Breeze v. United States

• Decision Date: 05 July 1968
• Docket Number: No. 9646.,9646.
• Citation: 398 F.2d 178
• Parties: David Eugene BREEZE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

398 F.2d 178 (1968)

David Eugene BREEZE, Appellant, v. UNITED STATES of America, Appellee.

No. 9646.

United States Court of Appeals Tenth Circuit.

July 5, 1968.

COPYRIGHT MATERIAL OMITTED

Byron M. Gray, Topeka, Kan., for appellant.

Guy L. Goodwin, Asst. U. S. Atty. for District of Kansas (Newell A. George, U. S. Atty., on the brief), for appellee.

Before MURRAH, Chief Judge, PICKETT, Senior Circuit Judge, and DELEHANT, Senior District Judge.^*

DELEHANT, Senior District Judge.

On June 6, 1966, one Joyce Marie Michael and the appellant, David Eugene Breeze, each accompanied and represented by separate counsel theretofore appointed by a duly qualified United States Commissioner, for her and him respectively, appeared in open court, as from the clerk's court room minute sheets and otherwise, it appears, in Wichita, within the District of Kansas, and, after adequate instruction, each of them, within the provision of Rule 7(b), Federal Rules of Criminal Procedure, both orally and in writing, and with the court's approval, waived prosecution by indictment, and consented to prosecution by information. Thereupon, a single information was filed in the office of the Clerk of the United States District Court for the District of Kansas in Case No. W-Cr.-758 therein, against both Joyce Marie Michael and the present appellant, David Eugene Breeze as defendants. Therein, it was charged that:

"Continuously from on or about March 15, 1966, until on or about May 6, 1966, in the District of Kansas and within the jurisdiction of this court,

JOYCE MARIE MICHAEL and DAVID EUGENE BREEZE

wilfully did harbor, conceal and assist James Warren Michael, who had deserted from the Armed Forces of the United States, knowing him to have deserted therefrom, in that they obtained and rendered to James Warren Michael at Rural Route 3, Cherryvale, Kansas, protection, sustenance and services as might prevent his discovery and apprehension, in violation of 18 U.S.C. 1381, 2."

After the filing of such information, and still on June 6, 1966, each of the defendants named therein, including particularly the appellant, David Eugene Breeze, again appeared with such counsel in open court at Wichita, and was duly arraigned upon the charge against her or him, as the case may be, made in such information; and such defendants, including the appellant, David Eugene Breeze, tendered separate and individual pleas of NOT GUILTY to said charge, which pleas were, by that court, severally accepted.

A single Motion for Severance of those two defendants for trial was served and filed in behalf of both defendants, also on June 6, 1966. It was, initially, and on December 7, 1966, denied and overruled. But, thereafter, pursuant to a motion by the defendant, David Eugene Breeze, for reconsideration of that ruling, and on February 10, 1967, responsive to an intervening factual occurrence not presently vital, that motion was sustained, and in consequence of that ruling separate trials of the two defendants were had, and were conducted thereafter, infra.

Trial before a jury of Joyce Marie Michael was had at Topeka, Kansas on February 13, 1967; at the conclusion whereof, and on the same day, the jury's verdict therein was returned and accepted finding her to be guilty as charged. On March 13, 1967, upon that verdict, judgment of guilty was entered as against Joyce Marie Michael, and the imposition of sentence was suspended, and Joyce Marie Michael was placed on probation, for the period of three years. She made timely appeal to this court, and, on the submission of such appeal, this court, composed of the three judges presently acting herein, has heretofore entered an order and judgment reversing and remanding for a new trial the case as against her, see Michael v. United States, 10 Cir., 393 F.2d 22.

Trial of David Eugene Breeze, hereinafter generally called the appellant, was had before a jury in the United States District Court for the District of Kansas, at Topeka, Kansas, on April 5, 6 and 7, 1967. At its completion the jury therein found and returned, as against the appellant, David Eugene Breeze, a verdict of guilty, which was received and filed. The appellant timely served and filed a motion for a new trial. That motion, upon its submission on May 12, 1967, was overruled by the trial court. Thereafter, and on May 19, 1967, the appellant appeared in open court for sentencing. The court then suspended the imposition of sentence and placed the appellant upon probation for the period of two years. The present appeal ensued, and it was taken in due season, and has been submitted to this court.

