Charles Lee Mcintosh, Appellant, v. United States of America, Appellee, 341 F.2d 448 (8th Cir. 1965)

The defendant-appellant, Charles Lee McIntosh, was tried and convicted by a jury in the United States District Court for the Southern District of Iowa on an indictment charging him with violation of 18 U.S.C.A. § 2312.¹  On August 6, 1964, he was sentenced to imprisonment for a period of four years. Thereafter notice of appeal was filed. On August 25, 1964, an order was entered by the trial court authorizing the appeal in forma pauperis.

The main question McIntosh raises here is whether the trial court erred in refusing to grant his motion for judgment of acquittal based upon insufficiency of the evidence, particularly in that he claims the government failed to establish that the tractor described in the indictment, stolen in Indianapolis, Indiana, and identified in Des Moines, Iowa, was the one which the appellant wrecked near Granger, Iowa, on or about November 7, 1961.

We have examined the record in detail. It consists entirely of the government's case. The defendant did not testify and offered no evidence in his own behalf. He was represented by able, court-appointed counsel during the trial in District Court. On this appeal he appears pro se.² 

The evidence was mainly circumstantial. It must be considered in the light most favorable to sustaining the jury's verdict. All reasonable inferences flowing from such evidence and tending to support the verdict must be accepted as established. Glasser v. United States, 1941, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680; Valentine v. United States, 8 Cir., 1961, 293 F.2d 708, 710; Blumenfield v. United States, 8 Cir., 1960, 284 F.2d 46, 52.

The evidence indicated and the jury was entitled to believe that on or about November 7, 1961, an International tractor and trailer unit was involved in a one-car accident near Granger, Iowa, at about 12:30 a. m. A witness, Gene Pion, was near the scene in his own car and noticed the tractor and trailer unit approaching an intersection at a high rate of speed. It proceeded through a stop sign, rolling over an embankment. Pion stopped his car and on investigation found the defendant McIntosh walking around the outside of the truck and an injured man, Willie Ayers, inside the cab. He talked with McIntosh, whom he assumed to have been the driver, and also with the injured man. He offered to get an ambulance and was told to do so. He left and drove into Granger, calling the Highway Patrol and an ambulance. Upon his return to the scene of the accident both men had disappeared. At the trial, Pion identified the defendant and Willie Ayers as being the two men he saw and talked to at the scene of the accident.

Willie Ayers testified, identifying himself as the party injured in the accident. He had been working with McIntosh and at the time had been asleep in the sleeper compartment of the cab behind the driver. He described the vehicle they were operating as a 1959 "Emeryville International" truck, driven by the defendant McIntosh. He had known McIntosh prior to this particular trip, having seen him with the same tractor some two or three weeks prior thereto in Florida and also in Georgia. He testified that after the accident the defendant McIntosh told him the "truck was hot" and to "get out". He did not remember getting out of the truck. He apparently was taken or somehow got to the Broadlands Hospital in Des Moines, Iowa, where he was confined for three to four weeks with a ruptured spleen. He also testified that McIntosh, on a prior trip, had told him, "Don't cross no scales" and that he, McIntosh, didn't want to go through Indianapolis.

Special Agent Maurice E. Murphy testified that he was notified by the Iowa Highway Patrol of a wrecked tractor at Owen Crist's lot in Des Moines, Iowa, and that on November 9, 1961 he examined the wrecked vehicle, which was locked in a garage adjacent to the office. He identified it as a 1959 International cab-over tractor bearing serial No. EF-344OG and as being red in color with a base coat of yellow. On examination of the interior of the cab he found a number of items identified as driver's logs, receipts, miscellaneous papers and a pair of shoes. These items were introduced as group Exhibit No. 1, and were itemized by the witness. A driver's log found therein indicated McIntosh as being the driver. It carried entries from October 13 to November 3, 1961, referring to numerous trips. There was also a driver's log for "W. Ayers". An envelope contained numerous receipts, contracts with transportation companies, highway permits, identification cards, variously made out to "McIntosh Trucking Service, Dayton, Ohio", "McIntosh", "Charles McIntosh, 4517 Wire Drive, Dayton, Ohio", "Charles L. McIntosh, 4517 Wire Drive, Dayton, Ohio", "Charles McIntosh, Dayton, Ohio", and "Charles Lee McIntosh, Route 1, Box 979, Ozark, Alabama". The papers were signed "Charles McIntosh" and "Charles Lee McIntosh". Defendant's objection to the receipt of Exhibit 1 was overruled.

