John Phillips McClard Carroll Franklin Simmons, and Verlon Hershel Ussery v. United States

deed) full court’s conclusions constitutes until rebut- the district One of ignored by majority is completely ted. LSA-R.S. 13:4355. Vinton Oil plead Sulphur Gray, 1914, fraud with & La. Frederick failed Co. v. 357; specificity required Gordon, F.R.Civ.P. So. Scott v. 134; (b). special Actually, only fact on 184 La. 168 So. Gumina any Dupas, La.App., 1965, papers shows face of 178 So.2d 291. specify fraud Frederick Frederick fraud relates makes effort to attempted presumptions deceive facts to committed when rebut of valid- alleging ity judicial that all of the the court attached to sales. allegedly mortgaged property, property properly The district court dismissed before, only years $299,000 worth two the counterclaim. And since Frederick’s judicial $44,100. sold at the sale only defense to the suit was the counter- unwittingly exposed Frederick his own claim, properly court district render- appeal: incorporated deceit on in his summary judgment ed in favor of the mortgage copy brief a the act of con- plaintiff. taining mortgaged description of property. comparison A list mortgaged property list shows, property as Frederick sold knew, mortgaged

well that not all of the

property seized and sold. opinion

A basic error Court’s give

is its failure to effect to state law governing judicial sales, required as Phillips McCLARD, John Frank- Carroll law, 69(a). Simmons, F.R.Civ.P. Under Louisiana lin and Verlon Hershel Ussery, Appellants, the creditor does not —as the seems Court think —control the seizure and sale mortgaged property. property Such America, UNITED STATES of eye be seized and sold under the Appellee. court, of a here the United States District No. 18792. Court for District Loui- Western Appeals United States Court of By property siana. law the must be Eighth Circuit. appraised by appraisers, appoint- two Dec. 1967. seizing ed creditor and other Rehearing the debtor. LSA-R.S. 13:4364-65. Denied Jan. The record in United v. Frederick States Dredging Co., No. Western Dis- Louisiana, Frederick

trict shows that signed required “appraise-

himself capacity “Appraiser

ment list” in the Property must, Defendant”. sold offering, its first due after advertise-

ment, bring appraised two-thirds of its Here,

value. LSA-C.C.P. art. 2336. show, proceedings

the foreclosure

appraisers agreed appraisal $60,- property seized and sold. .for

Thus, mortgagee, Frederick, its president, exactly property knew sold, value, appraised knew its brought knew that in excess of two- agreed appraised

thirds its value. carry presumption

Judicial sales

regularity, (or and a sheriff’s marshal’s

appellants. Mc- The Court sentenced Clard to a commitment years. years, to three four and Simmons challenge sufficiency Appellants admission of of a boot and boot worn of an from the floor insur- taken ance was located the same office that building housing bank, the admis- concerning pistol a sion on front of a truck that seat Ussery occupying ar- was rested, al- and use the Government’s leged interroga- leading questions in the tion of witnesses. testify, appellants did not as The privilege, not offer

