Richards v. United States, 20472.

• Decision Date: 21 April 1964
• Docket Number: No. 20472.,20472.
• Citation: 329 F.2d 188
• Parties: Joseph Linwood RICHARDS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

329 F.2d 188 (1964)

Joseph Linwood RICHARDS, Appellant, v. UNITED STATES of America, Appellee.

No. 20472.

United States Court of Appeals Fifth Circuit.

March 19, 1964.

Rehearing Denied April 21, 1964.

Walter G. Arnold, Jacksonville, Fla., for appellant.

Robert R. Perry, Sp. Asst. U. S. Atty., William J. Hamilton, Jr., Asst. U. S. Atty., Edward F. Boardman, U. S. Atty., Middle Dist. of Florida, Jacksonville, Fla., for appellee.

Before TUTTLE, Chief Judge, and PHILLIPS^* and JONES, Circuit Judges.

TUTTLE, Chief Judge.

This appeal from a conviction and sentence of the appellant for the crime of perjury in testimony given to a Grand Jury is based primarily on the admission by the trial court of testimony tending to prove general bad conduct and the commission of prior criminal offenses by the accused.

The two count indictment charged the appellant with having sworn falsely while giving testimony before a Grand Jury in Tampa, Florida, in that he swore that he was not in Tampa on or about December 26 and 27, 1960, and that he swore falsely that a certain package received at his father's home did not contain money. The Grand Jury investigation, during which the testimony was given, was investigating a large robbery of an armored car on the night of December 26, 1960. During his appearance before the Grand Jury, appellant was questioned at length about his association with Hubert Hardin, his whereabouts on or about the time of the Rasdale armored car burglary, and whether or not he had received a package of money from Hubert Hardin shortly after the Rasdale burglary. It was in this context that the Government contended on the trial below that testimony given by appellant as to his not being present in Tampa on December 26 and 27 was material to the inquiry then being made by the Grand Jury. It is the Government's further contention that in order to show not only the materiality but the wilfullness which is an ingredient of the charge of perjury,¹ it was necessary on the trial for perjury to prove that the appellant had had an association with Hardin of a nature that would permit the jury to determine that his decision to testify falsely to the Grand Jury was based on a desire to prevent the Grand Jury from obtaining the truth as to appellant's whereabouts at the time of the crime.

The grounds of appeal fall into two general classes. The first relates to what appellant concedes to have been inadvertent statements made by Government witnesses while testifying that would disclose to the jury that appellant had a prior criminal record. Objection was made by counsel for appellant in response to some of these statements, but in no case did counsel specifically request the trial court to instruct the jury to disregard the statements when it was apparent that the trial court had failed to do so. Moreover, counsel did not move for a mistrial when it was apparent to what extent the Government witnesses' testimony might be damaging to the accused.

The second major ground for attacking the legality of the trial arises from what was admittedly a voluntary effort on behalf of the Government to prove a connection between the appellant and his brother Albert with the man Hardin while the latter was confined to a state prison camp, and circumstances which tended to show that appellant and his brother might have assisted in effecting Hardin's escape from the prison camp. This testimony was brought in by the Government both by cross-examining Albert Richards and by putting witnesses on the stand who testified to these facts. Objection was made on behalf of appellant that Albert's cross-examination went beyond the scope of proper cross-examination. As to this, we find that the trial court did not abuse its discretion.

The more important objection, however, was as to the entire line of testimony which showed the connection of the accused with Hardin while he was in the state prison camp and thereafter. Complaint is made, of course, that this testimony was introduced by the Government for the purpose of creating a picture of the accused as an associate of convicts and degraded...