John Phillips McCLARD, Carroll Franklin Simmons, and Verlon Hershel Ussery, Appellants, v. UNITED STATES of America, Appellee, 386 F.2d 495

FLOYD R. GIBSON, Circuit Judge. Appellants, John Phillips McClard, Carroll Franklin Simmons and Yerlon Hershel Ussery, appeal from a conviction entered by the United States District Court for the Eastern District of Arkansas for violating Title 18 U.S.C. § 2113 by entering a bank, the deposits of which are insured by the Federal Deposit Insurance Corporation, at Ola, Arkansas, with intent to commit larceny. Judgment was based on a jury verdict of guilty to a one-count indictment on all appellants. The Court sentenced Mc-Clard and Ussery to a commitment of four years, and Simmons to three years.

Appellants challenge the sufficiency of the evidence, the admission of evidence of a boot worn by Simmons and boot prints taken from the floor of an insurance office that was located in the same building housing the bank, the admission of evidence concerning a pistol found on the front seat of a pickup truck that Ussery was occupying when he was arrested, and the Government’s use of alleged leading questions in the interrogation of witnesses. The appellants did not testify, as is their privilege, and did not offer any evidence in their own defense.

Thus the Government’s evidence stands uncontroverted except as to any discrepancies that might appear in the testimony of the eyewitnesses to the incriminating actions of the appellants and other matters relevant to the case. In a criminal case where there has been a conviction resulting from a jury verdict of guilty, the appellate court must take that view of the evidence that is most favorable to supporting the jury verdict and must accept as established all reasonable inferences that tend to support the action of the jury. Any conflicts in the evidence are resolved in favor of the jury verdict. Taylor v.

State of Mississippi, 319 U.S. 583, 585-586, 63 S.Ct. 1200, 87 L.Ed. 1600 (1943); Koolish v. United States, 340 F.2d 513, 519 (8 Cir. 1965), cert. den. 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965); Smith v. United States, 331 F.2d 265, 278 (8 Cir. 1964), cert. den. 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34 (1964); Koop v. United States, 296 F.2d 53 (8 Cir. 1961).

The record discloses that on January 22, 1967 between the approximate hours of 1:00 a. m. and 3:00 a. m., some person or persons entered the Ola, Arkansas branch of the First State Bank of Plain-view, Arkansas, by prying open the front door of the bank. The front door had been jimmied and there were marks on the doorjamb indicating that some type of tool had been used to force open that door. A combination on the vault door of the bank had been hammered off, the outside braces to the door’s locking mechanism had been loosened and the handle on the door that opened the lock had been broken.

Several tellers’ drawers had been removed from their receptacles and left on the floor of the bank, and several desk drawers were also removed and the contents “rifled” in a search for items of value. Apparently nothing was taken and the intruders left empty-handed. In addition, they left a large screwdriver, a hatchet and a light sledge hammer, together with a tire tool that looked like and probably served the purpose of a crowbar. The bank was located at the corner of the intersection of Highway 10 and Main Street.

An insurance office was located in the rear of the building that housed the bank, but this was not a part of the bank’s operation. A connecting interior door between the bank and the insurance agency was so constructed that the door could be opened from the bank side at any time, but was locked from the insurance agency area and could only be opened from the insurance agency side with a key. The two outside doors to the insurance agency could be opened from the inside when locked, and were used by the bank’s custodian as his sole means of exit when he would leave after finishing his chores.

He did not have a key to the bank premises. When officials entered the bank at 10:00 a. m. of the same morning of the attempted burglary boot prints were noticed in the insurance agency part of the building, the marks being visible because water had apparently been taken from a refrigerator in the insurance agency room and some of it spilled on the floor. The intruder wearing the boots made several well defined boot prints on the insurance agency floor— eleven boot prints were visible, four of which were processed. There was no question that the bank had been entered and a burglary attempted.

The evidence connecting or implicating the appellants with the attempted burglary is as follows: The appellants were seen by five witnesses during a period of approximately 12:00 o’clock midnight to around 3:00 a. m. on the night of the burglary. When first observed, the appellants were riding in a dark green or black old model Chevrolet pickup truck with red cattle sideboards that was passing up and down the street on which the bank was located.

Later the pickup drove up and parked in front of the bank, and the occupants first came around to the bank windows and “fooled around there a little bit and went around to the door”; two of the occupants of the pickup truck were identified by witness Glenn Floyd, who had stopped his car close to the pickup, mistakenly thinking that the occupants were some coon hunting friends of his, and he was thus placed in a position to view all of the occupants, except the driver. Witness Eddie Joe Lawrence noticed the pickup twice cruising up and down the street on which the bank was located.