is their and did Thus own defense. in their stands uncon the Government’s evidence any discrepancies except as to troverted might testimony appear in the incriminating eyewitnesses to ac appellants other and matters tions case. In a criminal relevant a conviction result where there has been guilty, ap jury verdict pellate court must take that view of sup is most favorable to evidence that Gladys Wied, Wied, M. of Milham & porting jury ac and must verdict Benton, appellants Ark., for and filed cept reasonable infer all established Appellants brief. McClard and support the action ences tend supplemental filed brief. jury. Any conflicts Sherman, Atty., William F. Asst. U. S. jury favor of the verdict. are resolved in Ark., Rock, appellee; Little for H.W. Mississippi, Taylor 319 U.S. State McClellan, Atty. for U. S. Eastern Dist. 583, 585-586, L.Ed. 87 63 S.Ct. Arkansas, Rock, Ark., Little was with (1943); 1600 Koolish v. him on the brief. 1965), (8 F.2d cert. den. 519 Cir. 1805, 14 L.Ed.2d BLACKMUN, 85 S.Ct. Before and GIBSON LAY, (1965); Judges. v. United Smith Circuit den. F.2d cert. L.Ed.2d 34 379 U.S. Judge. GIBSON, FLOYD R. Circuit (1964); Koop Appellants, Phillips McClard, John 1961). Carroll Franklin Simmons and Yerlon January Ussery, appeal Hershel from a conviction The that on record discloses approximate entered the United States District hours between m., per- Court for Eastern District of Arkan- a. a. some of 1:00 m. and 3:00 violating Ola, persons sas Title 18 Arkansas U.S.C. son entered by entering deposits bank, of which Bank Plain- branch of First State Deposit Arkansas, by open view, prying insured Federal In- front Arkansas, Ola, had Corporation, front surance door door the bank. Judg- larceny. jimmied intent to commit were marks and there been type doorjamb indicating ment was based on a verdict some open to a one-count indictment on all used to force of tool had been glary follows: door. A combination on the door of is as vault during off, period seen five witnesses the bank had been hammered midnight locking approximately outside braces to the door’s 12:00 o’clock mech- night of anism had around 3:00 a. m. on the been loosened and handle burglary. ap- opened had first observed, the door that lock When green riding pellants been broken. drawers a dark Several tellers’ receptacles pickup truck had been old model Chevrolet removed their black pass- bank, left the floor of the with red cattle sideboards that ing up removed and down on which several desk drawers were also the street the contents “rifled” in a search bank was located. Later nothing up Apparently items of value. drove front empty-hand- bank, occupants taken and first came the intruders left addition, they large ed. driver, “fooled screw- left around the bank windows sledge light ham- around hatchet and a around there a little bit and went together mer, door”; occupants looked with a tool to two of tire the the probably purpose pickup like and wit- served the identified the truck were Floyd, stopped a crowbar. his ness Glenn who had mistakenly pickup, think- car close to the bank was at The located the corner occupants coon that the were some Highway the intersection 10 and Main hunting his, was thus friends of and he Street. An insurance located office was placed position oc- in a to view all building in housed the rear the cupants, except Ed- driver. Witness the bank, part the but was not pickup die Joe Lawrence noticed the operation. connecting bank’s A interior cruising up down the street twice and door between bank and insurance the the which the bank located. Witness agency was so constructed that the door Floyd pickup parked front in noticed the opened could be from bank the side previously seen of the bank after he had it, thinking time, but was locked from the insurance parties. knew the that he agency opened area and could pickup parked in front When he saw this agency from the insurance side with to a.m. and bank around 1:30 2:00 the key. two in- The doors to the outside “fooling win- noticed them around the agency opened surance could be from the “messing door” dow” and also with the locked, inside when and used were deputy located he left find the sheriff to the bank’s custodian as his sole means Ola, him. in he was to arouse unable finishing exit when would after leave Floyd with and talked came back to town key his chores. He did not the have a to vicinity boys the some other the .in premises. bank bank, parking pickup the between his When Queen officials entered the bank at Dairy Conoco station the morning 10:00 a. m. of the same located across street and which were the attempted burglary prints boot were no- no- He a short from bank. distance the part agency ticed in the insurance model in old the individuals the ticed building, the the marks be- visible pickup red side- with Chevrolet truck apparently again cause water had taken been area back the boards come to refrigerator from a got insurance the out of them bank where one the agency spilled room some of it between across over bank and went the wearing the floor. the intruder The other D-X the cafe. The Station and boots made well defined boot pickup several around block two drove the prints agency Floyd on floor— insurance parked close the bank. to visible, eleven boot were four again get suc- to the law and went processed. him, which wakening were There was after which cessful question that the bank had been entered proceeded bank back to the burglary attempted. and a deputy sheriff’s car. area connecting deputy implicating first came The evidence When pickup attempted with the bur- scene he drove pre- We, therefore, fifty steps situation bank have a about appellants all empty. After driv- sented where three pistols and saw that it was ing driving post armed loaded behind the cafe and the office pickup persons running around area of bank saw three filling plate bearing station. truck license area toward the fictitious bank stayed car, early Floyd deputy’s morning, were hours of while in the jumped shotgun coming im- deputy out with a seen from the “fooling” gave pursuit individuals mediate area of bank and running to three “mess- across He command- around windows the street. the outside ing” stop later door that ed immediate the front them but ceased around jimmied. These pursuit when turned been he heard a shot. He was shown to have running area same around and saw of them were later in the individuals when back toward intersection and of the deputy accosted bank fled, indi- in another others tempted direction he at- all sheriff gun stop by firing They apprehended, guilt. them his cation Ussery immediately, apparently hiding air. pistol, with a loaded truck deputy then back went daylight that other two after parked pickup where he morning. prints of Sim- same boot deputy front seat. The ordered design size, fit mons were shown pickup, placed him him under boot the characteristics and wear prints arrest .38 and retrieved a snub-nosed agency in insurance the lying formerly revolver the front seat easily office, accessible area which occupied by gun Ussery. This loaded allows and of the bank interior the and one fired. chamber had been by passage outside an undisturbed McClard and Simmons were agency arrested doors use of insurance the morning daylight that same they after the to but not to the outside were locked together Highway 7, were about interior. They one and one-half from Ola. miles its submitted The Government magnum were armed with a .357 and a en had theory at least Simmons the pistol. appellants The .22 were taken it, burglarize tried to and tered the bank jails separate to FBI noti- and the Ussery accompanied and he was either agent FBI fied. The arrived that morn- McClard, and or McClard and ing, inspected bank im- and made aiding guilty principals as were prints prints of the boot that were found 18, U.S.C. abetting Title