Bennett v. United States
| Decision Date | 17 February 1961 |
| Docket Number | No. 18385.,18385. |
| Citation | 285 F.2d 567 |
| Parties | Lyman Moody BENNETT, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Holvey Williams, Joseph A. Calamia, Daniel Y. Garbern, El Paso, Tex., for appellant.
Russell B. Wine, U. S. Atty., San Antonio, Tex., Lawrence L. Fuller, Asst. U. S. Atty., El Paso, Tex., for appellee.
Before TUTTLE, Chief Judge, and JONES and BROWN, Circuit Judges.
Appellant was convicted by a jury on each of two counts of an indictment charging:
The essential words of the indictment are substantially those of 18 U.S.C.A. § 1111 and it was under this provision that appellant was convicted and sentenced to 18 months on the first count and two years on the second, the second sentence to commence at the expiration of the first but being suspended for three years during which time appellant was to be placed on probation without supervision.
Appellant was at the time of the events on which his conviction was based the owner of a 70,000-acre ranch located entirely within the United States but situated on the Mexican border. A portion of that property within a very short distance of the border was used for the production of cotton, and it is uncontroverted that a number of "wetbacks", citizens of Mexico illegally within the territorial limits of the United States, were employed to pick the cotton. On the date in question several officers of the United States Border Patrol entered appellant's property for the purpose of searching for persons illegally within this country.2 It appears that officers of the Border Patrol often made visits to appellant's ranch for this purpose and that they and appellant were on friendly terms.
It also appears that appellant had knowledge of the presence of at least one officer of the Border Patrol on November 13, 1959. That officer was driving a pick-up truck, to which was attached an empty horse trailer, on a private road on appellant's ranch, when he was overtaken by appellant and stopped and asked the reason for his presence. Appellant ascertained that the trailer was empty. He then drove off in the direction of the cotton fields, and was closely followed by the officer in the truck. The officer testified that appellant fired one shot into the air from his rifle; appellant claimed that he did not.
Meanwhile, officers McCutchen and Whitman, on horseback, approached the cotton fields and captured two citizens of Mexico who attempted to run to the nearby river, then so shallow that it could be crossed on foot, presumably to return to the safety of their homeland. They brought these persons back to a road near the cotton fields; at about that time appellant arrived in his automobile, still followed by the truck. What next happened is in dispute, but the jury was authorized to believe the version told by the officers and several Mexican workers who were employed in the immediate vicinity.
According to Officer McCutchen, appellant drove up, got out of his car with his rifle in his hand, took several steps toward him, and pointed the rifle in his direction. "I hollered, `Put that gun down', but before that he had said, `Get those sons of bitches out of here or I am going to kill the whole goddam works.'" McCutchen drew his pistol, and then appellant shot and killed McCutchen's horse. Appellant was struck on the head at least two times and was disarmed.
Appellant's story is materially different. He says he drove up to the cotton field, saw two men whom he took to be cowboys from the manner in which they were dressed, and shouted for them to get their horses out of the field. The men then crowded close to his automobile, abused him in opprobrious language, and fired two shots into the automobile, the first hitting the steering wheel and breaking into fragments which injured appellant's hand and the second passing through his arm and into the front seat. The shooting, says appellant, frightened the horses and he sought to take advantage of the situation by attempting to "booger", or scare them further, to which end he left his automobile and attempted to place himself between the two horsemen to prevent them from shooting at him. He claims that they fired additional shots at him and that it appeared that one of the horses might topple on him, at which point he shot the horse; it was only after this, says he, that he first recognized the rider of the dead horse as Officer McCutchen; he then dropped his rifle. He claims that McCutchen attempted to shoot him after this and did beat him with his pistol, McCutchen being stopped only by the intervention of Officer Whitman.
Of course, in a case in which the facts are so in dispute but in which each version of the story is believable, the jury might properly have determined either version to be true. The resolution of factual issues is the peculiar province of the jury, and an appellate court will not disturb their findings unless they appear to be without substantial evidence to support them. That is not the case here, nor does appellant attempt to argue that the verdict returned by the jury is against the weight of the evidence. Rather, his theory which, he argues, will justify a reversal for a new trial is based on other grounds.
The most substantial points raised by appellant in this appeal go to the sufficiency of the indictment. He contends that the indictment should have been quashed because it erroneously was based on the theory that a Border Patrol Inspector is a "person designated in Section 1114 of Title 18, United States Code"; that the indictment was insufficient in law in that it failed to allege that appellant "knowingly" assaulted an officer or that he feloniously or illegally did the act, appellant claiming that knowledge of the official character of the person assaulted is necessary to constitute the crime of which he was charged; that the indictment was duplicitous in that it charged more than one offense in each single count.
We find these objections to be without merit. Going to the first point, it seems abundantly clear that the provisions of § 111, taken in conjunction with those of § 1114, are sufficiently broad to include officers of the Border Patrol within that class of governmental personnel sought to be protected thereby. Section 1114 refers to "any immigration officer", and the mere fact that officers McCutchen and Whitman were engaged in duties relating to immigration should be enough to bring them within the protection of the acts. We hold that they were and are such immigration officers as contemplated by the act. It is unimportant that § 1114 does not include the words, "Border Patrol".
Neither are we persuaded by appellant's argument that the indictment was insufficient because it failed to include the element of scienter....
To continue reading
Request your trial
-
43 541 United States v. Feola 8212 1123
...States v. Wallace, 368 F.2d 537 (CA4 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1169, 18 L.Ed.2d 136 (1967); Bennett v. United States, 285 F.2d 567, 570—571 (CA5 1960), cert. denied, 366 U.S. 911, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961); United States v. Kiraly, 445 F.2d 291, 292 (CA6), cert. ......
-
U.S. v. Hall
...rule applies where, as here, the trial judge recuses himself or herself from the sentencing proceedings. See, e.g., Bennett v. United States, 285 F.2d 567, 572 (5th Cir.1960), cert. denied, 366 U.S. 911, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961). The record reveals no abuse of discretion, moreove......
-
In re Grand Jury Investigation
...v. Hall , 171 F.3d 1133, 1153 (8th Cir. 1999) ; United States v. Sartori , 730 F.2d 973, 976 (4th Cir. 1984) ; Bennett v. United States , 285 F.2d 567, 572 (5th Cir. 1960). The authorities Miller cites to support his interpretation—the Vacancies Act of 1868 and Moog Inc. v. United States , ......
-
In re Grand Jury Investigation
...trial judge recuses himself or herself"); United States v. Sartori , 730 F.2d 973, 976 (4th Cir. 1984) (same); Bennett v. United States , 285 F.2d 567, 572 (5th Cir. 1960) (concluding that a trial judge properly had recused himself where the judge "appear[ed] to have had knowledge of the fa......