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COTTEN v. UNITED STATES.

No. 8428.

Circuit Court of Appeals, Fifth Circuit.

Nov. 10, 1937.

Jno. B. McNamara, of Waco, Tex., for appellant.

W. R. Smith, Jr., U. S. Atty., and H. W. Moursund, Asst. U. S. Atty, both of San Antonio, Tex., and Walter S. Howe, Asst. U. S. Atty., of El Paso, Tex., for the United States.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

FOSTER, Circuit Judge.

Appellant was convicted of the offenses of cutting and otherwise injuring a mail pouch, with intent to steal the mail therein contained, and with stealing from the mail some $8,600. The only point raised and argued as ground for reversal of the judgment is that the evidence was not sufficient to support the charges.

Appellant was employed in carrying the mail by automobile from Waco, Tex., to Mart, Tex., a town about 20 miles distant. It is not disputed that the mail sacks were cut and otherwise mutilated and the money was stolen therefrom while en route between these places in his custody, on October 18, 1935. Appellant denied his guilt and testified, in substance, that he was forced off the road by another car while en route and was held up at the point of a pistol by a man who got out of that car; that this man compelled him to turn around, put his hands in the air, then opened the door by his side, reached over the back of the seat, cut open the mail sacks and extracted the money, which he put in the other car and then drove away. No other witness testified to the occurrence as related by appellant. No part of the money had been recovered at the time of the trial, which was some two years later. There was testimony from a number of witnesses tending to show that it was highly improbable, if not impossible, for the robbery to have taken place in the manner described by appellant.

On the evidence appearing in the record the case was for the jury and appellant was not entitled to a directed verdict. It is elementary that the jury is not obliged to accept the testimony of a defendant as a witness at its face value if they consider it improbable or if for other reasons they disbelieve it.

Showing that appellant started on the journey with the money in his custody, in mail bags that were intact, and subsequently the bags were cut open and the money extracted and stolen, while the mail was still in his custody, without a reasonable explanation exculpating appellant, would be sufficient to support the conclusion that he was guilty as charged.

The record presents no reversible error. The judgment appealed from is affirmed.

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