under Simmons agency in insurance area. Simmons 2.1 jail was taken to the Russellville interrogate attempted him, the sheriff direct rights but after his advised circumstantial, strongly indicates statement, refused to make a attempt guilty appellants of an were night sheriff that took use his boots to jury is burglarize at Ola. The the bank as evidence. The Government submitted credibility wit judge of the showing boot connect factual issues nesses and of the agency found in the insurance area were at appellants undenied size, design of the same and had the same tempted burglarization bank. right wear characteristics as the boot upon reviewing a judgment entered a Simmons. The sheriff also testified that jury guilty verdict of the license on old model Chevrolet favorable in the most view light tending convictions, support fictitious. “ done, Principals (b) an to be causes act 2“§ Whoever n whichif directly performed “(a) him would Whoever an commits offense States, against States, aids, against abets, the United an the United be offense counsels, punishable induces, principal as commands, procures is also a commission, principal. its such.” may including consistently employed all inferences which be stance is as reasonably support person drawn basis an inference that (Koop jury’s United an conclusion. v. act with which circum- these 1961).) States, (8 stances 296 F.2d Cir. are associated.” Wigmore relevancy notes “Their further singles strongly The evidence given patent for so that no occasion is perpetrators of this as * * rulings law; Downey fleeing offense, and their conduct 263 F.2d 552 They guilt. were the law is indicative of 1959); Patterson boot all in the bank area and Simmons’ 1933); Sheppard agency. print places him in insurance State, Ark. 394 S.W.2d They engaged appeared an all to be (1965); (1954). Anno. 35 A.L.R.2d 856 burglarize attempt No other bank. introduced or received evidence was taken from a The boots actions, explain the trial their suspect arrest an to a lawful incident standing their actions alone with investigation for an crime and the entry suf into the bank forced with the com connection the accused to find ficient them mission the crime. Harris v. beyond a doubt. reasonable 331 U.S. L.Ed. 1399 This is not testi The boots worn Simmons monial not come within does time of the boot his arrest and protection Fifth Amendment prints processed area from the insurance against Clothes, fea self-incrimination. clearly admissible. con including im and fingerprints, tures tends constitutional some violation his suspect’s plaster printing of foot rights and also no foundation was purpose of cast identification laid for admission of this evidence. permissible steps proper in are all relevancy bootprints ob vestigation ac offense and vious. seen near the bank Simmons was cused’s connection therewith. charged prior no to the offense and was 2265, (Mc Wigmore Evidence, on § running of from doubt one men seen Naughton 1961). rev. deputy sheriff the bank at time the identifying piece an investigating suspicious boot is conduct was apparel is of worn and companions. the accused of When Simmons and his any later, far Amendment removed Fifth apprehended was hours Simmons protection against town, self-incrimination. about and one-half miles from identifying physical Even characteristics wearing made which was the boots permitted relevant. prints evidence when boot or in the insurance tracks Brennan in Gil agency As reasoned Justice This under area. evidence California, bert of 388 U.S. places v. State circumstances in the 266; L.Ed.2d accepted 87 S.Ct. bank. is an rule of It (1967): identifying that, purpose for the of guilty party, of as the accused privilege only compulsion “The reaches correspondence foot of the accused’s communications, of ‘an what accused’s wear or tracks to or tracks take, they might and the form ever near the scene of crime is admissible. compulsion responses of which are also fingerprint This similar compli communications, example, for usually purpose for admissible subpoena produce one’s with a ance identifying of offender the accused as the ‘compulsion papers,’ As and to offense. connect him with the suspect or accused source makes a ’ Wigmore Evidence, * * * noted in 1 on § physical of “real or evidence” (3rd 1940): Ed. California, 384 of Schmerber State presence upon person 757, 763-764, “The or S.Ct. premises articles, fragments, stains, hand 16 L.Ed.2d voice and 908. One’s resulting tools, any writing are, course, or circum- of com- other means follows, of this under the circumstances means seat It munication. probable deputy sheriff every compulsion an however, afforded the had that a been crime cause to believe or write com- to use his voice accused presence. in his committed was pels cover within the a communication handwriting Ussery seizure and the The arrest privilege. A mere proper pistol a warrant were without exemplar, of his the content in contrast to subsequent body legal, admis written, was like the voice testimony con identifying itself, physical into evidence char- sion is an Busby cerning pistol. protection. [Unit- outside its acteristic 218, States, cert. Wade, supra, 296 F.2d 328 388 U.S. ed States v. 1147, 8 222-223, S.Ct. L.Ed.2d denied 369 U.S. L.Ed.2d 1149.]” Appellants question the next leading questions were Some Ussery’s re seizure of .38 snub-nosed for the Government counsel asked during Ussery was volver that was seized when case, when trial this ap placed under arrest. The revolver objection properly made ever peared plain lying front on the view objection sustained and Government place truck at a seat asking against lead counsel admonished previously Us had been concealed leading questions questions. Oftimes sery’s body. fired One shot had been preliminary and collateral are asked gun and its and admis seizure any expedite trial. matters permissible sion into evidence were leading questions is the control event charged. relevant the offense trial discretion a matter left to the knowledge burglars common judge. discre of this Absent abuse predatory practices often those intent prejudicial tion, error can be no there carry or their command loaded have at appellants in this case have and the guns. guns These concealed are often rulings ex shown mostly per associated with and used erroneous, judge let perienced trial petrate criminal acts. This is but anoth prejudicial. alone Stahl significant in incident in overall er vestigation Wig 1944). 144 F.2d 909 burglary attempted 1940). (3rd Evidence, Ed. more of the bank. The arrest of legal Appellants trial and had a fair investigation attempted properly submitted to issues burglary carrying a concealed charge explained to weapon. judge. di- trial The the clearly legality circumstantial, an arrest made a rect and by upon law in absence determined state the the submissible applicable rendering of an federal statute. in a verdict warranted Re, 581, 589, prejudicial guilty. Di has been States v. error No 92 L.Ed. 210 Under trial S.Ct. in to have occurred the shown re Harris of the supra, think verdict this case. jury We judgment is stand, volver could seized as an be incident should or the arrest even as an instrument affirmed. carrying the crime itself of concealed weapons. Arkansas As discussed (dissenting): Judge LAY, Circuit State, 237 Ark. case Williams majority opin- (1964), I concur cannot the seizure S.W.2d any man by ion. I do not believe articles that were seen officers any permissible crime convicted seized as a rea should be truck and only suspicion government proves sonable search is not violative totally proper- guarantees against fails to circumstances Fourth Amendment persons ly prove Here identification of those searches and seizures. unreasonable charged. sight Ussery’s pistol front on the respect majority’s ways 7, approximately all 10 and With due five blocks

