Wood v. United States

• Decision Date: 29 June 1966
• Docket Number: No. 18211.,18211.
• Citation: 361 F.2d 802
• Parties: Lawrence Harold WOOD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

361 F.2d 802 (1966)

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

No. 18211.

United States Court of Appeals Eighth Circuit.

June 2, 1966.

Rehearing Denied June 29, 1966.

Phillip S. Brown, Kansas City, Mo., made argument for appellant and filed brief.

Bruce C. Houdek, Asst. U. S. Atty., Kansas City, Mo., made argument for appellee and filed brief with F. Russell Millin, U. S. Atty., Kansas City, Mo.

Before VOGEL, Chief Judge, and MATTHES and MEHAFFY, Circuit Judges.

MATTHES, Circuit Judge.

Appellant has twice been convicted of violating Title 18 U.S.C.A. § 2117.¹ We reversed the first conviction and remanded for a new trial, 342 F.2d 708. We now affirm.

Appellant challenges the sufficiency of the evidence to sustain the jury's verdict, and assigns as error the failure of the court to grant his motion for judgment of acquittal.

Consideration of the evidence in the light most favorable to the prevailing party, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Coon v. United States, 360 F.2d 550 (8 Cir. May, 1966) convinces us that the verdict is supported by and is responsive to competent and substantial evidence.

Appellant offered no defense, and we are unable to detect any material conflict in the Government's evidence.

Armour & Co. consigned a quantity of meat from its plant in Kansas City, Kansas, to Elmira, New York. Missouri Pacific Railroad Co. (Mo. Pac.) was the originating carrier. Refrigerator car ARL 9090 contained the shipment of meat, and on the night of June 13, 1963, was being transferred as part of a twenty-car complex in the railroad yards in Kansas City, Missouri, prior to its New York departure. Between 9:00 and 10:00 o'clock p. m. two yard employees of Gulf, Mobile & Ohio Railroad Co. observed that the south door of a refrigerator car, moving eastwardly, was open; that a "colored" man was standing in the doorway "with a pile of meat" in front of him; that another "colored" man was on the end of the same car. The incident was immediately reported to special officers of Mo. Pac. The ensuing investigation by the officers revealed these facts: (1) the south door of ARL 9090 was found open, the seal having been broken; (2) an automobile parked in the vicinity of Guinotte and Troost Streets with newspapers spread over the rear floor boards and the driver's seat; (3) two boxes containing Armour meat destined to Elmira, New York, in weeds under a big tree on the north side of the tracks four or five blocks east of the parked automobile.²

Shortly after the automobile and meat had been discovered, Barnabas Henry Ferrell, appellant's accomplice, was arrested near the automobile. At approximately 11:15 on the same night, appellant was accosted by a special agent of Mo. Pac. near Guinotte and Troost. The agent, who was familiar with appellant, observed "grease and blood" on the shirt appellant was wearing.

In the second trial, the Government introduced evidence, not presented in the first trial, relating to the construction of refrigerator cars of the type of ARL 9090. This evidence proved that the doors on each side of the car are fastened on the outside by a lever and that, upon raising the lever approximately one inch and swinging it around, the doors may be opened. There is a stirrup or step immediately below the doors which is designed for use in mounting the car and entering the same through the doorway. From the evidence the jury could justifiably find that such a car could be mounted while it was in motion, the seal could be broken, the door opened, and entry gained in a very short period of time and without difficulty.

Prior to the trial, accomplice Ferrell had pleaded guilty to stealing meat from an interstate shipment, and had been given a suspended sentence. As in the first trial, Ferrell gave damaging testimony against appellant. Ferrell had been acquainted with appellant prior to June 13, 1963. That evening, between 8:00 and 8:30 o'clock, for $15.00 which appellant agreed to pay, Ferrell transported appellant, at his direction, to Guinotte and Troost Streets. Upon arrival, a freight train was passing through the transfer yards. Appellant stated that he was going to "catch the train" and "told me to catch it, too". Appellant informed Ferrell that he "was going to throw something off" and directed Ferrell to "remove it from the tracks". Ferrell saw appellant get on the south side of a car that was proceeding eastwardly. Ferrell, who also mounted the same train but to the rear of appellant, did not see appellant enter a car or throw anything off, but shortly after getting on, Ferrell "saw something" on the ground and "I figured that must be it". Ferrell alighted immediately and saw two boxes along the track with the word "Armour" on the outside of the boxes. He carried the boxes northwardly across the tracks and placed them in some weeds. Shortly thereafter appellant talked to Ferrell and said "thank you" or "something, I don't remember what it was". It was dark but Ferrell recognized appellant's voice. As Ferrell was walking "down Guinotte" he was "picked up" by the police and arrested for "box car theft".

Appellant would have us ignore accomplice Ferrell's testimony on the ground that his testimony was uncorroborated. The rule is, however, that an accomplice is not disqualified as a witness in federal criminal trials. Nor is his testimony, per se, lacking in substantiality so as to render it insufficient as a basis to convict without corroboration. A conviction can properly rest on the uncorroborated testimony of an accomplice if it is not otherwise incredible or insubstantial on its face. Williams v. United States, 328 F.2d 256, 259 (8 Cir. 1964), cert. den. 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739, and cases cited.

There was substantial corroboration of Ferrell's version of what occurred. His automobile was found in the vicinity of the offense. Two men were observed on one of the cars being moved eastwardly, one standing in the south doorway with a pile of meat in front of him, the other on the end of the car; a Mo. Pac. car containing Armour meat had been entered and a part of the shipment removed therefrom; boxes containing meat with the name "Armour" thereon were found where the accomplice stated he had placed them. Appellant and Ferrell were arrested in the area the same night of the occurrence.

We have carefully considered all aspects of appellant's attack upon the sufficiency of the evidence. It is true that the evidence revealed that another Mo. Pac. box car, containing meat, had been entered the same night. There is some discrepancy in the witnesses' testimony as to the type of meat that was found. However, these were matters that were more properly addressed to the triers of the facts. We have carefully examined the record, and are fully satisfied that the essential elements of the offense were established by probative evidence and that there is no rational basis for holding that a submissible case was not made.

Complaint is made that the court erred in admitting incompetent and prejudicial evidence.

Mo. Pac.'s special agent, McCahon, testified on direct examination to his part in the investigation following the report of a box car theft. He had known appellant prior to June 13, 1963. He saw and talked with him at approximately 11:15 that night on Guinotte Street. Shortly thereafter police arrived and took a...