Washington v. United States

• Decision Date: 24 January 1964
• Docket Number: No. 17381.,17381.
• Citation: 326 F.2d 585
• Parties: George WASHINGTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.2d 585 (1964)

George WASHINGTON, Appellant, v. UNITED STATES of America, Appellee.

No. 17381.

United States Court of Appeals Eighth Circuit.

January 24, 1964.

Roger M. Hibbits, St. Louis, Mo., for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before MATTHES and MEHAFFY, Circuit Judges, and MICKELSON, District Judge.

MEHAFFY, Circuit Judge.

The appellant, George Washington, was tried to a jury and found guilty of violation of § 641, Title 18 United States Code, and sentenced to a term of six years in the custody of the Attorney General.

The indictment charged that on or about the 26th day of September, 1962, the appellant, in the City of St. Louis, Missouri, "did steal and purloin a thing of value of the United States and of a department thereof, to-wit, one Keuffel and Esser Company surveyor's transit, belonging to and being the property of the United States Corps of Engineers, Granite City Army Depot, the value of said property exceeding the sum of $100.00."

Briefly summarized, the evidence is as follows. Two witnesses who knew appellant by sight say they saw him on the day of the theft leaving the site of the building at 1629 Washington Avenue in the City of St. Louis, Missouri carrying a bag which they identified as appearing to be the bag which was used as a cover for the surveyor's instrument stolen from the building on that same date. Neither of these witnesses knew the appellant by name but one of them stated he had seen him thirty or forty times. The other witness, a freight elevator operator at the building, positively identified the appellant as a person he passed on the loading platform where the instrument was stolen. The elevator operator later found inside the building on the stairway accouterments normally used with the instrument on the job. The foreman of the Precision Instrument Section of the Granite City Army Depot which supervised the repair and inspection of surveying instruments identified one of the Government's exhibits as a carrying case used to transport a transit bearing the same serial number as the instrument which was stolen and the initials "U.S.". The protective carrying bag and the transit, serial number 108655, which had been stolen, were also introduced into evidence. The instrument also had the initials "U.S." engraved on it indicating, at least, ownership by the United States Government at some time during its existence.

This witness testified that after his inspection of the instrument, it was shipped to the Seiler Instrument Company at 1629 Washington Avenue for repair, that the cost of the instrument to the Government was $530.00 and that it had been repaired prior to being stolen.

Mr. Seiler, Vice President of the Seiler Instrument Company, testified his company occupied the eighth floor of the building from which the instrument was stolen. According to him, access to the eighth floor could be had by freight elevator, passenger elevator, stairway and a fire escape, and that on the date in question, it was reported to him that someone had taken an instrument. Seiler found the instrument box downstairs under the staircase and the instrument missing. It was his testimony that he had seen all three of the Government's exhibits, including the instrument itself, on September 26, 1962 when they were located near the elevator door inside their place of business on the eighth floor of the building along with ten other such instruments which had been repaired. In Seiler's words, the market value of the used instrument was approximately $530.00 to $550.00.

A Special Agent for the F.B.I. who investigated the theft testified that appellant was arrested by the St. Louis City Police and that he was present when appellant went before the United States Commissioner. He and another agent conversed with the appellant thereafter in the office of the United States Marshal. The appellant admitted to the agents he stole the instrument but denied knowledge it was Government property, insisting had he known he would not have taken it.

Appellant testified that he was not in the vicinity of the crime on September 26, 1962, that he had never seen the two witnesses who identified him as being in that vicinity, and that he had never been on the loading platform in the rear of the building. Appellant further testified that after appearing before the Commissioner, a Special Agent for the F.B.I. told him that if he would tell the agent where he hid the instrument and whether or not he did it, the agent promised to talk to the Commissioner to get his bond reduced. Thereupon in order to get free on bond, appellant asserted he admitted having stolen the instrument. Shortly thereafter, the Special Agent returned, telling him his bond had been reduced from $3,000 to $1,000. Appellant admitted prior convictions for larceny, forgery and drug addiction.

Appellant here contends that the court erred in:

(a) Singling out the testimony of appellant in the court's charge to the jury, thus depriving appellant of a fair trial;

(b) Failing to sustain appellant's motion for a judgment of acquittal made at the conclusion of all the evidence for the reason that the Government failed to sustain its burden of proof that the property stolen was property of the United States Government; and

(c) Admitting testimony concerning an alleged confession by the appellant which was involuntary and induced by promises of freedom.

As to the first grounds of alleged error, there was no objection imposed to any of the court's charge. The record reflects the court's statement at the conclusion of his instructions to the jury:

"The charge that the Court gave in this matter has been read and gone over with the attorneys for the government and for the defendant. There are no objections made by either party."

Rule 30, Fed.R.Crim.P. clearly provides:

"* * * No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * *"

This Court has frequently held that failure to comply with the above rule provides nothing for appellate review.

The latest expression by this Court is Michaels Enterprises, Inc. v. United States, 321 F.2d 913, at pages 916-917, 8th Cir., 1963 wherein Judge Ridge ruled:

"It has been so often reiterated that failure to except to `the charge or omission therefrom\' as given, `stating distinctly the matter to which (one) objects and the grounds of his objection\' (Rule 30 F.R.Cr.P., 18 U.S.C.A.), presents nothing for appellate review, so far as the charge to a jury in a criminal case is to be considered, that fortifying authorities should not be necessary. But see, Gendron v. United States, 295 F.2d 897 (8 Cir. 1961); Johnson v. United States, 291 F.2d 150 (8 Cir. 1961); Rizzo v. United States, 295 F.2d 638 (8 Cir. 1961); Wegman v. United States, 272 F.2d 31 (8 Cir. 1959); Rosenbloom v. United States, 259 F.2d 500 (8 Cir. 1958) cert. den. 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302; Davis v. United States, 229 F.2d 181 (8 Cir. 1956), cert. den. 351 U.S. 904, 76 S.Ct. 706, 100 L.Ed. 1441; Kreinbring v. United States, 216 F.2d 671 (8 Cir. 1954)."

Our perusal of the instructions leaves us with the impression that Judge Meredith went to great length to meticulously protect appellant's every right. Apparently, appellant's trial attorney concurred, since he approved of the entire charge. The failure, however, to comply with Rule 30 relieves us of any necessity to pass on the substance of the court's charge.

Appellant also argues that the Government failed to sustain its burden of proving that the property stolen was owned by the United States Government. The article stolen, a surveyor's transit, had been sent to the Seiler Instrument Company for repair by the United States Corps of Engineers, Granite City Army Depot. Mr. E. P. Seiler, Vice President of the Company, testified that the transit was stolen from his place of business and that the transit introduced into evidence by the Government was one of ten units which were completely repaired and awaiting pick-up by the "Granite City Engineers people of the Depot".

The foreman of the Precision Instrument Section of the Granite City Engineers Depot supervised the repair and inspection of the stolen transit introduced into evidence. He identified this exhibit by model, features, and serial number as the transit belonging to the U. S. Government which he shipped to the Seiler Instrument Company for repair.

While appellant contends that the above evidence consisted of conclusions based on hearsay, no objection was made to the admissibility of the testimony. The Corps of Engineers possessed the instrument bearing the engraved initials "U.S." on it, inspected it and elected to have it repaired. This was the same instrument that was stolen from the Seiler Instrument Company. This evidence standing alone is sufficient to justify the jury in concluding that the transit was...