Petition for Writ of Certiorari — Lyles v. United States (No. 820)

SUBJECT INDEX

OPINION BELOW .

JURISDICTION

QUESTIONS PRESENTED FOR REVIEW

STATUTE INVOLVED

STATEMENT OF THE CASE .

ARGUMENT

APPENDIX A

APPENDIX B

LIST OF AUTHORITIES

CASES

Arnold v. U. S. (10th Cir., 1938), 94 F. 2d 499

Caminetti v. U. S., 242 U.S. 470, 57 S. Ct. 192, 61 L. Ed. 442

Dahly v. U. S. (8th Cir., 1931), 50 F. 2d 347

Holmgren v. VU. S., 217 U.S. 509, 30 S. Ct. 588, 54 L. Ed. 861

Mesarosh v. U. S., 1 L. Ed. 2d 1, 352 US.—, 77 S. Ct. 8

Sykes v. U. S. (8th Cir., 1913), 204 F. 2d 909

U. S. v. Hinz (C.A., Calif., 1888), 3) F. 272

STATUTES

28 U.S. Code 1254(1) (45 Stat. 54)

18 U.S. Code 2314 (63 Stat. 96)

. TEXTS

22 Corpus Juris Racin 912 (Crim. Law, Sec. 54)

Wharton on Criminal Evidence, 9th Ed., Sec. 442

Wharton on Criminal Evidence, 11th Ed., Sec. 112

PAGE

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IN THE

Supreme Gourt of the Anited States

No.

Jack Wayne Ly _es, Petitioner

v.

UNrtTEp States OF AMERICA, Respondeni

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Fifth Circvit

Petitioner Jack Wayne Lyles prays that a Writ of Certio-

rari be issued to review the opinion and judgment of the

United States Court of Appeals for the Fifth Circuit

entered December 10, 1957, said opinion and judgment

affirming Petitioner’s conviction in the District Court of

the United States for the Southern District of Texas for

interstate transportation of stolen money.

Opinions Below

The opinion of the United States Court of Appeals for

the Fifth Circuit in Cause No. 16735 entitled “Jack

Wayne Lyles v. United States of America” is appended to

this petition.

2

Jurisdiction

The judgment of the Court of Appeals for the Fifth

Circuit was entered December 10, 1957.

Petition for Rehearing filed by Petitioner in the Court of

Appeals was denied January 30, 1958. On February 19,

1958, the Court of Appeals entered its Order staying its

mandate for .a period of thirty (30) days from January

30, 1958, and urtil final disposition of the case by the Su-

preme Court provided that within thirty (30) days from

January 30, 1958, there should be filed with the Clerk of

the Court of Appeals the certificate of the Clerk of the

Supreme Court that certiorari petition and record have

been filed.

The statutory provision which, it is believed, confers on

the Supreme Court jurisdiction to review the judgment in

question by Writ of Certiorari is Section 1254(1) of Title

28, of the United States Code (45 Stat. 54), which reads

as folluws:

“Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree;”

Questions Presented For Review

1. The propriety of the Trial Court’s charge to the jury

on accomplice testimony. The Trial Court charged the

jury that it might find corroboration in other facts in

the case; no possible corroboration exists in the other

evidence; the Court of Appeals held that it was unneces-

5

sary for the Trial Court to charge the jury on the weight

of accomplice testimony, and that accordingly no error

was presented. This, it is contended, was error.

2. The sufficiency of the evidence to sustain a conviction.

(a) The conviction here rests solely upon what this

Court has termed “tainted testimony” wholly

uncorroborated in any essential element of the

offense; and |

(b) The prosecution has failed to offer evidence avail-

able to it and material to the issues presented,

thereby raising an inference favorable to Petitioner.

Statute Involved

The Statute under which Petitioner was tried and con-

victed is Article 2314, Title 18, (63 Stat. 96), United

States Code, which reads as follows:

“2314. Transportation of stolen goods, securities,

monies, or <rticles used in counterfeiting

Whoever transports in interstate or foreign commerce

any goods, wares, merchandise, securities or money, of

the value of $5,000 or more, knowing the same to

have been stolen, converted or taken by fraud; or

Whoever, with unlawful or fraudulent intent, trans-

ports in interstate or foreign commerce any falsely

made, forged, altered, or counterfeited securities,

knowing the same to have been falsely made, forged,

altered, or counterfeited; or

Whoever, with unlawful or fraudulent intent, trans-

ports in interstate or foreign commerce, any tool,

implement, or thing used or fitted to be used in falsely

making, forging, altering, or counterfeiting any se-

curity, or any part thereof—

4

Shall be fined not more than $19,000 or imprisoned

not more than ten years, or

This section shall not apply to any falsely. made,

forged, altered, counterfeited or spurious representa-

tion of an obligation or other security of the United

States, or of an obligation, bond, certificate, security,

treasury note, bill, promise to’ pay or bank note

issued by any foreign government or by a bank

or corporation of any foreign country. As amended

May 24, 1949, c. 139, Sec. 45, 63 Stat. 96.”