Witness Floyd noticed the pickup parked in front of the bank after he had previously seen it, thinking that he knew the parties. When he saw this pickup parked in front of the bank around 1:30 to 2:00 a.m. and noticed them “fooling around the window” and also “messing with the door” he left to find the deputy sheriff located in Ola, but he was unable to arouse him. Floyd came back to town and talked with some other boys .in the vicinity of the bank, parking his pickup between the Dairy Queen and the Conoco station which were across the street and located a short distance from the bank.

He noticed the individuals in the old model Chevrolet pickup truck with red sideboards again come back to the area of the bank where one of them got out at the bank and went across over between the D-X Station and the cafe. The other two drove the pickup around the block and parked close to the bank. Floyd again went to get the law and was successful in wakening him, after which they both proceeded back to the bank area in the deputy sheriff’s car. When the deputy first came to the scene he drove by the pickup that was parked about fifty steps from the bank and saw that it was empty.

After driving behind the cafe and the post office he saw three persons running from the bank area toward the filling station. Floyd stayed in the deputy’s car, while the deputy jumped out with a shotgun and gave pursuit to three individuals running across the street. He commanded them to stop but ceased immediate pursuit when he heard a shot. He turned around and saw one of them running back toward the intersection and the others in another direction when he attempted to stop them by firing his gun in the air. The deputy then went back to the parked pickup where he found Ussery on the front seat.

The deputy ordered him out of the pickup, placed him under arrest and retrieved a .38 snub-nosed revolver lying on the front seat formerly occupied by Ussery. This gun was loaded and one chamber had been fired. McClard and Simmons were arrested that same morning after daylight when they were together on Highway 7, about one and one-half miles from Ola. They were armed with a .357 magnum and a .22 pistol. The appellants were taken to separate jails and the FBI was notified. The FBI agent arrived that morning, inspected the bank and made imprints of the boot prints that were found in the insurance agency area.

Simmons was taken to the Russellville jail where the sheriff attempted to interrogate him, but after being advised of his rights he refused to make a statement, and the sheriff that night took his boots to use as evidence. The Government submitted evidence showing that the boot prints found in the insurance agency area were of the same size, design and had the same wear characteristics as the right boot of Simmons. The sheriff also testified that the license on the old model Chevrolet pickup was fictitious.

We, therefore, have a situation presented where the three appellants all armed with loaded pistols were driving around the area of the bank in a pickup truck bearing a fictitious license plate in the early hours of the morning, were seen coming from the pickup to the immediate area of the bank “fooling” around the outside windows and “messing” around the front door that later was shown to have been jimmied. These individuals were later in the same area of the bank and when accosted by the deputy sheriff all fled, which is an indication of guilt.

They were apprehended, Ussery immediately, apparently hiding in the pickup truck with a loaded pistol, and the other two after daylight that same morning. The boot prints of Simmons were shown to fit the size, design and wear characteristics of the boot prints found in the insurance agency office, which area is easily accessible from the interior of the bank and allows an undisturbed passage to the outside by use of the insurance agency doors which were locked to the outside but not to the interior.

The Government submitted its case on the theory that at least Simmons had entered the bank and tried to burglarize it, and he was either accompanied by Ussery and McClard, or McClard and Ussery were guilty as principals by aiding and abetting Simmons under Title 18, U.S.C. § 2. The evidence, both direct and circumstantial, strongly indicates that appellants were guilty of an attempt to burglarize the bank at Ola. The jury is the judge of the credibility of the witnesses and of the factual issues connecting the appellants with the undenied attempted burglarization of the bank.

In reviewing a judgment entered upon a verdict of guilty by the jury we must view the evidence in the most favorable light tending to support the convictions, including all inferences which may be reasonably drawn in support of the jury’s conclusion. (Koop v. United States, 296 F.2d 53, 54 (8 Cir. 1961).) The evidence strongly singles out the appellants as the perpetrators of this offense, and their conduct in fleeing from the law is indicative of guilt. They were all in the bank area and Simmons’ boot print places him in the insurance agency. They all appeared to be engaged in an attempt to burglarize the bank.

No other evidence was introduced or received at the trial to explain their actions, and their actions standing alone with proof of forced entry into the bank were sufficient for the jury to find them guilty beyond a reasonable doubt. The boots worn by Simmons at the time of his arrest and the bootprints processed from the insurance area were clearly admissible. Simmons contends some violation of his constitutional rights and also that no foundation was laid for the admission of this evidence. The relevancy of the bootprints is obvious.

Simmons was seen near the bank prior to the offense charged and was no doubt one of the men seen running from the bank at the time the deputy sheriff was investigating the suspicious conduct of Simmons and his companions. When Simmons was apprehended hours later, about one and one-half miles from town, he was wearing the boots which made the boot tracks or prints in the insurance agency area. This evidence under the circumstances places Simmons in the bank.