Paul F. O'Brien, branch manager of the International Harvester Company at Indianapolis, Indiana, testified that his company was the owner of a 1959 International Harvester tractor serial No. EF-344OG and that such tractor had been stolen from their lot in Indianapolis, Indiana, between Saturday, October 7, 1961, at 4:00 p. m. and Monday, October 9, 1961, at 8:00 a. m. He testified that the stolen tractor had a value of $8,900; that it had been painted red by his company over the previous yellow. He further described it as a Model DCO³ -405, of which there were others, such being a description of the model only, not an identification of the particular vehicle.

Special Agent Edward B. Hogan testified that he interviewed the defendant McIntosh on January 17, 1962, at the defendant's home in Dayton, Ohio, at which time he inquired of the defendant about a tractor with which the latter was involved in an accident in Iowa. McIntosh told him the tractor was a 1957 International Harvester leased by him from one Joseph Starr in Danville, Illinois, in late October 1961 and that it had been wrecked in Iowa. McIntosh exhibited and gave to Hogan a lease which he said covered the 1957 vehicle he claimed to have obtained from Starr and which he said was the vehicle he had wrecked in Iowa. The lease was dated September 2, 1961, and described a 1957 International, DCO-405-32 AF. (This is a description of the model only, not an identification symbol of that particular vehicle.) The lease was marked Exhibit No. 2 and was received in evidence over defendant's objection. McIntosh described for Hogan the person from whom he claimed to have leased the tractor as one he had probably called on long distance telephone on October 17, 1961, at either Danville, Illinois, or Penfield, Illinois.

Joseph Starr, of Penfield, Illinois, testified that he knew the defendant McIntosh as a trucker. His acquaintance with him was "casual". He had received a telephone call from McIntosh sometime in 1961. He stated that so far as he knew, he was the only Joseph Starr in Penfield, a town with a population of approximately 350. He denied having entered into any lease with McIntosh for any tractor of any kind and upon being shown the lease, Exhibit 2, denied its execution. He had examined the telephone book for Danville, Illinois, and found no one there by the name of Joseph Starr.

Defendant concedes that the evidence introduced by the government concerning the "1959 International serial No. EF-344OG" established that it had been stolen. He contends, however, that there was no evidence showing or tending to establish his possession of that particular vehicle and the interstate transportation thereof, citing Dixon v. United States, 8 Cir., 1961, 295 F.2d 396. He argues that the vehicle he was driving at Granger, Iowa, was not identified or connected by any evidence with the stolen vehicle set forth in the indictment. It is his position that there was no showing that the tractor examined at Owen Crist's garage by Special Agent Murphy, the concededly stolen vehicle, was the same vehicle driven by him and wrecked near Granger, Iowa, relying upon Cox v. United States, 8 Cir., 1938, 96 F.2d 41, 42; Tyler v. United States, 10 Cir., 1963, 323 F.2d 711, 712; and Thompson v. United States, 5 Cir., 1964, 334 F.2d 207, 209.

True enough, the evidence here was mainly circumstantial but we believe there was sufficient thereof from which the jury could draw the conclusions that the 1959 International tractor described in the indictment had been stolen; that the defendant had transported it in interstate commerce and was operating it at the time of the accident, and that at that time he knew it had been stolen. See Dixon v. United States, supra, 8 Cir., 1961, 295 F.2d 396.

