United States v. Thompson, 18722.

• Decision Date: 04 February 1970
• Docket Number: No. 18722.,18722.
• Citation: 422 F.2d 1104
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Houston THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

422 F.2d 1104 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Paul Houston THOMPSON, Defendant-Appellant.

No. 18722.

United States Court of Appeals, Sixth Circuit.

February 4, 1970.

A. Wallace Grafton, Jr. (Court Appointed), Louisville, Ky., for appellant.

John R. Wilson, Asst. U. S. Atty., Louisville, Ky., Ernest W. Rivers, U. S. Atty., Louisville, Ky., on brief, for appellee.

Before PECK and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Paul Houston Thompson, appellant herein, was indicted and charged with violation of Title 18, U.S.C.A., Sections 2312 and 2313, for transporting a stolen vehicle in interstate commerce and concealing a stolen motor vehicle which was moving in interstate commerce, knowing it to have been stolen. On the trial before a jury, counsel for Thompson objected to the admission of a police accident report and, at the close of the prosecution's case, moved for a judgment of acquittal based on insufficient evidence to convict. Both the objection and the motion were overruled. The jury found appellant guilty as charged on two counts of the indictment, and the court sentenced him to five years in the penitentiary on each count, with the sentences to run consecutively. Thompson appeals, in forma pauperis, from the judgment on the verdict, and the sentences on the two counts of the indictment.

The facts are as follows: During the evening of June 25, 1966, or the morning of June 26, 1966, a black 1958 model Thunderbird Coupe, Serial No. H-8YH112083, bearing Indiana license 5867M2, was stolen from the Empire Auto Sales used-car lot in Fort Wayne, Indiana. Two days later, on June 28, 1966, a black 1958 Ford Thunderbird was involved in a so-called hit-and-run accident in Louisville, Kentucky. Appellant admitted that he was the driver of the car involved in the accident. An "Auto Wanted Report" was introduced into evidence during the trial by a detective of the Louisville Police Department, showing that a 1958 Thunderbird bearing Kentucky license K78-466 was wanted in connection with the alleged hit-and-run accident. The "Auto Wanted Report" was made in the ordinary course of business by the Louisville Police Department, and was on file with the department.

Four days after the accident, on July 2, 1966, a black Thunderbird was discovered abandoned in Corydon, Indiana. It bore the same vehicle identification, Serial No. H-8YH112083, as the Thunderbird that had been stolen in Fort Wayne. Fingerprints taken from the right front vent window of the recovered Thunderbird were, on the trial identified as the fingerprints of appellant Thompson. Fifteen months after the discovery of this abandoned car in Corydon, Indiana, on October 2, 1967, appellant was arrested in Louisville, Kentucky, and charged in the indictment for having transported and concealed a stolen car, knowing it to have been stolen.

From the evidence, it was shown that the Kentucky license K78-466, which the police "Auto Wanted Report" disclosed was attached to the Thunderbird at the time of the accident, had been attached to a Cadillac car which Richard Thompson transferred to his son, the appellant, Paul Houston Thompson, on April 28, 1966, at which time Richard Thompson executed a bill of sale of the Cadillac motor vehicle to appellant; and that the bill of sale of the Cadillac showed that it had been registered in Kentucky in 1966 with license number K78-466. It appears that, although the transfer of the Cadillac to appellant was by bill of sale, it was actually a gift from Richard Thompson to his son, the appellant. Appellant, while admitting he was the driver of the Thunderbird involved in the accident, denied that he had transported it from Fort Wayne, Indiana, to Louisville, Kentucky. Instead, he testified that he had borrowed the Thunderbird only a few hours before the accident from his friend, William O. Franklin. Franklin did not testify in the case. We have, therefore, the following evidence upon which the Government relies to sustain the conviction of appellant.

Appellant admits he was driving the stolen car in Kentucky at the time of the so-called hit-and-run accident. The license plates, which had belonged to him, had been removed from the Cadillac he had received from his father, and were affixed to the stolen car, according to the Louisville Police report. The stolen car was found four days after the accident, abandoned in Indiana. As hereafter appears, appellant testified that he had sold the Cadillac, before the accident, to his friend, Franklin.

