Spells v. United States, 17348.
| Decision Date | 23 March 1959 |
| Docket Number | No. 17348.,17348. |
| Parties | Walter SPELLS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bernard A. Golding, William F. Walsh, Houston, Tex., for appellant.
William B. Butler, U. S. Atty., Dan Kennerly, Asst. U. S. Atty., Houston, Tex., for appellee.
Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.
Appellant Walter Spells and two others were tried and convicted for conspiring to violate the narcotics laws from October 15, 1957 to February 1, 1958 by receiving, concealing, possessing, transferring and selling marihuana in violation of the laws of the United States referred to in the indictment, which consisted of six counts. Appellant was convicted along with the two others under the conspiracy count, and was also convicted under Counts Two and Three charging him with acquiring three and one-half pounds of marihuana and transferring to a named person, and Count Six for acquiring five and one-half pounds of marihuana, in each instance without paying the required taxes and not in pursuance of the required written orders.
It will not be necessary to set out the facts, as the other two defendants did not appeal and appellant does not contend that the evidence was not sufficient to warrant his conviction. He bases his appeal upon three points, arguing that the court below erred in these particulars: that the court did not instruct the jury as to all of the essential elements constituting the offenses charged; that the court erred in stating to the jury that the matter was one of extreme importance; and, finally, that the court erred, upon the voir dire examination, in refusing appellant's request that the jurors be asked if they had ever sat on a narcotics case.
Considering first the arguments relating to the court's charge, we find them without merit. The charge of the court was unusually full and explicit and embraced many written requests made by appellant. The statute upon which each of the counts was based was read to the jury and the court went into detail in explaining, by illustration and otherwise, just what each statute meant as applied to the facts of the case. The evidence introduced by the Government was clear and, if believed by the jury, — none being offered on behalf of appellant and his codefendants — no conclusion could have been reached except that the defendants were guilty as charged. The jury had some uncertainty about the requirements for the affixing of stamps, and came back to the court for further instruction. The court read again from the statutes and was advised by the jury that the explanation was sufficient, and no exception was taken to that portion of the charge. Appellant did not point out any respect in which the trial court failed to give all of the written instructions requested by him, and did not except to the alleged failure of the court to charge properly and adequately the ingredients of the crimes charged. We think that the charge was adequate and that this contention is without substance.
The same is true of the portion of the charge excepted to by appellant, which is set out in the margin.1 This was the last paragraph of a charge covering fourteen pages in the record, in which the law and its application to the facts before the jury had been fully outlined. The jury had been charged that the government carried the burden of proving guilt beyond a reasonable doubt, that the accused had the right not to testify, free from any presumption based thereon, and the court had been quite liberal in protecting their rights. The language used certainly did not indicate that the judge had or expressed any idea as to whether the defendants were guilty or were innocent. We think that the criticism of the charge is entirely without substance.
The argument that the court below erred in refusing to ask the prospective jurors whether they had sat on a narcotics case had a firmer basis. It is settled that the court should, upon request, make a sufficient inquiry as to the background and attitudes of the jurors to enable the litigants, not only to challenge for cause, but to exercise their peremptory challenges. An examination of the facts should be made to determine whether the question was relevant and important, whether the information had been furnished in response to other questions by the court, whether the litigant exhausted other means of obtaining the desired information, and whether there was sufficient prejudice manifest to warrant the appellate court in declaring that the trial judge had abused its discretion and committed reversible error.
The case had been set down for trial with the acquiescence of all parties more than three weeks before the trial was begun. All three defendants had waived venue and agreed that the case be tried at Houston. The jury was selected and sworn in on Monday, March 24th, and the trial was entered upon the afternoon of Tuesday, March 25th.
On the voir dire the court asked the usual questions, explaining the nature of the charges against the three defendants, asking whether any jurors had heard anything about the case or knew any of the defendants or their lawyers, whether any of them had been employed as law enforcement officers, and whether any member of the panel felt, for any reason, that he could not try the case fairly and impartially, and then put this question to the prospective jurors:
Appellant, joined by the other defendants, asked that the court inquire whether any prospective juror had ever studied law, or had ever sat as a juror in a narcotics case. The court asked the former question, but declined to ask the latter, presumably because it felt that it was embraced within the general question quoted above.
As far as the record goes, the appellant had ample opportunity both before and after the selection of the jurors to determine from the court records and from outside inquiry whether any of said jurors had sat on narcotics cases. There was no showing that any juror had sat on a narcotics case previously, or that appellant made any inquiry to determine whether this was true, or what peculiar relevance the question had to the question of the fairness and impartiality of the jurors.2
The questions that should be asked upon a voir dire examination is a matter of discretion; and that discretion belongs to the trial court, not to us. Ours is the duty only to examine the...
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