United States v. Stead, 19733.
| Decision Date | 04 May 1970 |
| Docket Number | No. 19733.,19733. |
| Citation | 422 F.2d 183 |
| Parties | UNITED STATES of America, Appellee, v. Larry Edward STEAD, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lawrence O. Willbrand, St. Louis, Mo., on brief, for appellant.
James M. Gordon, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., on the brief.
Before MATTHES, GIBSON and LAY, Circuit Judges.
Certiorari Denied May 4, 1970. See 90 S.Ct. 1534.
This is a direct appeal from a trial held January 23, 1969, Judge James H. Meredith presiding, in which a jury found the defendant, Larry Edward Stead, guilty of attempting to enter the Jefferson Savings and Loan Association, a federally insured institution, with intent to commit larceny. He was sentenced to twenty years in the custody of the Attorney General.
Stead appeals on the basis of three allegations of error. He claims (1) his arrest was without probable cause, (2) the Government's argument to the jury was inflammatory and prejudicial and amounted to reversible error, and (3) the Court erred in its instructions to the jury defining reasonable doubt.
The first claim is without substance. Miss Veronica Hancock was standing near the Jefferson Savings and Loan Association at Cherokee and California Streets in St. Louis, Missouri, in the early morning hours of November 15, 1968. While there she heard noises which sounded like hammering coming from the Jefferson Savings and Loan Association roof. She also saw two shadows on the wall across the alley from the Association building. One of the shadows appeared to picture a man picking at a roof. Miss Hancock immediately called the police from a nearby telephone booth. Officer Gary H. Perkins was dispatched to the scene. Officer Perkins saw a person crouched in the alley crawling south towards Cherokee Street. As the person emerged at the far end of the alley on Cherokee Street Officer Perkins apprehended him. The person arrested was the defendant Stead. Although Stead alibis that he was in the area looking for a girl friend after a lengthy card game with some friends, it is clear that Officer Perkins had probable cause to make Stead's arrest based upon Miss Hancock's story which was quickly corroborated by the suspicious circumstances of Stead stealthily stealing through a dark alley on his hands and knees.1 Stead does not contend the evidence is insufficient to warrant a judgment of conviction.
Stead next objects to the Government's closing argument to the jury. Specifically he objects to the Government saying in its closing argument:
Defendant's counsel objected to this statement and the jury was advised by the Court that the Government's comment was not evidence. The Government's argument, however, was obviously based upon the evidence presented at trial, which evidence was ample to support a finding that Stead was guilty and was a burglar. The Government merely went on to stress to the jury its duty, and the importance of incarcerating a man a jury believes to be guilty of crimes against the community, rather than allowing feelings of mercy to result in an innocent verdict for a guilty man. We believe that even without the cautionary admonition by the Court to the jury this argument was within permissible bounds.
Finally, Stead challenges the Court's instruction to the jury defining reasonable doubt. The Court stated:
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