Statement of the Case

Petitioner was tried on a single count indictment charg-

ing that on or about August 29, 1955, he did knowingly

and unlawfully transport in interstate commerce from

New Orleans, Louisiaria, to Houston, Texas, approximately

$22,000.00 in United States currency, knowing the same

to have been stolen. He was found guilty by a jury and

sentenced to serve eight years in the custody of the Attor-

ney General.

The Government offered the testimony of two witnesses

—Evelyn McCarthy and Doris Andrews (also called Doris

Andrews Grouches), who testified, in substance, as fol-

lows: In August, 1955, Evelyn McCarthy, a prostitute,

met one Hill, in the pursuit of her profession, and while

consorting with him, discovered that he had with him a

great deal of money. Evelyn McCarthy so advised her

husband, Ralph McCarthy, Petitioner Jack Wayne Lyles,

and Doris Andrews, and the four of them embarked upon

a common scheme to rob Hill of his money. Evelyn

McCarthy rejoined Hill at the Rice Hotel in Houston,

where later in the afternoon she and Hill decided to go~

tu Baton Rouge, Louisiana. Upon arrival at the airport,

5

however, their destination was changed to New Orleans.

Petitioner, Ralph McCarthy, and Doris Andrews followed

them to the airport, learned that they had changed their

destination to New Orleans, followed them to New Orleans,

discovered the location of the hotel where Evelyn McCarthy

and Hill had checked in, and going to the hotel, entered

the room at gun point and relieved Hill of approximately

$22,000.00 in United States currency, which money the

four participants then carried back to Houston, Texas.

The Government also offered the testimony of an As- _

sistant Cashier of the Inland Empire Bank in Umatilla,

Oregon, to the effect that approximately one week before,

the bank had been robbed by two persons of over $57,-

000.00; this witness identified a person produced by the

Government in open court as one of the bank robbers and

the persons so identified was identified by witnesses Evelyn

_ McCarthy and Doris Andrews as the person Hill, who was

allegedly robbed of the $22,000.00 by Petitioner and his

companions.

Bell boys at the Rize Hotel in Houston, Texas, identified

Hill as the person who was present, checked in at the Rice

Hotel, and identified Evelyn McCarthy as 2 woman who

was with him.

Bell boys at the St. Francis Hotel in New Orleans identi-

fied Hill as a guest of the hotel, although these bell boys

did not identify either Evelyn McCarthy, Doris Andrews

or Petitioner Jack Wayne Lyles.

The balance of the Government’s testimony was con-

cerned with proof that on September 1, 1955, Petitioner

purchased a used Cadillac automobile for the sum of

$2,650.00, of which sum $2,300.00 was paid in cash,

6

That on August 6, 1955, an automobile in the name of

Petitixner was repossessed by a finance company by reason

of the fact that the payments on the car were delinquent,

that on August 30, 1955, Petitioner deposited $1,000.00 in

his account, which prior to that time was in the sum of

40¢, and that on the same date a safety deposit box was

rented in the name of Petitioner; that on August 30, 1955,

Petitioner paid credit accounts totalling $303.55; and that

on September 1, 1955, Petitioner purchased $378.20 in

men’s clothing.

Neither of the women accomplice witnesses was ever

arrested or prosecuted for the crime charged against Peti-

tioner. The alleged fourth member of the group, Ralph

McCarthy, was killed in an automobile accident some four

months before the institution of the criminal action against

Petitioner. Upon cross-examination of the two women

accomplices, it was developed that the witness Evelyn

McCarthy, shortly after the alleged robbery of Hill, to-

gether with her husband, purchased a new home in which

she still resided, and, further, that since the institution of

the proceedings against Lyles, several criminal prosecutions

pending against Evelyn McCarthy had either been dis-

missed or not brought to trial. The witness Doris Andrews

had earlier given to Petitioner’s attorney a statement, in

the presence of her own attorney, and immediately upon

her release from custody after she had been arrested by the

FB! as a material witness, knowing such statement was

in connection with said attorney’s representation of Peti-

tioner in this case, which on the trial she testified was pure

fiction and was a deliberate falsehood not induced by

either Petitioner’s ..torney or her own attorney, whom she

desired to be present during the interview. She admitted

that she had collaborated with newspaper reporters in

7

writing a lurid story of her life since the institution of the

criminal proceedings against Petitioner.

