Billy George Andrews v. United States , 309 F.2d 127 ( 1962 )

CAMERON, Circuit Judge.

Appellant Andrews, hereinafter referred to as defendant, appeals from a conviction of knowingly transporting a stolen motor vehicle in interstate commerce.¹ His main contentions here are that errors were committed in allowing the prosecuting attorney to mention defendant’s incarceration in a jail at Long-view, Texas immediately prior to the offense (and allowing the introduction of evidence to that effect); that a confession and admissions by him were improperly admitted; that even if the confession and admissions were properly admitted, there was no corroborating evidence to support the verdict of guilty; and that the giving of a supplementary instruction (the so-called “dynamite” or “Allen” charge) by the trial judge constituted prejudicial error.

Defendant Andrews and a jailmate, Tillman Spurlock, escaped from the Gregg County Jail in Longview, Texas, stole a pickup truck from a nearby parking lot, drove into Louisiana and then into Arkansas and then back into Louisiana, where the truck was abandoned near the Louisiana-Arkansas line. Appellant was apprehended just north of the Louisiana-Arkansas line by Arkansas authorities. He admitted his participation in the theft and interstate transportation of the truck, and volunteered to show the Arkansas authorities and Sheriff Hinton of Morehouse Parish, Louisiana, the location of the truck. The truck was found just south of the state line, in Morehouse Parish, Louisiana, where it had been abandoned.

Andrews was incarcerated in the More-house Parish Jail and interviewed by F. B.I. Special Agent Dunn who advised him of his constitutional rights and took a written statement from him in which Andrews admitted his participation in the theft and interstate transportation of the pickup truck.

He was tried to a jury in the United States District Court for the Western District of Louisiana and convicted of violating 18 U.S.C.A. § 2312, Note 1, supra, interstate transportation of a stolen motor vehicle. A sentence of three years and nine months was imposed, and Andrews appeals to this Court.

The trial judge properly permitted the prosecuting attorney, in his opening statement, to refer to the fact that appellant was incarcerated in the Texas jail immediately prior to the offense of which he was accused. Evidence to the same effect was properly admitted. The purpose of such testimony was not to prejudice the jury, but to place the appellant in the vicinity of the crime at the time it was committed. The court charged the jury:

“ * * * that defendant was incarcerated and escaped is not to prejudice you in any way. You will consider that only on the question of whether or not he transported or caused to be transported a stolen vehicle, knowing the same to be stolen.

“In other words, you will not allow that to prejudice you — the fact that he was in jail and escaped, if such is true.”

If the evidence of incarceration has a direct tendency to prove the particular crime for which the accused is indicted, it is relevant on a basis other than the probability of guilt based on a general criminal disposition. It is relevant and proper, since it tends to identify the accused with a specific crime — here, the theft of a pickup truck from a parking lot near the jail. See Smith v. United States, 9 Cir., 1949, 173 F.2d 181.

Appellant insists- that the written confession and other admissions introduced in evidence were not voluntary and thus not admissible. Whether or not such extra-judicial statements are voluntary is a preliminary question of fact to be determined by the trial judge. The judge found that the admissions and confessions were voluntary, and a careful review of the record leads us to the conclusion that the trial court committed no error in allowing the introduction of the evidence. Of course, the weight and credibility ultimately to be given the statements were questions for the jury, who obviously believed them.

Next, appellant insists that even if the confession were voluntary, there was no corroborating evidence to support the conviction. However, the corroborating evidence need not, in itself, be sufficient to establish the corpus delicti; it is necessary only that there be substantial independent evidence which would tend to establish the trustworthiness of the statement. Opper v. United States, 1954, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101, 45 A.L.R.2d 1308. We find in the record sufficient independent evidence introduced by the government to support the jury’s verdict of guilty. The cases cited by appellant to illustrate circumstances in which there was not enough evidence to support a verdict of guilty are clearly distinguishable; in none of them was there a confession.

Finally, appellant urges that the court below committed error in giving the supplementary charge one hour and five minutes after the jury had begun deliberation. No exception was taken to this charge at the trial below. The charge followed closely the language of that approved in Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. Powell v. United States, 5 Cir., 1962, 297 F.2d 318, does not disapprove the “Allen” charge, but cautions against its misuse. Even if there had been objection, we think that the charge was in no manner erroneous. In any event, we do not agree that the charge constituted plain error under Rule 52, Federal Rules of Criminal Procedure, 18 U.S.C.A. See Huffman v. United States, 5 Cir., 1962, 297 F.2d 754.

We have carefully considered the other errors assigned and do not find any of them possessed of merit.

The judgment of the court below is

Affirmed.

1 . 18 U.S.C.A. § 2312. “Whoever transports in interstate or foreign commerce a motor' vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000.00 or imprisoned not more than five years, or both.”