experienced judgment, the record fails from the bank. At no time did he iden- tify way people pickup identi- to show the essential or even state many one, persons, with the how fication of the three defendants more than if charged. identify Individual identification there. At crime no time did he appellants. neces- of each the three defendants identity sary, lacking. totally Mass DR. JAMES Com- PENNINGTON. government’s is even obscured ing hospital home from the at 1:00 a. m. very requir- proof. The law asks little night burglary on the same he properly prove a pickup saw an old with red sideboards. consequence case when the ultimate yards He said he saw it a distance of 100 liberty. deprive be to man of his or life in his rear view mirror. Later saw he willing Courts allow should not be con- lights of “some kind of near vehicle” victions derived where inferences are the bank when he was several blocks only suspicioned from and not facts away. Obviously, at no time did iden- he proved. Regardless how zealous we are tify appellants. good proper to have communities Age WILLIAM C. BAKER. He 18. enforcement, criminal law have con- sitting Esso station across tracted with all men the rule law that the street near the bank. He testified presumed proven to be innocent until green pickup truck, that he noticed a dark by competent evidence to otherwise. be go black, main street twice rights depend The basic of all men free about 12:30 At or 1:00 a. m. no time did upon principle. Each the defend- identify appellants. pleaded guilty. ants has not Each of Age HERBERT M. 17. LAWRENCE. proven participated them must to have He DX Eddie was at station with charged. Unexplained pres- in the crime approximately Joe Lawrence at 12:30 vicinity burglarized ence of a bank 1:00 a. m. He saw a dark twice enough. is not night. It had sideboards but majority opinion reflects that also notice color. said he saw He were identified wit- five pickup. Ed Isom’s At no time did he midnight nesses to around 3:00 identify appellants. night burglary. a. m. the I re- spectfully Deputy submit OTT ROSE. He was record not Sher- justify does iff. He was aroused the witness this conclusion but to- tally Floyd any competent absent around 2:00 a. m. and drove down- identifica- lights tion town. He shined his between whatsoever. Witnesses called DX state and station and the across the street their evidence fol- are as cafe lows: from the bank. have heard He claims to pursuing a shot while three unknown Age EDDIE JOE LAWRENCE. persons. After returned this chase he sitting He was DX at a station across the upon opening to a approximately street the bank at ly- appellant door discovered boys. 1:00 a. m. with four other He gun ing down There was a inside. pickup stated he saw a dark Chevrolet Ussery. the seat. Rose then arrested pass “with up red sideboards” and down Deputy The Sheriff did not examine the main of street Ola. At no time gun it had at that time to see whether identify appellants he or state even day gun been fired. The next was many persons, one, how more than if empty. and one examined chamber pickup. were in the daybreak appellants At discovered Mayor EDWARD ISOM. He was the McClard and and one-half Simmons one Ola, returning highway. of night who was from a miles outside town hunting approximately of fox posses- 1:10 a. It was shown both had pickup guns. m. He saw old Rose with “red side- sion of loaded time first high- up- boards” at the Y intersection identified argument government ad- oral is no evidence on arrest. There identify properly being had failed to recognized mitted it chased. the ones them as Floyd pointed persons wpon only whom two witness one This leaves as seen at 12:30 courtroom its state must rest identifica- However, pickup parked car wash. at a tion. government suggested two identi- approximately At FLOYD. GLENN MeClard and fied were Simmons. into town 1:00 a. m. he came 12:30 or appellants’ coun- states that Pennington. saw a dark Dr. He look for Weid, implied sel, much in oral Mrs. as green pickup wash with at the car argument. I know of no rule which allows thought up. He was some its hood stipulate parties to counsel for the even ap- hunting He buddies.” his “coon incriminating appeal facts on proached three and observed proof are omitted in below. otherwise identify only persons He could it. appeal taken, post If con- further or trial, in this re- and of them at two proceedings instituted, viction following gard the record is what record is of such oral admis- available government’s proof reflects to be the authority sions? No is offered to show identity: right stipulate to facts counsel to “Q. you inside? Did see who was might in a case where the evidence other- good, I of the fellows “A. seen two be insufficient or wise incriminate good, I didn’t see real other one convict the accused. The record him, him real I but I didn’t see saw properly presented. as We do not sit good. technicality” “citadels of we re- “Q. you identify Could them? quire proper identifications criminal process Yes, cases. Due “A. sir. demands it! When multiple parties together, par- are tried now, “Q. you identify them Could tial identification cannot all de- convict in the Courtroom? suggests fendants. To allow Yes, “A. sir. joint per- indictment of co-defendants “Q. youWill do so? upon proof mits conviction only one. See Butler v. right sitting guys “A. The two 249, 254, 317 F.2d 6 A.L.R. there, big setting 3d 582 where we said: in the middle. outside the other dealing “The authorities with the “Q. middle? one was in Which general subject of identification of the right. “A. The one on accused, particularly with the quantum quality proof required “Q. You driv- couldn’t see who was to establish this element of a criminal ing? case, uniformly hold good sir, get No, “A. I look didn’t identity person toho committed at him.” is essential to a convic- offense (Emphasis ours.) tion.” testimony as- From this can also Dawes v. United identified sume that the witness two 1949); State, Thompson occupying three defendants Ga.App. 28, Ussery Me- S.E.2d truck. It was either (1967), Simmons, Clard, per- and cases collected in 23 C.J.S. 920, p. Criminal haps Law 643.1 it was MeClard Simmons. go State, and a woman inside. The next morn- 1. In Alexander 164 Tex.Cr.R. (1957), a. m. same 1:30 she identified the a woman 302 S.W.2d 414 story apartment driven in a “sus- 1956 Chevrolet in who lived a second drug picious” during drug manner in front of the stated that the over a store appellant get August out of store. She saw 5 she saw a 1956 afternoon drug up drug car, walk over to the door of convertible drive Chevrolet appellant man Later and another store and heard the door rattle. store and the Floyd approxi- appellants prior that at identification to Mr. stated mately per- 1:30 to a. m. saw two their arrests. 2:00 get pickup out from the same sons Floyd proper If assume made a identify not earlier. He could observed identification McClard and Simmons persons got They in who were out. wash, evening earlier in the at the car They “fooled front of the bank. first identify not the fact did remains he They bank. around a window” driving. approx- person third This was then came around to the bank door imately (It interesting ob- 12:30. is according him: then to Floyd pick- servation that confused they “A. I were couldn’t tell up coon with one owned some fellow doing, just messing Mayor the door. with pickup. The hunters. He drove a had one. were several There

