stolen. This evidence is that the defendant was in possession of the vehicle two days after it was reported stolen, that the defendant claimed to have won the car in a gin rummy game, that the identification number on the bill of sale differed from the one imprinted on the vehicle, that the defendant did not receive a certificate of title but only a bill of sale from the seller, that the defendant persuaded his brother to unlawfully obtain Alabama tags for the car, and finally, that the vehicle was not listed on a bankruptcy schedule filed subsequent to its acquisition.
With respect to the first body of proof it is appellant's contention that the introduction of the various records was error, constituting inadmissible hearsay. The government contends that the records were properly admitted pursuant to 28 U.S.C. § 1732, the Federal Business Records Act. The purpose of the Act is to provide, as an exception to the "hearsay" rule, an acceptable substitute for the specific authentication of records kept in the ordinary course of business. Phillips v. United States, 356 F.2d 297 (9 Cir.1965). The underlying rationale permitting the exception is that business records have the "earmark of reliability" or "probability of trust-worthiness," since they reflect the day to day operations of the enterprise and are relied upon in the conduct of business. Palmer v. Hoffman, 1943, 318 U.S. 109, 63 S.Ct. 477, 480, 87 L.Ed. 645; Central Railroad Co. of New Jersey v. Jules S. Sottnek Co., 258 F.2d 85 (2 Cir.1958). Moreover, an additional purpose of the Act is to permit the business record to be introduced into evidence in substitution for the...
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