400 F.2d 866 (5th Cir. 1968), 24957, Burke v. United States

Docket Nº:24957.
Citation:400 F.2d 866
Party Name:Jimmie Dane BURKE, Appellant, v. UNITED STATES of America, Appellee.
Case Date:September 23, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 866

400 F.2d 866 (5th Cir. 1968)

Jimmie Dane BURKE, Appellant,

v.

UNITED STATES of America, Appellee.

No. 24957.

United States Court of Appeals, Fifth Circuit.

Sept. 23, 1968

Page 867

John N. Gallaspy, Bogalusa, La., for appellant.

Harry F. Connick, Asst. U.S. Atty., New Orleans, La., for appellee.

Before TUTTLE and DYER, Circuit Judges, and MEHRTENS, District Judge.

TUTTLE, Circuit Judge:

This appeal presents clearly and concisely the question whether a conviction for the violation of 18 U.S.C.A. § 111, 1 comports with the law upon proof that the accused wilfully assaulted a federal official covered by the protection of the act, without either allegation or proof that when so assaulting the accused knew that his victim was a federal agent.

This appeal raises only this point. There is no dispute but that Jimmie Dane Burke wilfully and intentionally attacked FBI Agent Robert L. Wertman, who was photographing incidents of violence occurring during a civil rights march in Bogalusa, Louisiana. Although there may have been evidence in this trial sufficient to have warranted a jury in finding that Burke actually had knowledge of the identity of Agent Wertman, this is unimportant because at a charge conference and in the actual charge to the jury, the trial court stated that such knowledge is not essential to a conviction, if the jury found that the assault, defined by the court to require wilfulness and intent, actually occurred on an agent of the United States while actually engaged in the performance of his duties.

This case is controlled by the recent decision of this court in the case of Pipes v. United States, 5 Cir., 399 F.2d 471 (dec. July 30, 1968). However, in light of the concurring opinion by Judge Godbold in that case it may be appropriate to point out that a case based upon Section 111, as construed by this court, is not submitted to the jury without a charge that the 'assault' must be an intentional act wilfully done without legal excuse. The trial court here carefully charged the jury in defining the term 'assault':

'Any intentional and unlawful threat or attempt to commit injury upon the person of another, when coupled with an apparent present ability so to do, and an intentional display of force such as to place the victim in reasonable apprehension of immediate bodily harm constitutes an assault. An assault may be...

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