*1 Carolyn HENDRIX Norman John Appellants, Torbert, Sue America,
UNITED STATES Appellee.
No. Appeals Court of
United States Fifth Circuit.
Jan.
972
ed, falsely certain made and checks in violation of 18 U.S.C.A. § counts Government abandoned all except 7, 8, appellants 9 and 10. The four of were tried and on all convicted these a sen counts. received forty-two appellant, ence of months thirty given Torbert, was a sentence of general and months. The sentences were statutory a are single limits for within the may count. therefore Sentences on be if sustained the convictions upheld. count are v. United Greene States, L.Ed. 358 U.S. 79 S.Ct. 340; States, 5th 2d Fowler v. United Cir., 1956, 695; Morales Cir., question on 762. The substantial appeal sufficiency evi appellants’ mo withstand the dence to acquittal. tions for conclude We jury for the there was sufficient guilty a Hendrix. to find verdict of as to to war There was not sufficient evidence charge against rant the submission of the jury. Torbert to the co-defendants, Huey L. Two Sykes, and David had entered Shelton guilty pleas of as to certain of the counts testified on behalf of the Gov- fairly testimony was ernment. Shelton’s complete and almost sufficient itself warrant submission of the case jury. had a severe Hendrix to the lapse memory testimony con- value to tributed little of the Govern- Haas, Mobile, Ala., ap- M. Thomas than the case other essential ment’s pellants. checks were carried in Hendrix’ that the Jansen, Jr., Atty., R. U. S. Wil- Vernol Mobile, Alabama, from automobile Pascagoula Kimbrough, Jr., Atty., Asst. U. S. liam A. all four of where them were Ala., appellee. Mobile, cashed. TUTTLE, Judge, and Chief Before testimony From Shelton’s * Judges. JONES, Circuit POPE Shelton, find a former em- Corporation ployee of the Jim Walter Judge. TUTTLE, Chief Mobile, into the broke office and stole imprinted eighty appeal forms is an from a This con bearing company appellants name consecutive and sentence viction charging numbers, four that the checks on an indictment counts four causing transporting, were were or convictions included them transported, numbers; aiding abetting four that he these took or within belonging causing transport- trailer transporting or these be
*
sitting by designation.
Circuit,
Of the Ninth
presence
there,
Hendrix and
All
$192.06.
four of the checks are
signed
woman,
signature
Torbert and
and another
purporting
Wayne
A few
delivered
Hendrix.
the checks to
L. Tullos.
typewriter and
hours
later he borrowed
Sykes’s
From
took
then made
toit
the trailer. He
*3
given
following
Early
facts:
in Jan-
agreement
Barnett
with
W.
one James
uary
of
Hendrix, Torbert, Sykes
license,
procure
to
from him a driver’s
and one Jean
Mobile,
Stain drove from
Security identification, club cards
Social
Alabama to Pascagoula, Mississippi,
Barnett,
re-
and
credit cards
to
issued
Hendrix’
taking
automobile
of
a number
give
promise
turn
Barnett
for
to
$150.
Jim
Corporation
Walter
cheeks with
He
to Hendrix
took these credit cards
them. The four
by
checks covered
out,
and told him
checks
how to make the
four
bearing
indictments before us all
giving
Wayne
L. Tullos
him the name
the name of James W.
payee,
Barnett
signer
of
for
the name
an authorized
purporting
and
signed
on behalf of
that he knew
checks. Shelton testified
the Jim
Corporation by
Walter
Wayne L.
by
of
was
au-
man
the name
Tullos
Tullos, were
Pascagoula.
cashed in
signer
Cor-
thorized
Jim Walter
for the
These cheeks were drawn on the Central
poration
but
remember
he did not
Branch of the American National Bank
Wayne
name.
