Barnes v. United States

• Decision Date: 05 April 1967
• Docket Number: No. 23221.,23221.
• Citation: 374 F.2d 126
• Parties: Elton Ray BARNES and Bunchie White, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

374 F.2d 126 (1967)

Elton Ray BARNES and Bunchie White, Appellants, v. UNITED STATES of America, Appellee.

No. 23221.

United States Court of Appeals Fifth Circuit.

February 28, 1967.

Rehearing Denied April 5, 1967.

Charles Mays, Jr., David O. Belew, Jr., Fort Worth, Tex., for appellants.

Robert S. Travis, Asst. U. S. Atty., Fort Worth, Tex., Melvin M. Diggs, U. S. Atty., for appellee.

Before TUTTLE, Chief Judge, and JONES and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

Appellants Elton Ray Barnes and Bunchie M. White were tried together in the United States District Court for the Northern District of Texas and found guilty by a jury of breaking into Post Office Station No. 5, Fort Worth, Texas, with intent to commit larceny, and of stealing from a mail receptacle located at Station No. 5. 18 U.S.C. §§ 2115, 1708. Barnes was individually convicted of the theft of a postal money order validating stamp from Post Office Station No. 9, Fort Worth. 18 U.S.C. § 642. White was individually convicted of breaking into Post Office Stations No. 11 and 16, Fort Worth, with intent to commit larceny. 18 U.S.C. § 2115.

White attacks his conviction on the grounds that the trial court erred in denying his motion for continuance and for subpoena in forma pauperis of certain medical witnesses and in admitting the testimony of Dr. Preston Harrison. Barnes claims that the trial court erred in denying his motion for severance, in admitting into evidence certain items found at his residence and in admitting his oral confession made while in federal custody.

Whether to grant a motion for severance is within the sound discretion of the trial judge. Peterson v. United States, 344 F.2d 419 (5 Cir. 1965); Milam v. United States, 322 F.2d 104 (5 Cir. 1963); Garcia v. United States, 315 F.2d 679 (5 Cir. 1963). We have carefully reviewed the record and find that Barnes was not prejudiced by a joint trial. The motion for severance was grounded on the contention that admissions and confessions by White would prejudice Barnes. Both Barnes and White made admissions and confessions in the presence of each other and they have a marked similarity. The court took great care to adequately charge the jury that statements made by one of them could not be used against the other. The trial was not unduly complicated, and was not confused. The record discloses no injury or prejudice in this regard. We therefore conclude that the trial court's denial of the motion for severance was not an abuse of discretion.

It is also within the sound discretion of the trial court as to whether a motion for continuance and subpoena in forma pauperis should be granted. White's motion was made as the trial was nearing completion and the record clearly shows unjustifiable delay in presenting this request. White's key defense was insanity and his attorney knew that back in 1956 a jury had found him insane. In fact the committal judgment was in evidence. There had been a pretrial hearing on White's mental competency some three weeks prior to the trial on the merits. At the last minute White asked that the doctors who had examined him in 1956 be brought in as witnesses. The record before us does not indicate that the trial court abused its discretion in denying the motion. Flanagan v. United States, 308 F.2d 841 (5 Cir. 1962); Estep v. United States, 251 F.2d 579 (5 Cir. 1958); Beebe v. Sanford, 138 F.2d 412 (5 Cir. 1943).

White also contends that the testimony of Dr. Preston Harrison, who conducted mental examinations of White in 1956, constituted privileged communication between physician and patient and therefore was inadmissible. At the trial no objection was made to Dr. Harrison's testimony. The existence of the privilege is based upon statute and since Texas does not recognize the physician-patient privilege, it is not available to White. St. Louis Southwestern Ry. Co. of Texas v. Richardson, 218 F.2d 283 (5 Cir. 1955); Neville v. Brewster, 163 Tex. 155, 352 S.W.2d 449, 451 (1961); 3 Wharton's Criminal Evidence, § 816 (12 Ed. Anderson 1955); 8 Wigmore, § 2380 (McNaughton, 1961); 61 Tex.Jur.2d § 121, p. 687.

The purchaser's receipt for a postal money order, a sledge hammer and a ball peen hammer taken from Barnes' residence pursuant to a duly issued search warrant were not specifically listed in the search warrant. For that reason Barnes contends the items were inadmissible in evidence. The search warrant was issued in accordance with Rule 41(b) (2), F.R.Crim.P. which authorizes search warrants for property which has been used in the commission of criminal offenses. Since the postal money order stub and hammers fell into this category it was not necessary that they be specifically listed in the warrant. It is our conclusion that they were lawfully seized and properly admitted into evidence. Johnson v. United States, 110 U.S.App.D.C. 351, 293 F.2d 539 (1961); Bryant v. United States, 252 F.2d 746 (5 Cir. 1958); United States v. Russo, 250 F.Supp. 55 (E.D.Pa.1966).

Finally, Barnes claims his confession is inadmissible because he was not advised of his rights and was unreasonably detained before being taken before a United States Commissioner. Barnes was arrested by state authorities on state charges on February 3, 1965, and was not turned over to federal authorities until February 9, whereupon he was immediately taken before a United States Commissioner. While waiting for the arrival of the Commissioner, Barnes confessed. The record demonstrates that federal agents were not responsible for Barnes' detention by state authorities nor was there any collusion between state and federal officers. The record clearly shows that the federal authorities complied with Rule 5(a) F.R.Crim.P. and were not delinquent in taking Barnes before the Commissioner without unnecessary...