“Q. Messing with door? area). “A. Yes. My guilty. may well be Defendants **-»*-»* complaint is that evidence offered “Q. you tell, Floyd, Mr. wheth- Could prove far that did not it. It is better they touching er the door? were guilty go than to condone conviction free that; they “A. I couldn’t tell any suspicion I think man on alone. just fooling you around, the door important it is to consider the evidence know. proven par- basis of the individual “Q. away you How far ? alleged: ticipation in the crime guess, block, “A. I a half a I was McCLARD. The conced- something that.” like argument in evi- ed oral that They away pickup. in then drove of McClard is that he dence Floyd waited an hour or stated he until day next was found with Simmons the Pennington, so, supposedly call Dr. gun. with a loaded There is up and then this same drove night McClard was near bank on the person got and went unidentified question. Assuming in DX station the cafe. between the proven guilty by competent buildings are across the street These presence with him of McClard from the bank. went around following day Mc- to convict sufficient dropped the block and then off another commentary necessary to Clard? No Floyd person. It was at this that time “guilt by condemn association.” get Deputy When went Sheriff. recognized of law under Amer- not a rule they back turned their head- came justice. that, ican “In order The law is lights persons DX on two between the to aid and abet another to commit Floyd station and the cafe. did not hear necessary defendant it that a crime gun go Deputy said off. The Sheriff himself with some sort associate and heard another. After the he shot his venture, participate that he as chase, they pick- went back to the bring about, something that he wishes up Ussery lying down in the suc- that he his action to make it seek front seat. Hand, J., ceed.” Learned Peoni, I com- submit the above constitutes a 100 F.2d States v. summary approval plete total evidence cited away appellant car drove with two men ‘looked like’ that enough it. examination: she woman in On cross could see well ‘to state “ * * * say any were,' positively people who [S]he unable those positively identify two men and one whether there were could not she appellant being there,’ one man ‘as that she woman or two women night, I circumstances ‘all could not know under all the automobile persons,’ appellant was three she could whether ‘was there see ” persons whether tell that occasion or not.’ 302 S.W.2d wearing glasses, man who 415-416. drug the street store insufficient. crossed The identification was held