Preliminarily, this court, as it did in Michael v. United States, supra, and for reasons essentially indistinguishable from those therein declared, signifies its opinion that, notwithstanding the suspension of sentence upon, and grant of probation to, David Eugene Breeze, he is entitled to prosecute his present appeal. It is considered unnecessary to amplify, or further to support, that view.

It is here observed that in some respects this case may be considered in this court as a companion case to Michael v. United States, supra. It is true, supra, that the two cases here arose out of a single information filed in the District Court, wherein both of the defendants — appellants here — were identically accused of the commission of a single, and the same, offense, supra. Yet, they were eventually tried separately, supra; and in those several trials, each defendant-appellant was represented by a different attorney, for her or him appointed by the Commissioner under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A Consequently, each of the two appeals has been presented before this court on its own record; and those records are not completely identical. Nevertheless, since both of them arose out of evidence touching happenings involving the same two people, through a short interval of time, and within a narrow territorial area, their basic factual ingredients do not differ widely. And this court has undertaken presently to accord due consideration both to the disparities, and to the similarities or identities between the two records, and to make disposition of each case, including the present one, upon its own record.

On the present appeal, the appellant, at the outset, contends that the trial court erred in its rejection of his motion tendered at the close of the evidence for an instructed verdict of not guilty. The motion thus identified was made in a single sentence. It was in this language: "the defendant at this time moves the court for an instructed verdict of acquittal." It did not specify or paticularize the ground, or grounds, whereon it was premised. Undoubtedly, it was adequate, despite its lack of specificity, to tender both or either of the positions, (a) that the information was insufficient to allege the commission by David Eugene Breeze of a criminal offense against the United States; and (b) that the evidence was insufficient to support a conviction of the offense, if any, adequately alleged in the information against David Eugene Breeze.

The information has already been quoted verbatim herein, and it is not presently being repeated. It was, too obviously for doubt, prepared and filed with a view to conformity alone to the second unnumbered paragraph of Title 18 U.S.C., Section 1381. So far as it has present pertinence, that paragraph of the cited section of the code contains this language:

"Whoever harbors, conceals * * * or assists any such person who may have deserted from such service, knowing him to have deserted therefrom, * * * shall be fined not more than $2,000 or imprisoned not more than three years, or both."

From the also unnumbered paragraph immediately preceding the last quoted unnumbered paragraph, it is manifest that the words, "any such person," supra, allude solely to "any person in the Armed Forces of the United States, or who has been recruited for service therein;" and that the words, "deserted from such service," allude solely to "deserted from service in the Armed Forces of the United States."

It is, therefore, unquestionable that the information in the present case unmistakably accused each and both of the two defendants therein named, including the present appellant, of the violation of the quoted language of the second unnumbered paragraph of Title 18 U.S.C. § 1381, within the interval beginning on or about March 15, 1966 and ending on or about May 6, 1966, i. e. approximately fifty-two days; and charged that such violation occurred, "in that they obtained and rendered to James Warren Michael at Rural Route 3, Cherryvale, Kansas, protection, sustenance and services as might prevent his discovery and apprehension." This court, therefore, regards the information as invulnerable to a motion for dismissal based upon the asserted essential inadequacy of the information itself.

Moreover, as will presently appear from the consideration herein of the alleged insufficiency of the evidence to support the verdict of guilty, this court is of the opinion that the evidence upon the trial, if believed, was and is sufficient to warrant a finding by the jury that the appellant, David Eugene Breeze, within the interval embraced in the information, rendered to James Warren Michael at Rural Route 3, Cherryvale, Kansas, protection and services — and, quite narrowly, sustenance — "as might prevent his discovery and apprehension," and thereby "harbored, concealed and assisted James Warren Michael." The opinion of this court thus circumscriptorily reflected, does not, either expressly or implicitly, signify a conclusion by this court either that at the time involved, James Warren Michael was guilty of desertion from the Armed Forces of the United States, or that the appellant, David Eugene Breeze, knew that he was so guilty, if guilty he were. Those are questions vitally important, indeed, the prime ingredients underlying any possible guilt on...