That the tractor had been stolen from the International Harvester Company lot at Indianapolis, Indiana, was definitely established through O'Brien, International branch manager. Exhibit No. 1, consisting of the articles found by Agent Murphy in the stolen vehicle after it had been hauled in to Owen Crist's lot directly connects the defendant McIntosh with the stolen vehicle. Defendant argues that it was improperly received in evidence and that the items comprising Exhibit 1 were in no way connected to him, nor were they authenticated. The various items, carrying the name "McIntosh", "Charles McIntosh" and "Charles Lee McIntosh" and for the most part giving his address as Dayton, Ohio, together with the driver's logs for both McIntosh and Ayers, were all found in the truck's cab shortly after the occurrence of the accident. The government contends that the items in Exhibit 1 are not "documents" introduced as binding upon McIntosh but, rather, are "articles connected with the offense which are introduced as circumstantial evidence of appellant's possession of the tractor". As articles found in the stolen vehicle shortly after the accident, we find them properly admissible and they, together with other evidence, created a very strong inference that McIntosh had been an occupant of the stolen tractor and had failed to take his papers with him.

United States v. Angel, 7 Cir., 1953, 201 F.2d 531, was also a Dyer Act case. Among the articles found in the stolen car by the police were a suitcase belonging to the appellant, an automatic pistol found in the glove compartment, together with a certificate showing ownership in the appellant. There was objection to the introduction of the pistol, claiming that it had no connection with the crime and had an inflammatory effect on the jury. The court said at page 533 of 201 F.2d:

"As the government was putting in its proof, it had no way of knowing that Angel would take the stand. The automobile had been abandoned. None of the witnesses had seen the defendant in the car. It was an important part of the government's case to prove the defendant was in the stolen automobile prior to the time that it became mired on the side road. Defendant's suitcase, gun, or other belongings were material evidence to show that he had been in the stolen automobile, and that he and his companion had brought it across a State line."

Bayless v. United States, 9 Cir., 1952, 200 F.2d 113, rehearing denied January 9, 1953, certiorari denied, 345 U.S. 929, 73 S. Ct. 788, 97 L. Ed. 1359, was a case involving the robbery of a federally insured bank. The car in which the alleged robbers fled was identified by license number at the scene of the crime. Later the police found the car with the doors locked. After a forcible entry, they found, among other things, a shotgun, some shotgun shells, some other shells and a bank book with the name "John R. Bayless". The defendant objected to the admission into evidence of the shotgun, the extra shells and the bank book with his name on it. The trial court allowed this material into evidence and the appeals court said, at page 114 of 200 F.2d :

"A sawed-off, loaded shotgun with extra shells and the bank book bearing appellant's name, both of which were found in the automobile as hereinbefore stated, were introduced into evidence. The shotgun was not used by the robber in the robbery and there was no further proof as to the bank book. Appellant claims prejudice. Everything in the automobile was properly put into evidence in the case. See People v. Mar Gin Suie, 1909, 11 Cal. App. 42, 103 P. 951; Pedersen v. United States, 2 Cir., 1921, 271 F. 187; United States v. Dalhover, 7 Cir., 1938, 96 F.2d 355 at 359. The point is without merit." (Emphasis supplied.)

See, also, Thogmartin v. United States, 8 Cir., 1963, 313 F.2d 589, 594, where evidence of defendant's business card was properly received into evidence to show the defendant's connection with the person in possession of stolen bonds.

Further evidence linking McIntosh to the stolen vehicle is not controverted, such as Special Agent Murphy's examination of the wrecked red over yellow 1959 International tractor serial No. EF-344OG in Des Moines on November 9, 1961, and Ayers' testimony that he was traveling in a red 1959 International tractor with McIntosh, who was driving, and that he had seen McIntosh with the same tractor for two or three weeks; and the driver's log with the name McIntosh in it disclosing entries from October 13th to November 3rd; O'Brien's testimony that his company owned an International Harvester tractor serial No. EF-344OG and that it was stolen from their lot between Saturday, October 7 and Monday, October 9, 1961, and that the tractor was painted red over a base coat of yellow.

Ayers' testimony that he was traveling with McIntosh was confirmed by the witness Pion, who saw both Ayers and McIntosh at the accident scene. McIntosh also admitted to Special Agent Hogan that Ayers was with him.

Further circumstantial evidence of possession of the stolen tractor can be based upon the testimony of the witness Ayers that McIntosh "avoided Indianapolis" and "scales", that after the wreck had occurred, with Ayers injured in the cab, McIntosh told him the tractor was "hot" and that he had better "get out".

