Burke v. United States

• Decision Date: 23 September 1968
• Docket Number: No. 24957.,24957.
• Citation: 400 F.2d 866
• Parties: Jimmie Dane BURKE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

400 F.2d 866 (1968)

Jimmie Dane BURKE, Appellant, v. UNITED STATES of America, Appellee.

No. 24957.

United States Court of Appeals Fifth Circuit.

September 23, 1968.

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 committed without actually touching, striking, or committing bodily harm to another."

"Any intentional use of force upon the person of another, which results in unlawful touching of another, constitutes a battery.

"Unlawfully, as used in this instruction, means either contrary to law or without legal justification.

"Thus a person who, in fact, has the present ability to inflict bodily harm upon another, and willfully threatens or attempts to inflict bodily harm upon such person, may be found guilty of forcibly assaulting such person.

"The essential elements required to be proved in order to establish the offense charged in the indictment are, first, the act or acts of forcibly assaulting an agent of the Federal Bureau of Investigation while the agent was engaged in the performance of his official duties as charged; and secondly, doing such act or acts willfully, which means with bad purposes, to disregard the law."

This court first announced the rule relied on in Pipes, supra, in Bennett v. United States, 5 Cir., 1960, 285 F.2d 567. The Court of Appeals for the Fourth Circuit is of the same view, as announced in United States v. Wallace, 4 Cir., 1966, 368 F.2d 537, as is also the Court of...