505 anyone Nye Supreme v. & Nissen is there he Court that assisted 619, States, burglarizing fac- bank? All these United (1949). suspicious also McClard. See tors make 93 L.Ed. one S.Ct. F.2d rest a cannot Diaz-Rosendo v. United But criminal conviction 1966). case, probability suspicion (9 upon The latter let alone even Cir. case, smuggling speculation. remon also narcotics that, be strates “Guilt cannot established lying down He was USSERY. 944. 364 F.2d at mere association.” allegedly pickup was which earlier Re,Di 332 U.S. 581 v. See States occupied and a McClard Simmons 210; Unit 92 L.Ed. S.Ct. person. infer- third Is a reasonable it Garguilo, F.2d ed States person? If third that ence that was (2 1962). 253-254 Cir. was, lead does this we assume he in was to? Can we further assume he Notwithstanding prejudice pickup unidentified two jury, possession by McClard got in front of bank ? What men guns, hardly prove tends to do? two men if he were? What did the night they burglary committed lighted up all did he do? What Moody States, 376 before.3 Cf. boys were around the bank. Several 1967). (9 F.2d 525 Assume the Cir. together No tools were across street. Floyd proper witness identifica- made two hands of the or described in the seen tion, and McClard was with Sim- seen “messing They near the bank. were pickup mons car at the When- around” the door and window. wash about 12:30 a. m. Later been, they not were this have ever morning two men seen unidentified any way touching door. observed in getting out and back into the same boys “fool- At the several same time infer, we near the bank. If Dairy Queen. DX or around” near the two, must, that McClard was one True, prove? bank What does do we not assisted in have infer he assuredly burglarized, the break-in? Is this inference got into men back time. upon an infer We cannot inference? They not enter left. probatice proven.4 from a fact not presence un- of two bank. Does mere Again, one hour or so uniden- later three es- in front of the bank identified men tified men were seen near the DX station guilt of this defendant? tablish Deputy and cafe and Post Office Again Floyd Sheriff. saw two. States, 113 U.S. Colemanv. United through processes rea- of inductive App.D.C. 306 F.2d 751 soning, we along are asked to conclude convicted There, the defendant was McClard was of those men. But what housebreaking as with a co-defendant Friendly Judge 310 F.2d 254: states at sufficiency 2. axiomatic that jurors plain “Never were told in case, every to sus- criminal presence words that mere conviction, judged tain knowledge part on the of Macchia actually respect offense would not suffice unless were also alleged F.2d 712. in the indictment.” beyond convinced a reasonable doubt doing something that Macchia was upon proven based must be 4. “Inferences par- forward the crime —that ticipant was a judicial notice of which or facts facts merely knowing rather than inference cannot taken and one must be spectator.” upon inference. To another be based trial remanded for new finding the circum sustain a fact of Macchia. proven conclu must lead to the stances certainty and must sion with reasonable In Wood v. United 342 F.2d 708 probative force as to create be of such larceny 1965), a conviction legal basis for a inference and not from interstate insufficiency. was reversed for carrier suspicion.” Judge Ridge mere Wesson stated in the “ * * * opinion that, 1949). course of the 506 evidence, (1961). the facts unless in weakest of defined 22 D.C. Code as to the motive conviction are known The Circuit Court affirmed case, prompts separate it. See Vick of the in a accused which co-defendant States, noting F.2d 228 suffi- there that the evidence was Hickory (Britton course, v. for that v. Cir. cient conviction 408,16 U.S.App.D.C. States,