On conclusion of the -vidence, the Court charged the

jury on accomplice testimony, and part of the Court's

charge is as follows:

\

“Now, under the law, the federal rule is that a con-

viction may be had upon the testimony of an accom-

plice alone. In other words, it is not essential that the

testimony of an accomplice be corroborated, but you

do have the right to consider whether or not there is

corroboration. If there exists a question in your mind

as to whether full effect should be given to the state-

ments of such a witness, then you are entitled to refer

to the whole case, the whole circumstances, as to

whether or not the witness is corroborated by other

evidence which is not so affected, by undisputed facts

or circumstances which are presented in the ccse. If

you find such corroboration in the case as 4 whole,

then it is your right and --our duty to give effect to

that corroborative evidence in conrection with the

weight which you shall give to the testimony of such

witness.

“By the term ‘corroboration’ as I have used it is meant

some fact or facts which connect the accused with the

act or guilt. There may be a fact or facts in evidence

which support the story related by Evelyn McCarthy

and Doris Andrews Grouches, but which do not iden-

tify anc connect the accused with the crim: charged.

You are instructed that unless you have a full and

positive conviction that Evelyn McCarthy and Doris

Andrews Grouches are telling the truth, you should

disregard their testimony. However, it is entirely up

to you whether y « believe them or not.” (R. 270-

271, 272%

Argument

It is respectfully submitted that the Court of Appeals

for the Fifth Circuit has decided an important question of

Federal law, which has not been but which should be settled

by this Court or, alternatively, has decided such Federal

question in a way in conflict with applicable decisions of

this Court regarding the same subject matter, and in its

decision has so far departed from the accepted and usual

course of judicial proceedings by sanctioning such depar-

ture by the Trial Court as to call for an exercise of this

Court’s power of supervision and a statement of the proper

application of the law.

What is here involved is the Constitutior:al right of a

defendant charged with crime to a fair trial. This Court

must know of the resort by the Government prosecutors

in ever increasing instances to seek convictions by reliance

upon the testimony of admitted co-patricipators in the

crime charged. While it is commendable that a criminal

make a clean breast of his misdeeds, whenever such a person

is given not only his freedom from chastisement for his

misconduct, but left unmolested to enjoy the fruits of his

crime, all for the sake of his testimony against another, the

door is opened wide to grave injustice. Because the prose-

cution in order to prove its case, must often resort to such

testimony, the law should afford a defendant some protec-

tion against abuse of the practice. One such protection is

the charge of the court, impartial and aloof from the heated

partisan arguments of counsel, advising the jury that while

the jury might accept such testimony and convict thereon,

nevertheless it is suspect, should be weighed with caution

and undue credence should not be placed on it if not cor-

roborated. Another protection is the refusal by courts to

!

9

permit the Government prosecutors to sully the dignity of

the United States by reliance for conviction upon the

sworn word of demonstrated liars. Both of these contentions

have been rejected by the Court of Appeals.

Further, the Court of Appeals has here bolstered a grow-

ing trend of Courts of Appeals’ opinions which uniformly

cite two opinions of this Court as authority for a proposi-

tion which is an effrontery to the true expression of the

Supreme Court. These cases are Holmgren v. U. S., 217

U.S. 509, 30 S. Cr. 588, 54 L. Ed. 861, and Caminetti v.

U. S., 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442.

In Holmgren v. U.S. (supra) this Court refused to re-

verse a conviction because of the failure of the trial court

to charge the jury on the weight to be given the testimony

of an accomplice witness. On this point the Court held:

“Be that as it may, the request did not properly state

the law; as it assumed that Werta was an accomplice,

—a conclusion which was controverted,. and against

which the jury might have found in the light of the

testimony. It is undoubtedly the better practice for

courts to caution juries against too much reliance upon

the testimony of accomplices, and to require corro-

borating testimony before giving credence to them.”

It seems clear that the Court did not question the cor-

rectness of the law as contended but only the propriety of

the charge requested.

In Caminetti v. U. S. (supra), this Court cited the

Holmgren case and announced further that while the prac-

tice of charging the jury on accomplice testimony was

desirable, no rule of law forbade convictions on accomplice

testimony if believed by the jury. This holding of the Court

10

was likewise only that a refusal to charge in the forum

requested was correct, because the requested charge im-

properly assumed that the witnesses were accomplices.

These two cases would seem to leave the status of the

law as follows: When the prosecution relies on accomplice

testimony, the Court should warn the jury against too

much reliance on such testimony and that the jury should

require corroborating testimony before giving credence to

accomplice testimony, but that if the jury were convinced

by the evidence beyond a reasonable doubt, it might convict

on accomplice testimony even though uncorroborated.

