Wood v. United States

• Decision Date: 09 April 1965
• Docket Number: No. 17620.,17620.
• Citation: 342 F.2d 708
• Parties: Lawrence Harold WOOD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

342 F.2d 708 (1965)

Lawrence Harold WOOD, Appellant, v. UNITED STATES of America, Appellee.

No. 17620.

United States Court of Appeals Eighth Circuit.

March 17, 1965.

Rehearing Denied April 9, 1965.

Phillip S. Brown, of Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, Mo., made argument for appellant.

Bruce C. Houdek, Asst. U. S. Atty., Kansas City, Mo., made argument for appellee, F. Russell Millin, U. S. Atty. and Joseph P. Teasdale, Asst. U. S. Atty., Kansas City, Mo., on the brief.

Before MATTHES, BLACKMUN and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

Appellant was found guilty by jury verdict under an indictment which singularly charged him with unlawfully "entering a railroad car * * * containing an interstate shipment of freight, * * having the intent to commit a larceny therein" in violation of § 2117, Title 18 U.S.C.A., and was sentenced to six (6) years' imprisonment therefor. He was granted leave to perfect appeal therefrom in forma pauperis by his sentencing Court. He seeks reversal of his conviction on several grounds: (1) there was a variance between the charge set forth in his indictment and proof adduced at his trial; (2) the verdict of guilt is not supported by the evidence; (3) error as to the admission of specified testimony; and (4) refusal of his trial Court to charge the jury as requested in relation to the testimony of an accomplice.

There is no substantial dispute as to the operative facts appearing of record in this wholly circumstantial evidence case. Since the "statement of facts contained in appellant's brief is adopted by appellee as being accurate," the facts hereinafter emphasized are all that need be stated to posit the disposition made of this appeal.

On June 13, 1963, Armour & Company, in Kansas City, Kansas, consigned a shipment of meat to one of its plants, in Elmira, New York. That meat was loaded in refrigerator car No. ARL-9090, which thereafter was duly sealed. The Missouri Pacific Railroad Company (Mo. Pac.), the originating carrier, moved that car during the nighttime as part of a transfer from Armour's plant in Kansas City, Kansas, to Mo. Pac.'s transit yards in Kansas City, Missouri. In the course of the movement thereof, it passed through the G. M. & O. freight yards at a rate of speed between 10 and 15 miles per hour, between 9:00 and 10:00 P.M., when a refrigerator car thereon was seen by two yard employees, with a door open and "a man standing on the step had a bunch of meat laying in front of him and there was another fellow riding the coupler." The only identification made of such persons is, "they were colored." Mo. Pac's special agents were alerted to that development. Shortly thereafter, the above-mentioned yard employees observed a Santa Fe train traveling west through the yards, and there was a refrigerator car on that train with a door open. A "colored man" riding that train got off in front of the G. M. & O. yard office and walked west through the railroad yards. Later that night, a Mo. Pac. security officer, while making an investigation in the Mo. Pac. yards, found car ARL-9090 with the seal broken and door open. After observing it was loaded with meat, he closed the door and resealed it.¹

On the same night, around 11:15 P.M., another Mo. Pac. security officer met appellant on a public street in Kansas City, Missouri, in the vicinity of, but not in, the railroad yard above mentioned. Because that security officer "knew this man from past experiences" he stopped him and inquired what he was doing in that vicinity. It is that officer's testimony that appellant told him he was there with a friend and the car broke down and he was going for help.² The officer testified, "I noticed he was wearing a beige colored shirt and on the shirt there was leavings of meat grease" which led him to suspect appellant had some connection with the theft of meat from railroad car ARL-9090, supra. As a consequence, that officer and one of the yard men above mentioned followed appellant for several blocks, until Kansas City police officers were accosted, who placed appellant under arrest.

On cross-examination, the above-mentioned Mo. Pac. special officer testified, there was more than one refrigerator car entered in the same transit yard on the night here considered. The only reasonable inference to be made from his testimony is, that the other refrigerator car was part of a Santa Fe train, and also contained a shipment of meat; that entry was made therein and meat taken therefrom in the same vicinity and was found in weeds in close proximity to the place where the Government's evidence reveals meat from car ARL-9090, ante, was found.

