Bratcher v. United States

• Decision Date: 18 June 1945
• Docket Number: No. 5344.,5344.
• Parties: BRATCHER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

149 F.2d 742 (1945)

BRATCHER v. UNITED STATES.

No. 5344.

Circuit Court of Appeals, Fourth Circuit.

May 9, 1945.

Writ of Certiorari Denied June 18, 1945.

Milton Kramer, of Washington, D. C. (Joseph A. Fanelli, of Washington, D. C., on the brief), for appellant.

George R. Humrickhouse, Asst. U. S. Atty., of Richmond, Va. (Harry H. Holt, Jr., U. S. Atty., of Norfolk, Va., and Fred E. Strine, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.

Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.

Writ of Certiorari Denied June 18, 1945. See 65 S.Ct. 1580.

NORTHCOTT, Circuit Judge.

This is an appeal from a judgment of conviction and sentence in the District Court of the United States for the Eastern District of Virginia, at Alexandria, under which appellant was sentenced to imprisonment for a term of four years and fined in the sum of $1,000 for violation of Section 11 of the Selective Training and Service Act, 50 U.S.C.A.Appendix § 311, in evading service in the armed forces by presenting himself for induction pursuant to an order issued by his draft board in Washington, D. C., while in an abnormal physical condition resulting from the use of benzedrine which he had allegedly theretofore taken for the purpose of rendering his physical condition abnormal.

The indictment against the appellant, herein referred to as the defendant, was in three counts. The trial judge directed a verdict of not guilty on count one and the jury found the defendant not guilty on count three, but guilty on count two. We are only concerned on this appeal with count two which charged that on or about November 23, 1943, at Fort Myer, Arlington County, Virginia, the defendant, a registrant within the meaning of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 1 et seq., and regulations thereunder, did knowingly, wilfully, unlawfully and feloniously evade service in the land and naval forces of the United States, in that he presented himself to the armed forces induction station and to the medical examiners thereof for induction, pursuant to an order of Local Board No. 1 of Washington, D. C., while in an abnormal physical condition resulting from the use of a drug popularly known as benzedrine, which drug theretofore had been taken by the defendant for the purpose of rendering his physical condition abnormal and thus causing his rejection for service.

Prior to trial defendant moved to suppress the evidence obtained as a result of the physical examination which was given him on November 23, 1943, at the induction station at Fort Myer, on the ground that such examination was conducted for the purpose of obtaining evidence to be used against him and hence constituted an illegal search and seizure in violation of the Fourth Amendment to the Constitution, with the further result that the use of the evidence thereby obtained was compulsory self-incrimination in violation of the Fifth Amendment. After a hearing at which evidence was taken on the motion, the court denied it on the ground that defendant had totally failed to carry the burden resting on him to show that the object of the examination was to secure evidence to be used against him in a criminal prosecution.

A trial was had in November, 1944, at Alexandria. After the verdict, the defendant moved for a new trial which motion was denied and after sentence the defendant brought this appeal.

The defendant, about thirty years of age, was the organizer, manager, and conductor of a dance orchestra in Washington, D. C., and registered for the draft on October 16, 1940, in Washington, D. C., where he then and continuously thereafter resided and worked. On December 2, 1941, he was classified 1-B (for limited military service) on account of defective eyesight. On February 6, 1943, he was ordered to report on February 18, 1943, for induction, but that order was rescinded by his draft board. On March 16, 1943, he was classified III-A because of his ailing mother's dependency upon him for her support. On August 16, 1943, he was ordered to report for induction on August 28th, but was rejected and on September 15, 1943, was placed in IV-F (physically unfit for military service). Two months later, on November 12, 1943, he was again ordered to report for induction on November 23rd.

Upon reporting on November 23, 1943, defendant was sent to the Fort Myer induction station where his blood pressure was found to be 164/102, and he was sent to the Fort Myer Station Hospital for twenty-four hours for observation. During the observation period it developed from an analysis of his urine that the defendant had been taking a drug called benzedrine. This is a drug that has the effect of increasing blood pressure and is taken as a stimulant by persons who desire to keep awake. The Government contends that the defendant admitted having taken tablets the night preceding his examination on August 28, 1943, and during the night on November 22, 1943, and the early morning of November 23, 1943, he took two or three tablets and after reporting for induction that morning he again took two more tablets at the Fort Myer Station Hospital.

Several witnesses testified that the defendant admitted that he had taken the drug for the purpose of increasing his blood pressure and insuring his rejection by the examining board. There was medical evidence tending to show that the effect of the drug was to increase blood pressure.

A number of points are raised by the defendant which are urged as reversible error:

1. Whether the Court erred in permitting a juror, one C. J. Ford, to sit as a member of the jury. This juror upon being questioned on his voir dire, stated that he had not formed or expressed an opinion as to the guilt or innocence of the defendant and that he knew of no reason why he could not hear the testimony and return a true verdict according to the law and the evidence. In response to a question by defendant's counsel as to whether he could judge the case as fairly as if he did not have two sons in the service, the reply was "No, I guess not". Counsel asked no further questions and made no objection when the court accepted Ford as a juror.

2. Whether the trial court erred in overruling defendant's motion to suppress certain evidence obtained at his examination in the hospital, in November.

3. Whether the trial court had jurisdiction.

4. Whether the corpus delicti was proven other than through alleged admissions of the defendant.

5. Whether the trial court erred in not granting defendant's motion to strike the testimony of witness Chambers who testified as to the urinalysis.

6. Whether the trial court erred in admitting in evidence, over defendant's objection and exception, Government Exhibit 3, an empty bottle alleged to have contained a specimen of urine.

7. Whether the court erred in sustaining the Government's objection to defendant's efforts to show that his examination in November, 1943, was not given him for the purpose of inducting him but only for the purpose of obtaining evidence.

8. Whether error was committed in permitting cross-examination of certain character witnesses.

9. Whether it was prejudicial to the defendant to permit the case to go to the jury on the third count.

10. Whether it was error to overrule defendant's motion for a directed verdict of acquittal on the second count.

11. Whether there was error in the charge of the court to the jury.

12. Whether it was error to adjourn the jury the night of November 28, during the taking of the evidence.

13. Whether there was error committed by the prosecuting officer in his argument to the jury.

14. Whether there was error in not granting a new trial because the foreman of the jury brought into the jury room, during the jury's deliberations, a newspaper containing a discussion of the case.

We will consider each of these points in the order in which they are enumerated.

The examination of the juror, Ford, upon his voir dire, as set out above, seems to have been full and fair. When juror Ford was accepted by the court defense counsel did not accept and did not strike the juror. The trial judge is vested with a wide discretion in determining the competency of jurors and his judgment will not be interfered with except in the case of an abuse of discretion. Lias v. United States, 4 Cir., 51 F.2d 215, affirmed per curiam 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505; see also Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann. Cas. 1138; Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Assaid v. United States, 4 Cir., 10 F.2d 752. We are of the opinion that the action of the court in accepting Ford as a juror was correct and did not prejudice the rights of the defendant.

The trial judge took evidence on the motion to suppress the evidence obtained while the defendant was in the hospital. A number of witnesses were heard and the trial judge in an able written opinion overruled the motion on the...