L. Tullos
first
The name
and
Company
Trust
of Mobile and were
he said was fictitious.1
presented to this Branch
pay-
Bank for
Approximately
days
Payment
later,
ment.
two
accord-
stopped
had been
on all
ing
testimony,
to
Shelton’s
he
of them
talked
were returned to the
any
Hendrix to see if
stores
of the
had
cheeks
that had cashed the
been
Sjdtes,
cashed. Hendrix
him didn’t
checks.
told
he
who failed to remember
checks,
everything
want
cash
except
to
that Shelton
his own acts on that
get
day
should come back and
great
them. But
failed to remember a
deal
trailer,
when he went
to
did,
back
of what
Hen-
he himself
testified
he
gave
approximately thirty-five
drix
him
took a check
pile
out
of
of Jim Wal-
lying
checks and said that all the rest of the
ter checks
behind the back seat of
destroyed
kept
checks he had
or
or was Hendrix’
automobile
cashed it some-
going
destroy
Pascagoula.
them. He also
returned where
pos-
There
no
Bush,
proof
an identification
which,
of one K. C.
which
itive
as to
any,
if
of the four
previously
upon
had
Shelton
furnished
he
checks
which the convictions were
did not return
by Sykes.
the Barnett
identification.
the one cashed
He had
got
typewriter
pleaded guilty
Shelton also
back. Al-
to Count 10 of the indict-
proof
was tendered that
the ment which dealt with cheek No. any
prepared by
particu-
course,
checks
plea
Of
guilty
$242.50.
of
typewriter,
lar
to be noted that all
is not evidence
either Hendrix or
four of the
on which
checks
the convic-
'of the
Torbert
commission
them of
ingredients
type-
any
were had were filled
on
tions
out
of the
of the offense ad-
payable
all
Sykes,
writer
were made
mitted
Wharton’s Criminal
Evidence,
James W. Barnett.
are
There
several
12th Ed. 215
§
typographical errors that are consistent
in which the
manner
Government could
throughout,
spelling
hope
such as the
connect Hendrix with the act of
“Janurary”
month
and the word “nin-
one
of the
the in-
ty”
on the face of three of the checks
dictment
of the witness
Corlew,
were made out for the
sum of E. A.
who testified that he had
testimony
point
out,
at this
as fol-
made several of them
and left him a
copy
lows:
one
handwritten
checks to
“Q.
happened
go by,
Tell us what
turned
and left
around
you
approximately
between
and Mr. Hendrix.
trailer at
thirty
or
seven
seven-
explained
exactly
night.”
“A. I
to the man
how
out,
make
because I had
We can find
in the
at
no evidence
No. 5127
$192.06
cashed check
Pascagoula.
permit
properly
he
record
When
that could
Market in
Town
guilt
in
court-
or
saw in the
submission
the issue
was first
if he
asked
appellant, Torbert,
presented
nocence
jury
person
the cheek
who
room the
here,
right
said,
con
“This fellow
the absence
necting
mistaken”, pointing
Hen-
or
her with the
of one
I could be
wrong,
said,
presence
more of the
Her
“I could be
He
checks.
drix.
then
insight
checks,
my
but,
when
Shelton delivered
blank
estimation
typewriter
he was
and the identification
the man.” On cross-examination
presence
cards
in the
of his identification.
to Hendrix
her
asked if
sure
he was
trip
answered,
car
not be
Pasca
“I would
from Mobile to
The witness
knowledge
goula, might
He
her
fair to him.
well show
too
I want to be
sure.