The opinion of the Court of Appeals in this case has

abbreviated this doctrine at the expense of rights of the

accused to have the jury warned, and it is now authority

for the proposition that a refusal to instruct as to the value

of accomplice testimony is not error requiring reversal.

By this opinion does the Court of Appeals do away with a

valuable protection of an accused against a possible and

likely injustice that can result when the Government prose-

cutors protect one lawbreaker at the expense of the person

on trial.

Further, the Court of Appeals has refused to dispose of

Petitioner’s contention that not only was the jury not

properly charged, it was misdirected by the charge. The

Trial Court told the jury that it might look to other facts

in evidence to seé whether the witnesses were corroborated

and if the jury found such corroboration then it was the

jury’s duty to give effect to such corroboration in weighing

the accomplice testimony. There is not one shred of evi-

_ dence, not even a scintilla of proof in the body of the

~ evidence which could possibly constitute corroboration of

11

these women. The only evidence on which the Government

relies, that is, proof that a bank was robbed by Hill, that

Hill was in the Rice Hotel in Houston, that Hill was in

the hotel in New Orleans, and that a few days after the

alleged robbery Petitioner was in possession of somewhere

between $3300.00 and $3981.75 in cash, it is not corro-

borative of the accomplice testimony, but is merely con-

sistent with it. Corroboration has always been taken by

the courts as meaning fact or facts which tend to identify

the accused and connect him with the act of guilt. Arnold

v. U. S., 94 F. 2d 499; Sykes v. U. S., 204 F. 2d 909;

Wharton on Criminal Evidence, 9th Ed., Sec. 442. And

if two or more accomplices are produced as witnesses, they

are not deemed to corroborate each other, but the same

corroboration is required as if there were but one. U. S. v.

Hinz, 35 F. 272.

These propositions on corroboration have not been dis-

puted by the Government on appeal in this case, but are

submitted to demonstrate the problem here presented. For

the Court to permit the jury to speculate on whether the

other evidence was corroborative, is to attach to such other

evidence a significance greater than that to which it is

entitled, and for the Court, by its charge, to even infer

that the accomplices might be corroborated, is to bolster

their testimony rather than to call the jury’s attention -to

its obvious unreliability.

This is not consistent with the demands of justice and

the purpose of the Court’s charge to the jury.

In this case the conviction depends upon the testimony

of witnesses whose testimony is tainted. It was demonstrated

on the trial that the witness Evelyn McCarthy was ob-

12

viously motivated by a hope of immunity, which was cer-

tainly justified by her admitted hatred of Petitioner and

by a desire to be able to enjoy the fruits of her own crime

unmolested by society in any demand that she make retri-

bution of the stolen money; in this latter connection the

conclusion is inescapable from the evidence that this woman

and her husband purchased a suburban home within six

weeks of the alleged offense with their share of the booty,

and this woman even today lives there enjoying the benefits

of her crime for which Petitioner was convicted. The wit-

_ ness Doris Andrews was likewise motivated by a like hope

of immunity, possible fear as a result of pressure exerted

on her by FBI agents, admitted hatred for the Petitioner,

and by a-.desire to parade herself before society as spec-

tacularly and in as lurid a manner as she could contrive.

Shortly after the trial there appeared in a national maga-

zine, being “True Police Cases”, July issue, Volume 9, No.

101, published monthly by Fawcett Publications, Inc. of

’ Greenwich, Connecticut, and entered as second-class matter

in the Post Office, an article entitled “I was born to do

wrong!” by Doris Andrews. The article was accompanied

by eight photographs of the author, showing her in jail, in

provocative poses, in bars with men, and under other cir-

cumstances, and dwells at length upon every sordid, im-

moral and filthy exploit of which the human mind is

capable when degeneracy runs rampant. Reprinted as a

part of the appendix hereto is a portion of the article deal-

ing with her description of the transaction in question.

In at least fifteen instances, shown in italics in the-reprinted

excerpt, the witness has testified at a very substantial and

material variance with the testimony given by her on direct

examination during the trial, and certainly at extreme odds

with the statement given by her voluntarily and without

“oer

13

duress to Petitioner’s attorney before the trial. Her testi-

mony is her third version of the affair and the only one

which is consistent with the testimony of her co-accomplice.