United 160 U.S. S.Ct. United ; Alberty (1896) (1962)). United v. 301 F.2d 531 In the Coleman 40 L.Ed. 474 case, however, re- the conviction was 162 U.S. S.Ct. Wong versed, saying: (1896); Sun L.Ed. with the court Britton, ‘The co-defendant whose con- makes What 9 L.Ed.2d affirmed, viction we was shown have present in the tenuous the evidence more building to have in the been proof in surroundings no there is housebreaking occurred, but the evi- any present the three bring ap- dence failed to to this home being chased. the ones pellant that he aided and abetted either extremely time at the doubtful And it is by acting Britton ‘look-out’ or that any had been crime of the chase that breaking participated any in actual anyone. had The bank committed entering building, of the essential by the observation continued been under charged. By elements of the offense period Floyd except for brief witness using police dog to follow scent any anyone at did not see of time and he appellant scene, was located near the door. the front time enter effect, but neither the to that placed of other Ussery nor other him have been charged building crimes; with bur- time in established that but he prove it. glary he had collaborated with Britton in True, gun, crime itself. he was he had a plate, license truck a fictitious with “The find- were not warranted in being sus- shortly men were after three ing appellant guilty beyond a reason- questioning. But pursued piciously for able doubt.” guilt crime of the his what is shown as to so, As was stated ex rel. if charged? States And His association? Argento Jacobs, F.Supp. 877, ? What whom —McClard with (N.D.Ohio 1959): Per- do ? McClard What did association ? alleged with Sim- haps association his person “The mere fact that a is seen proof of association? But what mons? vicinity in the of the commission of a so, do? And if crime is not his sufficient evidence of complicity in said relating crime.” to Sim- The case SIMMONS. singular proof rely upon mons must Ussery was never identified until comparison foot- FBI of Assuming prob- was found in the truck. insur- prints tracks made able cause the arrest of prints from Sim- taken ance office investigation, prove this does not bur- no There is after arrest. mons’ boots glary of bank. He was found sus- prints. admissibility of the doubt picious circumstances, which he has again the However, are these try explain. burden to has no He They do kind evidence. weakest prove burden to that he was not one identifying stand side side that chased. If can infer fingerprints or blood characteristics was, guilt prove testimony that he re- government’s does this ? Guilt type. The opinion FBI Contrary majority opin- what? flects bootprints agent from Simmons’ ion, they running were never seen design size and of “the same away boots from the the bank.” “area texture had the same wear were, flight if is but But appellant’s to have existed shown worn right.” of shoes tracks Similar * * * well is too [i]t shoes. But sub- alone to stand accused cannot frequently half shoes are known that proof of sufficient stantiate equally soled, known well and it is trial.5 criminal prominent therein. tacks are often regard, v. case of Warren In this commonly that known fact is further a 132, 218, State, 106 S.W. 52 Tex.Cr.R. or run down are often of shoes heels following (1907) anal- contains the 133 off. worn ysis: of common matters “These dangerous precedent, would a “It * * knowledge *. notoriety be, however, appellant this believing, this we reverse So lay down a rule'hold- for this court to to insufficient because ing plus presence alone, a that tracks 133. support 106 S.W. the verdict.” a two miles the scene within State, Tex. 163 v. g., also Harris crime, justify e. in affirm- would a court (1956); 519, State ing Cr.R. S.W.2d a tracks show that case. The 110, Murphy, 356 Mo. S.W.2d making pair party had on a same State, 130 1947); (en Ennox v. banc half soled. The shoes that had been 475-476 Tex.Cr.R. S.W.2d making the heels of one of the shoes Harding State, (1936); Neb. off, tracks was run down and worn 241 N.W. prominent, or tacks sev- several were ap- eral tracks indentations proof con- there What other by peared promi- to have been made cerning of which None exists ? peculiarities are nent tacks. These I know. distinguishing government admitted that char- 5. The witness ment demonstrates good photo- like is a deal wear shoe wear boots acteristics of Simmons’ “possibly persuasive graphs. could on a tire and that he sounds tear Such evidence between a boot- not print tell” difference there can that until examination shows by logic consistency similar shoe those taken a testi- or to this be no mony.. compa- floor of insurance from the ny. voids The red marks show v£here attempted point government correspond appear boots and in Simmons’ course, distinguishing print. marks of wear made Of with voids correspond always correspond. which ex- from Simmons’ boots This is does not plained prints. by How- same marks on the marks that the statement ever, cursory prints that examination discloses the blur- are filled on the overlay print boot ring from Simmons’ used the fluid characteristics possibly prints. taking be the same shoe that cannot are told We print photographed picture appear in Exhibit made the on the the voids where proves identity, back Examination that shows not it is do overlay possibly lugs process explained four of the cannot in which question. Many The indistinc- marks photo- fit on the lift red of the are lifted. obviously account tiveness of the cannot from the traced are lift print appear graph size The heel of the same qn different size to be boot. overlay hardly overlay design, actual whereas the fitq Exhibit pattern. pattern print a different within print distinctive demonstrates enlarge Any over- could red marks number of heels of the itself. Some print lay general shape the arrow such as fit same on Exhibit lug the left to cor- said the second same could be in Exhibit 25. The photo- respond, overlay void on the Ex- not with a Exhibit 23. On print. graph explain attempt but with the blurred is made to hibit 23 no testimony true the of this dif- effect made the obvious heel mark only are for finder these exhibits surmise it One can ferent shoe. only per- “burglar” fact. But where another was made person. man and haps two al- available to convict Assured- an innocent third leged ly, rest on such in- associates were of McClard the boots proof, custody this court not has conclusive constructive within similar prerogative duty to set the ver- Exhibit 24 for examination. govern- overlay upon dict aside. which the has summary, my speculative opinion Nor it is ised on inferences. can falls far more than short the fact there exists Ussery, individually satisfy quantum speculative McClard or Simmons inference collectively burglarized proof necessary defend- to convict a the Ola bank. burglary Various trial. tools ant criminal were the authorities inside the bank. Water States, 348 Holland v. United Since allegedly glass jars taken in 99 L.Ed. 75 S.Ct. yet refrigerator, fingerprints no longer re- (1954), courts federal any of the accused offered from give quired separate con- instructions glass. Only the tools or the inconclusive cerning U. circumstantial evidence. bootprints presented. 