Berry v. United States

• Decision Date: 28 October 1960
• Docket Number: No. 16446.,16446.
• Citation: 283 F.2d 465
• Parties: Charles Edward Anderson BERRY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

283 F.2d 465 (1960)

Charles Edward Anderson BERRY, Appellant, v. UNITED STATES of America, Appellee.

No. 16446.

United States Court of Appeals Eighth Circuit.

October 28, 1960.

Merle L. Silverstein, St. Louis, Mo., Rosenblum & Goldenhersh, with Merle L. Silverstein, St. Louis, Mo., on the brief, for appellant.

Frederick H. Mayer, Asst. U. S. Atty., Malcolm R. Wilkey, Asst. Atty. Gen., and William H. Webster, U. S. Atty., St. Louis, Mo., Frederick H. Mayer, St. Louis, Mo., on the brief, for appellee.

Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.

PER CURIAM.

Charles Edward Anderson Berry, thirty-three years of age and a married man, is a musician, entertainer, actor, song writer, and stockholder in Chuck Berry Music Corporation, which owns a night club in St. Louis, Missouri, known as "Chuck Berry's Club Bandstand". Berry is a Negro. He was, on December 23, 1959, charged by indictment with having knowingly transported in interstate commerce from El Paso, Texas, to St. Louis, Missouri, a girl known as Janice Norine Escalanti, with the intent to induce her to engage in immoral practices; a violation of 18 U.S.C. § 2421. To the indictment, Berry entered a plea of not guilty. He was tried to a jury, found guilty, and on March 11, 1960, sentenced to five years' imprisonment and to pay a fine of $5,000. He has appealed.

On Berry's behalf it is contended that his motion for a directed verdict of acquittal, made at the close of the evidence, should have been granted on the ground of the insufficiency of the evidence to show the intent necessary to make his transportation of the girl a criminal offense. It is also contended that he did not have a fair trial because of "the hostile and prejudicial conduct and remarks of the trial court," and that the trial judge erred in certain rulings on evidence and in his instructions to the jury.

We think it would serve no useful purpose to discuss this case in detail. If there is to be a retrial, the rulings on evidence of which complaint is made are unlikely to recur, and we doubt that any of them affected the defendant's substantial rights. See Heglin v. United States, 8 Cir., 27 F.2d 310, 313. The charge of the trial court as a whole was, in our opinion, adequate, fair and accurate. Berry was not entitled to a directed verdict of acquittal. There was ample circumstantial evidence of his intent, when he picked up the girl in El Paso, to make the issue of his guilt one for the jury. See and compare: Shama v. United States, 8 Cir., 94 F.2d 1, 4 and cases cited; Dunn v. United States, 10 Cir., 190 F.2d 496, 498; United States v. Mathison, 7 Cir., 239 F.2d 358, 360-361; Garner v. United States, 8 Cir., 277 F. 2d 242, 245. What a man does is often more indicative of his intent than what he says. Intent, like any other fact, may be circumstantially proved. "Triers of fact are constantly called upon to determine the intent with which a person acted." Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 743, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659. The evidence of the Government with respect to the relations existing between Berry and the girl on the trip from El Paso, Texas, to St. Louis, Missouri, and after their arrival in St. Louis, amply justified an inference that his initial intent in transporting her was to have her engage in immoral relations with him.

What has given us concern is whether the attitude, conduct and remarks of the trial judge which are complained of, must be held to have made the trial unfair. This Court has not been unduly critical of sharp remarks made by a trial judge to counsel for a defendant with respect to rulings on evidence. In Goldstein v. United States, 8 Cir., 63 F.2d 609, 613, it was contended that misconduct of the trial judge required a...