The Thunderbird, as stated, had been stolen from a used-car lot in Fort Wayne, Indiana, on June 26, 1966. The so-called hit-and-run accident occurred two days later in Kentucky, on June 28, 1966, when appellant admits he was driving the car on which, according to the Louisville Police Department report, were affixed the license plates that had been removed from the Cadillac. Four days after the hit-and-run accident, the car had been transported across the state line again and was found in Corydon, Indiana, with appellant's fingerprints on the right front vent window. Appellant, by this time, had disappeared.

Appellant at the time of his trial in April 1968 was twenty-seven years old, and was twenty-five at the time of the alleged theft and transportation of the motor vehicle in interstate commerce. Prior to that time he had lived in Lima, Ohio, where he worked for the Campbell Soup Company. In Lima, according to appellant's testimony, he had moved into an apartment building where he met William O. Franklin, and they became friends. Franklin was a security guard at the Bayliss Department Store in Lima. Appellant's father, as has been mentioned, had given him a white Cadillac, which, he stated, he afterward sold to Franklin. After the first week in June, 1966, appellant returned from Lima, Ohio, to his home in Louisville, Kentucky. Appellant further testified that after he had returned home, he was visited by Franklin on the day of the accident; that Franklin had driven the black Thunderbird in question that morning from Lima, Ohio, to Louisville, Kentucky, a distance of 180 miles; that after conversing awhile with appellant and some of his friends in Louisville, Franklin stated that, after the long drive, he was tired, and wanted to take a nap in appellant's bed; that before Franklin went to sleep, appellant asked him if he could drive his Thunderbird for a few hours, and Franklin consented; that appellant then took the Thunderbird, and drove around Louisville for a few hours, during which time the so-called hit-and-run accident occurred.

Appellant says that it was not a "hit-and-run" accident. He testified that, after Franklin let him take the black Thunderbird and while driving it in Louisville with three friends — "Herman, Denny and Mike," whose complete names he afterward testified to — he came to the corner of 22nd Street and Duncan when a small child ran out in front of the car; that the child was about a year and a half old; that he hit the child and, almost immediately, stopped the automobile, got out, picked up the child, "and it was lifeless; it was unconscious. It had two front teeth * * * that was hanging loose and bleeding. Well, I listened for a heartbeat. * * * and I heard one and its mother came out of the house * * * screaming, in hysterics, and the child came to, started smiling * * * like it was knocked silly or something and I handed the child to the mother and then the police pulled up about that time. * * * There was maybe fifteen, maybe twenty people there at the most and the officers came and they took the child. Well, after they left — now, nothing was said to me. I got in the car and drove off. The accident was clearly — it wasn't my fault. It was nobody's fault and it just happened, you know. I drove the car back * * * to Franklin, turned it over to him and he left and that's the last I seen of it and that's the only time I ever come in contact with the automobile, the first and only time and that's all I know about it."

"Q. Do you know where William Franklin is right now?

"A. Yes, sir: he is — he came through the jail. I am in jail now, been there for the last six months on this charge and he came through the jail on his way to the federal penitentiary."

It was undisputed that when the police car with two officers came to the scene of the accident, appellant was standing in the street a few feet from the Thunderbird car; that one of the police officers stated he saw him there during about five minutes until the police took the child to the hospital; that the police officer knew appellant; that after the police drove away, appellant and two of his friends drove away in the Thunderbird; that later other police arrived to investigate; but no one was then present at the scene of the accident. It also appeared that the child was not seriously injured, and returned from the hospital with his parents. The child was "all right," according to the police officer in charge.

Appellant said that after the accident, he worked in several different places: in Ocala, Florida, in oil recovery, that he was an oil recovery engineer; that he later was in the citrus fruit business for two or three months; that he saved a sum of money and went to California where he got a job at the Boat Chemical Company in Los Angeles, and worked there as a maintenance man and welder, and afterward returned to Louisville; that he had been in Louisville on Christmas in 1966, six months after the accident; that when he was in Louisville, he was in the tree surgery business with his father and brothers. After the accident, and until appellant's arrest, it appeared that the Federal Bureau of Investigation was looking for him in Kentucky, Florida and California.

Was there any evidence, or any inference to be drawn from the evidence that appellant had stolen the car in Fort Wayne, Indiana, and had transported it...