It is submitted that this type of evidence is the type of

evidence which the dignity of the United States cannot

abide. The language of Mesarosh v. U. S., 1 L. Ed. 2d 1,

352 US.—, 77 S. Ct. 8, in reversing a conviction based

upon the testimony of a witness, who had testified falsely

on the same matters in other proceedings, is deemed apropos:

“The question of whether his untruthfulness in these

other proceedings constitutes perjury or was caused

by a psychiatric condition can make no material dif-

ference here. . . . The dignity of the United States

Government will not permit the conviction of any

person on tainted testimony. . . . The Government of

a strong and free nation does not need convictions

based upon such testimony. It cannot afford to abid¢

with them.”

The true weakness of the prosecution’s case is revealed

not only in what has been offered and produced, but in

that evidence which was not offered or produced. Particu-

larly, the Court’s attention is directed to the fact that the

witness Jack Hill, the man who robbed the Inland Empire

Bank of.-over $50,000.00, who was identified by various

bell boys as the person whom the accomplices said was

robbed of $22,000.00, who has been convicted of the bank

robbery and is in Federal custody and was present and

produced by the Government for identification on the trial,

was never called by the Government as a witness. The fact

that he was even robbed at all must rest again on the un-

corroborated testimony of the accomplices, Evelyn Mc-

Carthy and Doris Andrews, for he has never so testified.

14

The failure of the prosecution to produce a witness,

which it was its duty to produce, without explanation,

supports the inference that the witness’ testimony, if he

had been called, would have been unfavorable. 22 Corpus

Juris Secundum 912 (Criminal Law, Section 594).

_ The application of this rule to the facts before this

Court is appropriate. Its effect is that it must be presumed

that had Hill been called by the Government as a witness,

his testimony, had he testified that he had been robbed,

would be that he was not robbed by the Petitioner Jack

Wayne Lyles.

The rule is again stated in Wharton on Criminal Evi-

dence, Eleventh Edition, Section 112:

“It is incumbent upon the State to produce evidence

~ would neturally be produced in an honest effort to

support the charge in an indictment, and the non-

production of such evidence permits the inference that

if it had been produced, its tenor would have been un-

favorable to the prosecution. The fact that the prose-

cuting attorney fails to examine witnesses who are

cognizant of the material fc<ts and presumably avail-

able at the trial, permits an inference of fact favorable

to the defendant.”

‘ The Government, under its burden of proving Petitioner

guilty beyond a reasonable doubt, offering only the testi-

mony of accomplices uncorroborated in the slightest, should

have called Jack Hill as a witness. An honest effort to sup-

port the charge required his production. Having been con-

victed and sentenced to Federal custody, his testimony

could not incriminate him. Though a felon, his testimony

would not be that of an accomplice, and, if favorable to

15

the Government, would have operated to strongly cor-

_ roborate the accomplices, not only that the crime occurred,

but also that Petitioner participated therein. This man,

who had been convicted of a Federal offense carrying a

heavy penalty, now serving his time, who had been robbed

at gun-point of the loot of his robbery, were he actuated

by any motive, purpose or desire in his testimony, would

have testified for revenge against the man who, as it

were, had added insult to injury. Hill would have identi-

fied Petitioner for a certainty, assuming bis guilt. The Gov-

ernment having failed to call him, the law presumes that

the tenor of his testimony would have been favorable to

the Petitioner. and that either he was not rebbed and no

offense occurred, or that if he was robbed, it was by

person or persons other than Petitioner.

It is not believed presumptuous to ask this Court to

judicially recognize the high degree of efficiency, in the

conduct of its investigations, achieved by the Federal

Bureau of Investigation. This corps of fine, highly-trained,

patriotic Americans, with every scientific assistance to the

conduct of their investigations and the apprehension of

law violators, has achieved such significant results and so

often has accomplished the near miraculous, as to have

excited the imagination and to have earned for them the

respect of us all. It is common knowledge that these in-

vestigators will leave no stone unturned in the gathering

of evidence. If this be true, then from the evidence we

must conclude that these able investigators were either

unable to unearth any evidence or else that such informa-

tion as was unearthed was discarded as of no assistance in

the prosecution. This case is devoid of any evidence that

must have been available to trained investigators, such evi-

; 16

dence as may have been obtained from the representatives

of Eastern Air Lines, who may have confirmed that Evelyn

McCarthy and Hill missed a flight to Lake Charles and

instead left for New Orleans, that Petitioner and his

alieged co-participators determined from such airlines the

destination of Evelyn McCarthy and Hill. The record is

devoid of any testimony on the part of any employees

of airlines or other persons who may have been in the

terminal at New Crleans when Evelyn McCarthy lost her -

purse and searched the airplane and the terminal building.