It is an accepted rule of evidence that, for the purpose of identifying the accused as the guilty party, evidence of the correspondence of the accused’s footwear or tracks to prints or tracks found near the scene of the crime is admissible. This is similar to fingerprint evidence that is usually admissible for the purpose of identifying the accused as the offender and to connect him with the offense.

As noted in 1 Wigmore on Evidence, § 149 (3rd Ed. 1940): “The presence upon the person or premises of articles, fragments, stains, tools, or any other resulting circumstance is consistently employed as the basis of an inference that the person did

an act with which these circumstances are associated.” Wigmore further notes “Their relevancy is so patent that no occasion is given for rulings of law; * * See Downey v. United States, 263 F.2d 552 (10 Cir. 1959); Patterson v. United States, 62 F.2d 968 (10 Cir. 1933); Sheppard v. State, 239 Ark. 785, 394 S.W.2d 624 (1965); Anno. 35 A.L.R.2d 856 (1954). The boots may be taken from a suspect as an incident to a lawful arrest for an investigation of the crime and the connection of the accused with the commission of the crime. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1946).

This is not testimonial evidence and does not come within the protection of the Fifth Amendment against self-incrimination. Clothes, features and fingerprints, including imprinting of a suspect’s foot in a plaster cast for the purpose of identification are all permissible steps in a proper investigation of an offense and the accused’s connection therewith. See 8 Wigmore on Evidence, § 2265, (McNaughton rev. 1961). The boot is only an identifying piece of apparel worn by the accused and is far removed from any Fifth Amendment protection against self-incrimination.

Even identifying physical characteristics are permitted in evidence when relevant. As reasoned by Justice Brennan in Gilbert v. State of California, 388 U.S. 263, at 266; 87 S.Ct. 1951, at 1953, 18 L.Ed.2d 1178 (1967): “The privilege reaches only compulsion of ‘an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,’ and not ‘compulsion which makes a suspect or accused the source of “real or physical evidence” * * * ’Schmerber v.

State of California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. [United States v.

Wade, supra, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149.]” Appellants next question the seizure of Ussery’s .38 snub-nosed revolver that was seized when Ussery was placed under arrest. The revolver appeared in plain view lying on the front seat of the pickup truck at a place where it had previously been concealed by Ussery’s body. One shot had been fired from this gun and its seizure and admission into evidence were permissible and relevant to the offense charged. It is common knowledge that burglars and those intent on predatory practices often carry or have at their command loaded guns.

These concealed guns are often associated with and mostly used to perpetrate criminal acts. This is but another significant incident in the overall investigation of the attempted burglary of the bank. The arrest of Ussery was legal both for investigation of attempted burglary and for carrying a concealed weapon. The legality of an arrest is determined by state law in the absence of an applicable federal statute. United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1949). Under Harris v.

United States, supra, the revolver could be seized as an incident to the arrest or even as an instrument of the crime itself of carrying concealed weapons. As discussed in the Arkansas case of Williams v. State, 237 Ark. 569, 375 S.W.2d 375 (1964), the seizure of articles that were seen by officers in a truck and seized is permissible as a reasonable search and is not violative of the Fourth Amendment guarantees against unreasonable searches and seizures.

Here the sight of Ussery’s pistol on the front seat under the circumstances of this case afforded the deputy sheriff probable cause to believe that a crime had been or was being committed in his presence. The arrest of Ussery and the seizure of his pistol without a warrant were proper and legal, as was the subsequent admission into evidence of the testimony concerning the pistol. Busby v. United States, 296 F.2d 328 (9 Cir. 1961), cert. denied 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 278 (1962).

Some leading questions were asked by counsel for the Government during the trial of this case, but whenever objection was properly made the objection was sustained and Government counsel admonished against asking leading questions. Oftimes leading questions are asked on preliminary and collateral matters to expedite the trial. In any event the control of leading questions is a matter left to the discretion of the trial judge.

Absent an abuse of this discretion, there can be no prejudicial error and the appellants in this case have not shown that any of the rulings of the experienced trial judge were erroneous, let alone prejudicial. Stahl v. United States, 144 F.2d 909 (8 Cir. 1944). 3 Wigmore on Evidence, § 770 (3rd Ed. 1940). Appellants had a fair trial and the issues were properly submitted to and explained to the jury in the charge of the trial judge. The evidence, both direct and circumstantial, made a clearly submissible case upon which the jury was warranted in rendering a verdict of guilty.

No prejudicial error has been shown to have occurred in the trial of this case. We think the verdict of the jury should stand, and the judgment is affirmed. . “§ 2 Principals “(

a) Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal. “ (

b) Whoever causes

an act to be done, ■which if directly performed by him would be an offense against the United States, is also a principal and punishable as such.”