*4
”*
* *
undertaking
very
that a
afoot.
him.
criminal
was
much like
looks
put
recess,
Then,
counsel
But
facts
defense
these
do not show that she
a
participant,
principal
and a
time
or as
stand the
either
the
second
a
Corlew on
during
abettor, Nye
had
recess he
an aider or
v.
the
& Nissen
that
established
States,
613,
pointed
United
to Corlew
S.Ct.
out
336 U.S.
69
David
766,
“Q.
ask
919;
Now I want to
93
Gar
L.Ed.
asked
United States
then
you
guilo,
who
Cir.,
man
been the
2nd
could have
975 charged how to make checks out and the later abettor, had been as an aider or appearance typewritten necessary it showing of the checks in there be evidence finding form, would warrant an offense to have been commit at principal cheeks had been made out ted principal and that the inserting name least to the extent accused, aided or abetted al payee, Barnett, of James W. a fictitious necessary it is prin that the Wayne signature cipal L. be convicted or the iden being tity Tullos taken principal before established. See Pascagoula. automobile States, Edwards v. 1960, United 5th Cir. charge transpor- 681; indictment did Gray 286 States, F.2d v. United D. crime, tation could C.Cir.1958, as the but the U.S.App.D.C. 153, 104 483; find that Hendrix furnished the F.2d States, Meredith v. United already illegally prepared for subse- 1956, 535; Cir. 238 F.2d Colosacco cashing. quent States, v. United 1952, 196 10th Cir. F.2d 165; Karrell v. United legally 9th Cir. A sufficient case Hen- cert. den. drix U.S. existed once there was to show 891, 71 646; S.Ct. 95 L.Ed. agreement that he had entered into an Klass, States v. 3rd Cir. manner, use these checks in a fraudulent *5 373; Von Patzoll v. they were-falsely that made in man- the Cir. cert. with, den. 332 ner he was familiar that 110, 111, U.S. 68 S.Ct. complete them, L.Ed. control of that he trans- In the record ported here there Pascagoula, is evidence them to that he was that offenses were present committed. Two the automobile at the time forged the by checks being presented payment were cashed the for were green pedal pushers woman in being Pascagoula, with cashed in red hair in together may balloon rollers. he, companions, She that with have his appellant been Torbert, the may away but she went on from Mobile in the what have might flight been someone jury else so far as the well consider as proof shows. Viewing One of the checks was the checks had been cashed. cashed possibly man who was the Hen evidence that was to the submitted drix, possibly Sykes, possibly jury light strongly neither. the most in favor of the on Government a motion for ac- difficulty saying We have no that the quittal, difficulty deciding we have no proof of with, Hendrix’ association ample that was there evidence to warrant with, identification these checks as to finding by jury the that actual- which the amply crime was committed ly exactly did what he undertook with guilt sustains a determination of his as do, falsify is, Shelton to the an aider and abettor. payee checks and use a fictitious light In said, of what has been it is not forged signature get money in order to necessary for us to determine whether the appears the checks. And it when jury properly find from the testi- person this was done some mony per- Corlew that was the person’s identity proven, is not the 5127, although son who cashed check No. jury acting could find that Hendrix was testimony, coupled Corlew’s corrected “causing principal falsely these Sykes’s with admission that he did cash made and securities to be trans- a check in and that he cashed ported in interstate commerce.” may there, while one have been suf- Moreover, since the being indictment this pre- ficient to warrant issue charged Hendrix as an aider jury. and abettor the sented to Neither do we need principal, as a as well can there be even whether to decide the fact that propriety less doubt about the actually decided before he sent jury’s finding guilty through that Hendrix was collection that it was charged. In prevent Sykes’s offense order to sus would bad conduct from tain satisfying the conviction of a requirement defendant who that he will- fully knowingly transported, or was elicited from witness that he had pleaded transported, particular guilty caused to be to all ten of the counts commerce, United see check in interstate indictment. witness was asked The Gardner, 1948,171 imposed gave 7th Cir. States what sentence an ambiguous answer. He was asked wheth- hoped help er he him would complain of appellants The gave and he an affirmative answer. charge jury. They contend court’s jury court then stated to the the situation offenses court did define the that the not respect sentencing with of Shelton. enough particularity. The court put Since the matter had been before containing indictment as referred to the appellants, proper it was and observed of the offense the elements correctly that the court inform the language of the indictment that the transpired. Perhaps as to what had overly phrasing. its technical there was an overelaboration in complain com appellants of the court’s statement, prejudice court’s “because ment that case there appellants resulted from it and no error feature has interstate commerce was committed. was correct it.” The statement proper. permitted The court Government wit- commerce But for the interstate Wells, charged jointly ness who was have a state offense it would feature 6, inclusive, Hendrix in Counts to state courts. trial in the pleaded guilty, indictment and who had When Government witness testify activity as to criminal having obviously mem was ory lapses, deliberate appellant Torbert, directly related per counsel Government appellants offenses for which the pres mitted to examine out of being then tried. In view of jury, ence of whether determine *6 vacating judgments that we fact are the Appel or not was a hostile witness. he of conviction Torbert and in view opportu lants’ counsel was refused the way of the fact that this in no nity to cross-examine on this voir dire prejudiced Hendrix, no further notice examination, out of examination. point. need be taken of this jury’s presence, with the
the
terminated
Carolyn
The conviction of
Sue Torbert
Sykes
court’s announcement
that
will be vacated and set aside.