The evidence is devoid of the testimony of the cab dis-

- patcher who may have confirmed that Petitioner and his

co-participators learned of the destination of Evelyn

McCarthy and Hill from the cab driver and the cab dis-

patcher. The evidence is devoid of any testimony of hotel

employees or other persons who may have been able to

identify Petitioner, Ralph McCarthy or Doris Andrews in

the Hotel St. Francis in New Orleans. The record is devoid

of any testimony or other evidence reflecting cross-country

cab trips; surely it must be so unusual in the experience

of tke operators of taxicabs, that when four people take

a cab cross-country from New Orleans, Louisiana, to

Heuston, Texas, that fact would have lasting register on the

memory of the cab driver. The record is devoid of the

testimony of the custodian of Safety Deposit Boxes at the

South Main State Bank, who is still employed there, who

may have been able to testify to conversations with Peti-

tioner and who might have been able to testify as to what

was placed in or taken out of the box in question; no

showing of the contents of the box is made though such

was possible under subpoena, and this box had not been

entered since September 23, 1955, over 15 months before

Petitioner was indicted. Can it be presumed that the FBI,

17

in the conduct of its investigations, failed to seek this evi-

dence which is significant by its absence? The contrary is

more consistent with eur conception of the Government’s

resources and abilities.

Because the Government has been unable to corroborate

the fantastic story related by its witnesses Evelyn McCarthy

and Doris Andrews, and because so many opportunities to

corroborate that story are afforded by the very nature

of this incredible tale, it is respectfully submitted that this

is perhaps the most significant circumstance of all that

appears from the evidence. It is urged that this circum-

stance, if nothing more, would leave the state of the evi-

dence such that it is equally consistent with the Petitioner’s

innocence as it is with his guilt. In such a case no con-

viction can be had. Dahly v. U. S. (8th Cir., 1931), 50

F. 2d 347.

This case represents an appalling example of what can

happen when all is cast aside for the sake of securing a con-

viction, when the Government prosecutors will rely on the

established prestige and respect which Government officials

have earned for themselves, to carry their burden of proof,

when a jury is asked to believe people who are unworthy

of belief and who tell a fantastic story, asked to believe

them merely because the Government vouches for their

credibility. The Court of Appeals has sanctioned this con-

viction, and the only hope for restraint of this unjust prac-

tice rests with this Court.

For the reasons assigned, it is respectfully urged that this

Court issue its Writ of Certiorari to review the decision’

of the Court of Appeals for the Fifth Circuit in this case,

and upon such review that Petitioner’s conviction be set

18

aside and such further proceedings be ordered as may be

consistent with the ends and demands of justice.

Coy U ice Spawn

Counsel of Record for

Petitioner

733 Bankers Mortgage Building

Houston 2, Texas

WitiiaM H. Scott, Jr.

Counsel for Petitioner

725 Bankers Mortgage Building

Houston 2, Texas

I certify that a true complete printed copy of the fore-

going Petition for Writ of Certiorari was mailed to William

B. Butler, United States Attorney, Att.: Gordon J. Kroll,

Assistant United States Attorney, 205 Post Office Build-

ing, Houston 2, Texas, on this the _ _____ day of February,

1958.

WitutaM H. Scort, Jr.

19

APPENDIX A-.

IN THE

Anited States Court - Aneals

FOR THE FIFTH CIRCUIT

No. 16735

Jack Wayne Ly tes, Appellant,

versus

Unrrep States oF America, Appellee

Appeal from the United States District Court for the

Southern District of Texas

(December 10, 1957.)

Before HUTCHESON, Chief Judge, and RIVES and

JONES, Circuit Judges.

PER CURIAM: Charged in a one count indictment

with transporting in interstate commerce, in violation of

Sec. 2314, Title 18, U.S.C., $22,000 in United States cur-

rency, knowing it had been. stolen, defendant was con-

victed on evidence consisting in large part of the testi-

mony of two women accomplices.

20

Appealing from the judgment and sentence, defendant

is here, under five specifications of error, insisting in

effect (1) that because, as he claims, there was no cor-

roboration of the accomplice testimony, a judgment of

acquittal should have been, and should be, directed, and

(2) that, if not, the case was submitted on improper or

inadequate instructions on the matter of corroboration,

and the judgment should be reversed because of errors

of commission and omission in the charge in respect

of corroboration.

Briefly summarized, the four errors claimed under No.

2 above are: (1) the charge to the jury that it could

consider whether there was corroboration of the ac-

complice testimony; (2) the failure of the court to in-

struct the jury, at defendant’s request, that the testimony

of the accomplice was uncorroborated as matter of law;

(3) its failure to charge that the testimony of one ac-

complice could not corroborate the testimony of the

other; and (4) the failure to give in charge to the jury

defendant’s requested charge No. 2, that too much re-

liance should not be placed on the accomplice testimony

unless the jury found it to be corroborated by other

evidence connecting the defendant with the act of guilt.

