United States v. Thomas

• Decision Date: 15 June 1962
• Docket Number: No. 14841.,14841.
• Citation: 303 F.2d 561
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert Baxter THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

303 F.2d 561 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. Albert Baxter THOMAS, Defendant-Appellant.

No. 14841.

United States Court of Appeals Sixth Circuit.

June 15, 1962.

Alfred W. Taylor, Johnson City, Tenn., for defendant-appellant, Thomas E. Mitchell, Johnson City, Tenn., on the brief. Cox, Epps, Powell & Weller, Johnson City, Tenn., of counsel.

Ottis B. Meredith, Asst. U. S. Atty., Knoxville, Tenn., for plaintiff-appellee, J. H. Reddy, U. S. Atty., Chattanooga, Tenn., on the brief.

Before MILLER, Chief Judge, and McALLISTER and O'SULLIVAN, Circuit Judges.

PER CURIAM.

Appellant, who was Postmaster at Mountain Home, Tennessee, was found guilty by a jury under a two-count indictment which charged him with the violation of Section 1709, Title 18 United States Code, making it an offense for a postmaster to steal, abstract or remove from a letter, which comes into his possession for the purpose of being conveyed by mail, any article or thing contained therein. Each count dealt with a decoy letter mailed by a postal inspector which contained marked money and which carried on the envelope an assumed or fictitious return name and address. He received a sentence of one year on each of the two counts, the sentences to run concurrently.

Appellant contends that the first count of the indictment does not state an offense. He points out that it charges that the appellant "stole, abstracted, and removed a letter bearing a 7-cent United States air mail stamp, * * *, the sum of $9.37 in currency and coin * * *", instead of charging that the appellant "stole, abstracted, and removed from a letter * * * the sum of $9.37 in currency and coin * * *", as provided by the statute. It is obvious that the word "from" was inadvertently omitted in the first count of the indictment. However, since the appellant received equal concurring sentences under both counts of the indictment, the judgment must be affirmed if a valid sentence was imposed under the second count of the indictment. Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774; Davis v. United States, 269 F.2d 357, 363, C.A.6th, cert. denied, 361 U.S. 919, 80 S.Ct. 256, 4 L.Ed.2d 187; Stanley v. United States, 245 F.2d 427, 435, C.A.6th; Strauch v. United States, 223 F.2d 377, 378, C.A.6th, cert. denied, 350 U.S. 836, 76 S.Ct. 73, 100 L.Ed. 746; Singer v. United States, 208 F.2d 477, 480, C.A.6th.

Accordingly, we consider the second count of the indictment, which charges that appellant "stole, abstracted, and removed from a letter bearing a 4-cent United States postage stamp, addressed to * * *, and bearing return address Harper Joiner, Building No. 2, Mountain Home, Tennessee, the sum of $10.40 in currency and coin, which had been forwarded through a post office, entrusted to him, and came into his possession for the purpose of being conveyed by mail, * * *."

Appellant contends that the evidence on this count of the indictment was insufficient to take the case to the jury. The evidence was entirely circumstantial. No one saw appellant commit the offense charged. The Government's evidence was that $10.40 in marked money was placed by the agent in the decoy letter, which was dropped in the mail box and that when the appellant was searched the following day there was found on his person $5.40 of this marked money and the remaining $5.00 was found in his official funds. Appellant testified that for the purpose of changing a twenty dollar bill of his own money he placed the bill in his official funds and withdrew some one dollar bills and some change and that if the marked money was in his official drawer it was placed there by some one else without his knowledge or consent.

Appellant contends that where the Government's evidence is circumstantial, as in this case, it must be such as to exclude every reasonable hypothesis other than that of guilt. Although there is considerable support for such a rule with respect to circumstantial evidence, it is not the rule approved by the Supreme Court. In Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150, the Supreme Court ruled that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect. In accordance with that ruling, this Court has held that it is not necessary that circumstantial...