Hastings, Senior Circuit Judge, and Cummings and Pell, Circuit Judges.
HASTINGS, Senior Circuit Judge.
Defendants Jewel Dandridge, Charles Matthews and Harold Terrell were charged jointly in a one-count indictment with violation of Title 18, U.S.C.A. § 659, returned by a grand jury of the United States District Court for the Southern District of Illinois, Southern Division.
The indictment charged that defendants, on or about December 2, 1968, in Madison County, Illinois, "unlawfully, willfully and knowingly and with intent to convert to their own use, did embezzle, steal, take and carry away from a Railroad car #KCS 56280, chattels of a value in excess of $100, that is 35 scrap automobile radiators, while said railroad car was moving in interstate commerce under KCS waybill 17965, dated November 25, 1968 from Kansas City, Missouri to Chicago, Illinois; * * *."
Defendants were each represented at all times in the trial court by separate court-appointed attorneys. After a trial by jury and denial of motions for acquittal, defendants were each found guilty. Post-trial motions for judgment of acquittal and for a new trial were denied. Defendant Dandridge was sentenced to eight years imprisonment and defendant Matthews to seven years imprisonment.
The foregoing sentences were imposed on May 14, 1969. Subsequently, on November 20, 1969, the trial court, having discovered that it had failed to advise defendants Dandridge and Matthews at the time of sentencing of their right to appeal, pursuant to Rule 32(a) (2), Federal Rules of Criminal Procedure, Title 18, U.S.C.A., sua sponte issued a writ of habeas corpus ad prosequendum ordering the production of said defendants before the court. Pursuant thereto, each was brought before the court on December 1, 1969 with his attorney. The sentences previously imposed were vacated and Dandridge was sentenced to serve five years and Matthews to serve four years. They were then advised of their right of appeal and each filed his notice of appeal.*fn1 Court-appointed trial counsel were granted leave to withdraw and we appointed new appellate counsel jointly for Dandridge and Matthews.
Issues on appeal generally relate to a number of alleged trial errors and to the sufficiency of the evidence to sustain the jury guilty verdict. It requires no citation of authority to state that for the purposes of this appeal the record evidence must be considered in the light most favorable to the Government.
We have examined the record and in particular that part referred to by the parties. The jury would have been amply justified in finding the following factual situation.
On or about December 1, 1968, a railroad freight car of the Kansas City Southern Railway Company, KCS 56280, was moving a shipment of scrap brass from Kansas City, Missouri to Chicago, Illinois. As a part of a freight train, this car was pulled on to the Illinois Terminal Railroad tracks about 8:00 p.m. The train was parked on one of two railroad tracks adjacent to the Eagle Park area of Madison, Illinois.
In the early morning hours of December 2, 1968, Eugene F. Moore, a railroad detective for the Illinois Terminal Railroad, received a report of activity in the field adjacent to the tracks in the Eagle Park area. He proceeded to the McKinley Junction Yard of the railroad where he met with railroad agent Lane. Together they observed the activities of three men in the field and around KCS 56280 from approximately 2:30 a.m. to 3:00 a.m. Moore had been in the field about 5:00 p.m. the day before and there were no automobile radiators in the field at that time.
Moore and Lane saw the three men carrying what later proved to be scrap brass automobile radiators from a pile in the center of the railroad track 15 or 20 feet from the open car KCS 56280. The men carried them to a point about 100 feet away and dropped them in another pile. The agents heard the clinking noise of metal being dropped on metal. The three men were seen carrying radiators from the latter pile to another pile about 200 yards away in the field. There were four railway cars with open doors in the area where the three men were seen walking. A broken railroad seal was found underneath the open door of KCS 56280.
After observing the activity of the three men for a period of about 20 to 25 minutes, the two agents stopped two of the men, who proved to be defendants Dandridge and Terrell, and each of them was carrying two scrap radiators. Moore ordered the men to drop the radiators, to turn around and proceed back along the path from which they had come. Moore and Lane followed and after walking about 50 yards they saw a third man coming toward them. It proved to be defendant Matthews, who also was carrying two radiators. He was similarly apprehended. No other person was observed by the agents in the field that night, although a search was made.
All three men were taken back to the track to car KCS 56280, the west door of which was open. The car contained scrap brass, including a large number of brass radiators. The agents found 35 scrap radiators in the field in the area that night. They weighed a total of 679 pounds. None of the three men was seen to enter the railroad car.
The broken railroad seal found by the agents that night was a strip of metal bearing number G-594907, with a prefix "KCS Lines." The seal attached to the closed door on the other side of ...