566 F.2d 1304 (5th Cir. 1978), 77-5384, United States v. Parker

Docket Nº:77-5384.
Citation:566 F.2d 1304
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marvin Charles PARKER, Defendant-Appellant.
Case Date:February 06, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1304

566 F.2d 1304 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marvin Charles PARKER, Defendant-Appellant.

No. 77-5384.

United States Court of Appeals, Fifth Circuit

February 6, 1978

Page 1305

Michael J. Romeo, Birmingham, Ala. (Court-Appointed), for defendant-appellant.

J. R. Brooks, U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

On April 6, 1977, a federal grand jury returned a single count indictment charging defendant Marvin Charles Parker with knowing possession of a single barrel, sawed-off shotgun which had not been registered to him in the National Firearms Registration and Transfer Record. 26 U.S.C.A. § 5861(d). 1 At trial defendant admitted possession of the unregistered weapon, but contended that under certain emergency circumstances confronting him, his possession was legally excusable. Without objection from defendant, the trial court instructed the jury to disregard defendant's alleged reason for possessing the weapon. Defendant was convicted and sentenced to three years imprisonment. Finding no plain error in the court's instruction, we affirm.

In deciding this case we must look at the facts in the light most favorable to defendant, since defendant is entitled to jury instructions relating to a theory of defense for which there is any foundation in the evidence. United States v. Young, 464 F.2d 160, 164 (5th Cir. 1972); Perez v. United States, 297 F.2d 12, 15-16 (5th Cir. 1961).

Defendant shared a house with Willie Joe Martin and Isaiah Jones. On the morning of December 28, 1976, after a night of heavy drinking, the three men arose and began drinking again. On this occasion the men were joined by William "Country" Hawkins, who was a frequent early-morning visitor to the house. According to defendant's trial testimony, the conversation between the men became heated, and defendant insisted that Hawkins leave. Hawkins resisted, and when defendant attempted to assist him out, Hawkins cut defendant on the nose with a pocketknife. Defendant retrieved an unloaded shotgun from Jones' bedroom and ran across the street, where he waited until Hawkins came out of the house and drove away. Defendant reentered the house, but did not call the police, although...

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