On its part, appellee invokes the established rule in

the federal courts that it is not for the judge but for the

jury to say whether the testimony of witnesses is

entitled to credence and should be believed, Beland v.

U. S., 100 F(2) 289, Banks v. U. S., 147 F(2) 628, and that

“while received with caution and weighed with great

care, uncorroborated testimony of an accomplice is to

be accorded whatever credence ‘the trier of fact may

think it deserves.” Doherty v. U. S., 230 F(2) 605. Cit-

21

ing the uniform holding of the federal courts, that it is

not necessary to a conviction on the testimony of an

accomplice that the testimony be corroborated and that

a refusal to instruct as to the value of the testimony

of an accomplice is not error for which a judgment should

be reversed; Diggs v. U. S., 220 Fed. 545; affirmed 242

U.S. 470; and reaffirmed in Pina v. United States, 165

F(2) 891; it insists that, in the light of the evidence

in the case and of the court’s careful and painstaking

charge, particularly with respect to accomplice testimony,

defendant’s appeal is completely without substance, in-

deed frivolous. We agree.

The basic fallacy of defendant’s contentions as to the

necessity of corroboration, and particularly of his re-

liance upon the dictum in Holmgren v. United States,

217 U.S. at page 524, as requiring such a charge to be

given upon pain of reversal if it is not, is completely

exposed and swept away in Judge Garrecht’s Opinion

in the Pina case, supra. Because it is, we will attempt

no labored argument here. Saying only that the evj-

dence was not only sufficient to take the case to the

jury, but that, considered as a whole, it was credible

and convincing and that the charge of the court on ac-

complice testimony was completely, indeed more than,

fair to defendant, we will content ourselves with the

statement of the law as that opinion sets it forth:

“This court has held that refusal to give an

instruction regarding the credibility of an ac-

complice is not reversible error. In Diggs v.

United States, 9 Cir., 220 Fed. 545, $52, 553,

Judge Gilbert said:

22

‘First. A refusal to instruct as to the value

of the testimony of an accomplice is not error

for which a judgment should be reversed. * * *

and it is believed that no court, state or federal,

has held that it is reversible error to refase to

caution the jury to scrutinize with care the testi-

mony of an accomplice. * * *

‘In the present case the court inscructec’ the

jury that the evidence must be such as to satis-

fy their minds beyond a reasonable doubt and to

a moral certainty, and said that they should

take into consideration the character and conduct

of each witness, his relation to the controversy

and to the parties, his expressed or apparent bias

or partiality, the reasonableness or unreasonable-

ness of the statements he makes, and all other

elements which tend to throw light upon his ~

credibility.’

“In affirming the judgment of this court in

the Diggs case, supra, the Supreme Court, in 242

U.S. 470, 495, 37 S. Cr. 192, 198, 61 L. Ed. 442,

L.R.A. 191 F 502, Ann. Cas. 1917B, 1168, used

the following language: ‘It is urged as a further

ground of reversal of the judgments below that

the trial court did not instruct the jury that the

testimony of the two girls was that of accom-

plices, and to be received with great caution

and believed only when corroborated by other

testimony adduced in the case. We agree with

the circuit court of appeals that the requests

in the form made should not have been given.

ane

23

In Holmgren vy. United States, 217 U.S. 509, 30

S. Ct., 588, 54 L.Ed. 861, 19 Ann. Cas. 778, this

court refused to reverse a judgment for failure

to give an instruction of this general character,

while saying that it was the better practice for

courts to caution juries against too much re-

“liance upon the testimony of accomplices, and

to require corroborating testimony before giving

credence to such evidence. While this is so,

there is no absolute rule of law preventing con-

victions on the testimony of accomplices if juries

believe them.’ (Authorities cited) (Emphasis

supplied )

“This doctrine has been followed in other cir-

cuits. Referring to the caution against the testi-

mony of accomplices, Judge Learned Hand, in

United States v. Becker, 2 Cir., 62 F(2) 1007,

1009, said: “The warning is never an absolute

necessity. It is usually desirable to give it;

in close cases it may turn the scale; but it is at

most merely a part of the general conduct of the

trial, over which the judge’s powers are discre-

tionaty, like his control over cross-examination,

or his comments on the evidence. If he thinks it

unnecessary—at least when, as here, the guilt

is plain—he may properly refuse to give it. Such

we understand to be the upshot of the decisions.

(Many cases cited)’

“The same rule has been adopted ‘even in

cases where the confederate appears for the pros-

ecution motivated by hope of immunity.’ Weaver

v. United States, 8 Cir., 111 F(2) 603, 608. Cf.

