United States v. Stubblefield, 18735.

• Decision Date: 20 March 1969
• Docket Number: No. 18735.,18735.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor STUBBLEFIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

408 F.2d 309 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Victor STUBBLEFIELD, Defendant-Appellant.

No. 18735.

United States Court of Appeals Sixth Circuit.

March 20, 1969.

Richard P. Moloney, Jr., court appointed, Lexington, Ky., for appellant.

James F. Cook, Asst. U. S. Atty., Lexington, Ky., for appellee, George I. Cline, U. S. Atty., Lexington, Ky., on brief.

Before WEICK, Chief Judge, O'SULLIVAN and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This is a direct appeal from a judgment entered on a jury verdict finding appellant guilty of kidnapping. He was sentenced to twenty-five years imprisonment, as was a co-defendant, Willis, who pleaded guilty. Another co-defendant received a fifteen year sentence from a different judge who had earlier accepted his plea of guilty to the same offense.

Two issues are presented for our consideration. The first concerns the propriety of admitting evidence about a jailbreak by defendants when the indictment did not charge that offense. The second requires us to determine whether the trial judge abused his discretion in imposing a twenty-five year sentence on appellant after another judge of the same district had imposed a fifteen year sentence on a co-defendant.

On the morning of October 4, 1966, the three co-defendants escaped from their cells in the Franklin County, Kentucky jail and overpowered and bound some of the guards. In the course of the escape, a prison officer was stabbed and his pistol was stolen. After leaving the premises, the escapees encountered a dentist who was leaving church where he had been attending mass, after having transported his son and a neighbor's daughter to the adjacent parochial school. Stubblefield and his companions forcibly entered the dentist's automobile and at knife-point compelled him to drive them to Indianapolis, Indiana. Appellant occupied the back seat of the vehicle and menaced the dentist with the pistol which had been stolen from the guard. During the course of the journey, the kidnappers talked about their escapade and appellant remarked that he had to "stick Penn (the deputy sheriff) a little."

The three defendants were apprehended by Michigan State Police officers near Jackson, Michigan on October 5. A search of their automobile produced a loaded pistol which had been stolen from the deputy sheriff.

The foregoing facts were testified to without contradiction at appellant's trial. Stubblefield admitted the jailbreak, theft of the revolver, and the assault on Penn, although he said, instead of a knife, he employed a "piece of a scissors" and "may have stuck him or cut him maybe a half an inch."

Consideration of the first issue presented on appeal convinces us that no error was committed in the receipt of this evidence of the jailbreak. In Loux v. United States, 389 F.2d 911 (9th Cir. 1968), it was held that introduction of evidence of an escape from prison was not error in a prosecution for kidnapping where evidence of the escape tended to establish a common plan and motive for the kidnappers. In the instant case, the evidence of the jailbreak served similar purposes. Moreover, the jailbreak and abduction of Dr. Bunker were continuous parts of an uninterrupted course of action. The limited purpose of this evidence was conveyed to the jury when it was instructed that appellant was being tried for kidnapping and not for escaping from jail or for any other offenses which may have been committed prior to the time of the offense charged in the indictment.

The second issue concerns the disparity between the 25 year sentence pronounced for Stubblefield and the 15 year sentence pronounced for the co-defendant who pleaded guilty to the same indictment...