If addi-
testify
prej
such
but
in
fashion as to
not
available,
tional
is
evidence
in
sufficient
rights.
udice his
The voir dire examina
opinion of
the
the United States Attor-
tion and
of it
in
the conduct
the
ney, to warrant conviction there should
appellants
court’s discretion. The
have
trial;
new
be a
otherwise the indictment
ruling
prejudiced
not been
the court’s
her should
judg-
toas
be dismissed. and no abuse
discretion is
shown.
ment
conviction of Hendrix
af-
are
In
the cross-examination
the
firmed.
Barnett,
witness
Government’s
the court
as
curtailed examination
collateral
POPE,
Judge.
Circuit
by appellants’ counsel, saying,
matters
Judge
in
opinion.
I concur
TUTTLE’S
going
scope
far
“We are
too
afield.” The
my
wish
I also
to add that in
view the
largely
is
cross-examination
left
in the
sufficiently
record
discloses evidence
the trial
discretion of
court.
In the ab
finding
would
which
warrant
in
sence of
abuse
discretion the trial
Sykes,
that
aided and abetted
ruling
upheld.
will be
court’s
Roberson
persons
who drove
one of
from Mobile
States,
1957,
5th Cir.
v. United
737,
Pascagoula with the
checks in Hen-
434,
A.L.R.2d
cert. den. 356 U.S.
automobile,
in
drix’s
a check
919,
704, 2
78 S.Ct.
L.Ed.2d 715. No
Pascagoula.
doing
In
in
so
he caused the
abuse is shown.
transported in
check
interstate com-
On
appel
cross-examination
in violation of 2314 of
§
merce
Title 18
Shelton,
lants’ counsel of the witness
in the manner described in
it U.S.C.
Pereira
9,
1,
74 S.Ct.
347 U.S.
terstate commerce.
Such was not
363,
lew’s regarded as substantive of be by Sykes cashing of the check conviction of Hendrix
the basis and abettor in cash- as ing aider One or check. the other Cor- HURT, Appellant, Marvin Cecil false, perhaps lew’s statements false. One statement both were offsets America, UNITED STATES of given should the other any neither Appellee. Wigmore Ill value. Cf. testimonial No. 17312. 687, 1018. on Evidence § Appeals States Court majority position if the is correct But Eighth Circuit. concluding that Corlew’sidentification Feb. Sykes is, with the evidence of Hen- obtaining the drix’ blank cheeks and bringing enough Pascagoula, them aiding permit an inference and abet- Sykes by Hendrix, ting think the Hendrix must be set aside
conviction *8 reason. When another Corlew suspected the check it was not cashed put forgery good. in- When of commerce he knew it was flow being so, good. the offense This here not charged not committed. Gardner, Cir.
States state- no difference I have majority can that an accused
ment of the aiding abetting be convicted principal, identity But I do
principal established.
agree conviction should be sus-