139-140, teach- 127. The S. at commonly province It is not the that case this court weigh government thereby accepted where the evidence deter- burden guilt Ordinarily, proof upon mine is circumstantial evi- innocence. based questions of identification of accused dence is no different from its burden jury are left to the to cases is evidence. determine all testimonial there Thus, the facts and circumstances submitted. the rule that the burden every However, requires courts must their exclusion exercise responsibility sufficiency hypothesis to review that of reasonable government’s longer evidence, acceptable. it circuits is Other attempts suspicious adopted to weave mere cir- have since new standards guilt. weighing proof cumstances into a web of do to deter- We circumstantial upon sufficiency encroach the function of the its to sustain convic- mine jury by setting prem- pre-Hol- aside convictions tion.6 Some still adhere to Paraphrasing Luxenberg, 6. these rules: v. 374 doubt. United States including 1967). (6 Whether evidence reasonable F.2d 241 Cir. inferences is sufficient to warrant a to con evidence sufficient Whether jury guilt beyond beyond to jury conclude a reason a doubt of vince a reasonable Dirring States, guilt. able doubt. v. United 328 v. At defendant’s nip, United States (1 1964); 1967). F.2d 512 (7 Cir. Parker v. United 374 F.2d Cir. 723 May 22, Whether, viewing 378 F.2d 1 Cir. the evidence light government, most favorable to the Whether there exists sufficient on each ele- is substantial evidence there evidence, taking jury substantial the view most from which the ment the offense government, support guilty favorable to be- could find that the accused is Schipani, yond verdict. United States v. 362 Pauldino v. a reasonable doubt. (2 1966); F.2d (10 825 Cir. United States v. F.2d Cir. Aadal, 1966). (2 368 F.2d 1967). Cir. pieces only Whether all of evidence circumstantial evidence ‘Where against defendant, together, involved, taken it used to be stated strong enough jury a make case to let a to sustain conviction negative every guilty beyond hypothesis find him reasonable a save Also, guilt. doubt. But in the Holland case whether there is substan Supreme said the bet- evidence, Court taking tial the view of it most simply properly to instruct ter rule government, support favorable to the doubt, expressed the on reasonable Giuliano, verdict. United States v. instruction is view that additional 1959); (3 F.2d Cir. confusing In the case and incorrect. Stirone, (3 States F.2d was on the evidence bar there 1962). Cir. reasonable doubt the record a Whether construed most property; indeed there Hiet took the favorably prosecution, for the was such that he no evidence whatsoever jury might away. that a find the defendant it Without took it or carried any beyond connecting guilty a reasonable doubt. United Hiet whatever Wallace, missing property, 300 F.2d I think States 1962). necessarily (more than a doubt there is one, think) there is sufficient evidence to took Whether that he a I reasonable away. permit trier of facts to find the de- The doubt it and carried it one; guilty beyond a not a visceral moral a reasonable fendants by distinguishing Perhaps rule, apparently one or land all the defendants guilty. applying only are I do know. Holland case as On this record, given speculate. I trial court.7 can If instructions guilty, certainly I do not know when Gregory In burglarized these defendants the bank. pointed out Perhaps it was after done separate for circum- there is no rule arrested, appellants. two the other evidence,8 affirmed a con- stantial any event, proven. Until it was not grounds viction on that substantial emotional distrust becomes substitute guilt beyond tending prove law, presumption for the rule of was introduced. reasonable doubt every person persist; innocence shall adopted appear would have that we group mere association or identification majority conformity rule with the competent guilt; shall not be evidence of other circuits that where reasonable and the failure of man to take the minds can find substantial prejudice witness stand shall not him in tending each element of offense any way.9 many laymen Today feel these beyond show accused to great protection rules offer too doubt, reasonable courts should sustain guilty. However, it is the tested ex- a conviction. perience of law that constitutes present case, taking In the all of the negligible exchanged price together, facts and do circumstances I protection rights innocent not feel there sufficient exists everywhere. man finding beyond to sustain a any reasonable or all doubt of the de- I would reverse and remand for fendants. acquittal of each direction of defendant. record; upon doubt the lack of essen- rely upon might prefer those who legal presumption tial creates the doubt as a innocence which one, gives every judgment and not law wish to matter. So the re- be every be one who It witnesses. States, versed.” Hiet United stand, safely can the witness venture on U.S.App.D.C. 313, 504, 365 F.2d charge though entirely innocent against timidity, him. ner- Excessive 7. Whether inconsistent with attempt- facing vousness when ing others every hypothesis reasonable of innocence. explain of a sus- transactions States, Thurmond v. United F.2d picious charged character, offences (5 1967). Cir. against him, will confuse and em- often Whether reasonable minds could find degree barrass him to in- such a as to every excludes reason- prejudices crease rather than remove hypothesis guilt. able Thom- against every one, him. It how- States, as v. United 369 F.2d honest, ever who therefore will- would (9 1966). Cir. ingly placed on the witness stand. statute, in tenderness to the weak- States, 8. See also Wood v. United 361 F. ness of those who men- causes (9 1966). However, 2d 802 Cir. might post-Holland tioned refuse to ask to be wit- court in cases has at least ness, given approval particularly rule, they may twice Sykes to the old see have degree compromised by United 312 F.2d been in some 1963) first Wood v. others, their association with declares the failure of a defendant 1965). request criminal action to to be a wit- 9. important presumption ness shall not sometimes to recall create Mr. Justice against Field’s admonition: him.” Wilson v. “* * * act [18 U.S.C. [T]he 149 U.S. regard 3481] was framed a due also L.Ed. 650.

Case Details

Case Name: John Phillips McClard Carroll Franklin Simmons, and Verlon Hershel Ussery v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 8, 1968

Citation: 386 F.2d 495

Docket Number: 18792

Court Abbreviation: 8th Cir.