As to McIntosh having knowledge of the fact that the vehicle was stolen, his driver's log had entries from October 13th to November 3rd. O'Brien testified that the tractor was stolen between October 7th and October 9th. The trial court gave an instruction⁴  to the effect that possession in one state of property recently stolen in another state, if not explained, is a circumstance from which the jury could infer that the person in possession of the property knew it to be stolen and caused it to be transported in interstate commerce. McIntosh objected to this instruction on the grounds that it violated his constitutional right not to appear and testify in his own behalf and that the instruction effectively deprived him of the constitutional presumption of innocence which surrounds all defendants in criminal trials. In Harding v. United States, 8 Cir., 1964, 337 F.2d 254, at 257, Judge Matthes, speaking for this court, said, in disposing of a similar contention:

"* * * When the court's charge in its entirety is accorded proper consideration in light of the facts and circumstances, the challenged portions thereof are not vulnerable to the claim that the appellant's possession of the automobile created a presumption of guilt. Unlike Bollenbach v. United States, 326 U.S. 607, 66 S. Ct. 402, 90 L. Ed. 350 (1946), relied upon by appellant here, the trial court did not inform the jury that a presumption of guilt arises where one is in possession of recently stolen goods, but rather that the jury could draw an inference to that effect. Appellate courts have consistently sustained instructions similar to those given here as non-prejudicial. Bray v. United States, 113 U.S.App.D.C. 136, 306 F.2d 743 (1962); Battaglia v. United States, 4 Cir., 205 F.2d 824 (1953); Herman v. United States, 5 Cir., 289 F.2d 362 (1961).

"Neither did the charge have the effect of placing the burden on the defendant to prove his innocence. The jury was instructed on the presumption of innocence * * *. Contrary to appellant's contention, this burden was not shifted by the portion of the charge which only permitted, but did not require, the jury to infer from appellant's possession of the automobile that he had transported it in interstate commerce. * * *"

Taking the instructions as a whole, including the instruction which was given on the presumption of innocence, we find no error.

The appellant also objected to the introduction of Government's Exhibit 2, the purported lease of a truck from a Joseph Starr to "Charles McIntosh", on the grounds that the indictment charged the interstate transportation of a 1959 International, whereas the lease showed a date of September 2, 1961, and dealt with a 1957 International truck. The alleged lease gave no serial number for the truck but carried the same model number as the stolen vehicle. The court received the exhibit on the ground that it was the same lease produced by defendant McIntosh and given to Special Agent Hogan, attempting to show that the truck he wrecked near Granger was a 1957 International leased from Mr. Starr. Starr denied that he had executed the lease of the truck as shown in Exhibit 2 and denied that the signature on the lease was his. Starr further testified that he did not own either a 1957 or a 1959 International truck. It is clear that Exhibit 2 was admissible and the jury was entitled to infer that the false explanation of possession of stolen property is circumstantial evidence that the defendant McIntosh knew the truck was stolen. Harvey v. United States, 1954, 94 U.S.App.D.C. 303, 215 F.2d 330 at 332:

"* * * fabrication of evidence of innocence is cogent evidence of guilt."

Wilson v. United States, 1896, 162 U.S. 613, 16 S. Ct. 895, 40 L. Ed. 1090; Harris v. United States, 1948, 83 U.S.App.D.C. 348, 169 F.2d 887, certiorari denied, 335 U.S. 872, 69 S. Ct. 161, 93 L. Ed. 416. See, generally, 22A C.J.S. Criminal Law, § 663, p. 480.

The appellant also moved for a judgment of acquittal on the grounds that there was a variance between the indictment and the proof, in that the indictment charged interstate transportation from Danville, Illinois, while the evidence showed that the truck was transported from Indianapolis, Indiana. The motion for acquittal was overruled by the trial court on the basis that it involved a fact question for the jury. Special Agent Hogan testified that McIntosh had told him that the truck he wrecked was a 1957 International which he had leased from a Joseph Starr and that he had picked it up "a short distance east of Danville, Illinois in the latter part of October, 1961." The jury was entitled to believe that the lease was actually non-existent but that McIntosh had indeed transported a 1959 stolen truck from Danville, Illinois, into Iowa.

We believe the defendant to have been fairly tried and that no prejudicial errors were committed.

Affirmed.