Wellman v. U. S., 6 Cir., 297 F. 925, 933, 934.”

24

We add only particular reference to Stoneking v.

United States, 8 Cir., 232 F(2) 385, at p. 391; United

States v. Bucur, 7th “Cir., 194 F(2) 297, at p. 305;

Haakinson v. United States, 8 /Cir., 238 F(2) at p. 779;

Gormley v. United States, 4th Cir., 167 F(2) 454, at p.

457; McClanahan v. United States, Sth Cir., 230 F(2) at

p. 292; and that a thorough examination of the citations

in Shephard’s Notes to the Holmgren case and the multi-

tude of cases citing the Diggs case, show not a single

divergence from the rule of the latter case, nor any case

where a reversal was ordered for the failure to give

the so-called Holmgren charge.

The judgment is AFFIRMED.

25

APPENDIX B

Excerpt from Magazine Article “I was born to do

wrong!” by Doris Andrews (“True Police Cases” July

issue, Vol. 9, No. 101). Italicized matter is that which

contradicts her testimony on direct examination.

“One night Eve (intending Evelyn McCarthy) went

out on a $150 date. She came back as excited as a

cat in a catnip bed and threw $1,200 down on the

table.

‘Look at this!’ she exclaimed, picking up a $100

bill with one end charred.

“That jerk I was with has a duffel bag full of

money’, Eve chattered. ‘He lights cigarets with $100

bills!’

Ralph (intending Ralph McCarthy) and Pete

(whom on the trial the authoress identified as the

petitioner, Jack Wayne Lyles) jumped up and looked

at the money. Their eyes were shining.

‘How much you figure he has, doll?’ Ralph asked.

‘I don’t know’, replied Eve. ‘But he wants me to

go to New Orleans with him,’

‘New Orleans!’ Pete shouted. ‘Well, go to New

Orleans with him. We'll be along later.’

Pete and Ralph worked it out with Eve, ignoring

me. I’m glad they did. Eve was to go to New

Orleans with the mark and register at a certain hotel.

She was to make sure that the mark—and his money

—were in the room at a certain hour on a certain

day. The rest Pete and Ralph would take care of.

‘Don’t worry’, smiled Eve, twisting a hip. ‘He'll

be in the room—in bed!’

26

She packed a bag and left hurriedly. Ralph and

| Pete and I went the next day, after Pete had made

| some inquiries via the grapevine.

‘This is a cinch’, Pete laughed. ‘The guy is a bank

heister. The money is his share of the loot from bis

last job. 1 don’t think he’ll squawk to the cops, do

you?

Ralph laughed. It did look airtight.

In New Orleans, we drove directly to the botel

where Eve and the bank robber were registered. Ralph

and Pete left me at the elevator and walked around

the corner to the room. Eve told me later what hap-

pened.

Two minutes later, Ralph, Pete and Eve came aur-

rying to the elevator. Pete was lugging a canvas bag.

I learned later that there was just under $25,000 in

the bag.

We went to Dallas. I wanted to get loose, but

Pete had taken a liking to me, and made me stay with

him. In Dallas, he bought me $2000.00 worth of clothes. :

Then we headed for Las Vegas.

From Vegas, we went to Albuquerque, New

Mexico.

Pete was crazy about horse racing. In Albuquerque,

he bought some thoroughbreds, 1 don’t know how

many, and a flashy Lincoln. One day, however, he

left town, telling us to take a plane and join him

in Houston.

We did, but when I got back to my home town,

I decided that I’d had enough of that crowd. I walked

out on them.

The next I heard about the trio, they were in a

jam. For the FBI had nabbed the bank bandit whose

loot Pete and Ralph had hijacked. Pete had been wrong

27

about him squawking. The bandit had spilled his guts

to the G-Men, and since Eve had given the guy her

real name, it wasn’t hard for the Feds to trace the

people who had robbed the robber.

They were too slow for Ralph, however. He was

killed in an automobile accident. Meanwhile, Eve

was picked up, and she made a written statement.

On the basis of that statement, the FBI arrested Pete

a few months ago and charged him with interstate

transportation of stolen money.

They came after me, too. I was working in a

variety store when they walked in and identified them-

selves. I went to the FBI offices and corroborated Eve’s

statement, but I wouldn’t give them one of my own.

And I told them I wouldn’t testify, either. For I

didn’t actually see the men rob the bank bandit. I

couldn’t identify him as the victim, and 1 never saw

any of the money. 2

A few days later, pilled up and wild, I was af-

rested and given (60) days for possession of barbitu-

rates.”