The most damaging testimony adduced at appellant's trial, circumstantially connecting him with the only crime for which he was here charged, was that given by an admitted accomplice, Barnabas Farrell, who testified as a witness on behalf of the Government. It was that witness's testimony that he had been slightly acquainted with appellant prior to the time of the above-related facts. On the day in question appellant approached him and made a request to be driven "some place" that evening, for which he would pay $15.00. Farrell testified that at appellant's direction he drove an automobile to the vicinity of Troost and Guinotte Streets, in Kansas City, Missouri, near, but not in, the railroad yards above mentioned, at about 7:30 or 8:00 P.M. After arriving at that location and parking the car, appellant got out and said: "Come on, let's catch the train." In answer to the question: "Did he say anything alse about why he wanted to catch the train?" Farrell's answer was: "He said he was going to throw something off and wanted me to throw it off the track." Thereafter, Farrell testified, he and appellant boarded a train, otherwise unidentified, moving through the above-mentioned yards; that the appellant boarded first, and he (Farrell) got aboard two cars behind appellant; that he did not thereafter see appellant "enter any freight car" or see him "inside any freight car," nor did he see appellant "throw anything out of any freight car," although "I was watching for something to be thrown off, I didn't know what * * *." Upon seeing two boxes on the ground beside the tracks, Farrell got off the train, picked up the boxes and secreted them in some weeds. While doing so, he saw the word "Armour" on one of the boxes. Such are all the salient facts contained in this record circumstantially connecting appellant with the crime for which he was here prosecuted and stands convicted.

Appellant's Court-appointed counsel, by argument, premises the first assignment of error, ante, thus: There was a fatal variance between the language of appellant's indictment and the evidence presented at his trial, in that there was no proof adduced, either directly or circumstantially, that appellant might, could, or did "break the seal" or make entry into refrigerator car No. 9090, traveling in interstate commerce, as the Government here contends; and the submission of that issue for consideration by the jury under the particular proof here adduced was prejudicial error. It is not necessary that we follow appellant's counsel in all the logic and presentation he makes in support of that assigned error. It is sufficient to note that as a part of the premise for such claim of "variance" Court-appointed counsel points out that it is wholly related to the "sufficiency of the evidence" to sustain the only charge made against appellant, namely, unlawful "entry" into a boxcar moving in interstate commerce, in violation of § 2117, supra; and that his trial Court "charged the jury" as follows:

"* * * If you find and believe beyond a reasonable doubt that the defendant did break the seal of this boxcar, ARL-9090 and enter it in the intent to commit a larceny * * you should find the defendant guilty." (Emp. added.)

That appellant's counsel asserts, was error because his indictment:

"* * * does not charge the defendant-appellant with breaking the seal of any boxcar but merely with entering a boxcar, namely, ARL-9090, with the intent to commit a larceny. It is further submitted that it was never proved by circumstantial evidence, or otherwise, that defendant entered any boxcar."

Be the above-quoted contention, as it may, counsel for the Government, by brief filed before us, concedes the instruction, ante, as given by appellant's trial Court:

"* * * presents two issues to the jury. One, whether the defendant broke the seal of the car in question, and, secondly, whether he did enter that car with the intention of committing a felony therein. The Government concedes that the only issue before the jury was whether the defendant did in fact enter the car with the requisite intent and that the mention by the Court (below) of `breaking the seal\' should have been omitted." (Appellee\'s Brief, p. 4. Par. and italics added.)

In the light of the character of the proof adduced at appellant's trial, we can only agree.

Appellant by indictment was only charged with the crime of entering a boxcar moving in interstate commerce with "intent to commit a larceny." The gravamen of such crime is stated with clarity in United States v. Carpenter, 143 F.2d 47, 48 (7 Cir. 1944). This Court has previously ruled that instructions given to the jury in a criminal case should not include, or comment be made on, that part of a statute defining an offense which is not charged in an indictment. De Mayo v. United States, 32 F.2d 472 (8 Cir. 1929); Bishop v. United States, 16 F.2d 406 (8 Cir. 1926). That is so because a defendant in a criminal case is entitled to be tried only on the charge brought against him. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; Epstein v. United States, 174 F.2d 754 (6 Cir. 1949). Any material variance from an indictment charge by proof, or submission of a criminal case for consideration by a jury, if found prejudicial, is reversible error. Cf. ...