United States v. Anthony R. Day

394 F.2d 335, 1968 U.S. App. LEXIS 6955

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 14, 1968
• Docket: 18085_1
• Status: Published

Opinions

McCREE, Circuit Judge.

This is an appeal from a conviction, following a jury trial, under an indictment for forcibly breaking into a United States post office with the intent to commit larceny, in violation of 18 U.S.C. § 2115.¹ The sole question presented is whether the evidence introduced at the trial is sufficient to sustain the conviction.

The government’s evidence was the following:

Superintendent Higdon of the Red Bank, Tennessee post office testified that he arrived at the post office at approximately 3 p. m. on Sunday, February 26, 1967, and noticed that the blinds on the front window, which are usually open, were closed. He also saw a Volkswagen automobile in the parking lot. Appellant and his co-defendant Brock (who did not appeal his conviction) were observed leaving the post office, and appellant was seen to be wearing a goatee. Appellant entered the Volkswagen, and Brock pushed the car in order to start it.

Higdon testified further that upon entering the post office, the outer doors of which were always unlocked, he observed that a dutch door leading to an inner work area had been forced open. An inspection revealed that nothing was missing from the post office. Higdon telephoned Postal Inspector White, and together they drove off in search of the defendants, apprehended them and placed them under arrest. At the time of the arrest, appellant was observed to have shaved off his goatee. No postal property was found in the possession of either defendant.

Inspector White then testified that following the arrest, he returned to the post office and took palm prints from the broken door,, and forwarded them to Cincinnati so that they could be compared with defendants’ prints.

Richard Shipp, a fingerprint expert, testified that in his opinion, the prints taken from the door were those of defendant Brock.

The government’s final witness, postal driver Battles, testified that he arrived at the post office between 2:00 and 2:20 p. m. on the day in question, and observed that the dutch door was not broken at that time.

No evidence was presented on behalf of defendants.

In determining the sufficiency of the evidence supporting a conviction, the reviewing court must take the view of the evidence most favorable to the government, accept all reasonable inferences which can be drawn therefrom, and affirm if substantial evidence was presented from which a jury could convict. United States v. Compton, 355 F.2d 872, 874 (6th Cir. 1966), cert. denied, 384 U.S. 951, 86 S.Ct. 1571, 16 L.Ed.2d 548 (1966). In this case we find the evidence to have been insufficient.

Appellant contends that there was evidence neither of entry nor of intent to commit larceny, both of which are elements of the offense charged. Although the jury might have determined from the fact that the door was broken and that it bore Brock’s prints that appellant’s co-defendant had entered the inner room of the post office, there was no evidence that appellant had made such entry. Moreover, the evidence does not support a finding that appellant had the requisite intent to commit larceny. The inner office was found not to have been disturbed, nor was any postal property found in the possession of either defendant. On the basis of the government’s evidence, appellant could have entered the post office with the intent to commit vandalism or with no criminal intent at all as easily as with the intent to commit larceny, as charged.

The judgment is reversed and the case is remanded for entry of a judgment of acquittal.

O’SULLIVAN, Circuit Judge, concurs in the foregoing opinion.

1 . 18 U.S.C. § 2115:

Whoever forcibly breaks into or attempts to break into any post office, or any building used in whole or in part as a post office, with intent to commit in such post office, or building or part thereof, so used, any larceny or other depredation, shall be fined not more than $1,000 or imprisoned not more than five years, or both.