Burroughs v. United States

• Decision Date: 31 August 1966
• Docket Number: No. 8387.,8387.
• Citation: 365 F.2d 431
• Parties: Grady B. BURROUGHS, also known as Sam Grady Biggs, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

365 F.2d 431 (1966)

Grady B. BURROUGHS, also known as Sam Grady Biggs, Appellant, v. UNITED STATES of America, Appellee.

No. 8387.

United States Court of Appeals Tenth Circuit.

August 31, 1966.

Joe A. Moore, Sapulpa, Okl., for appellant.

Bruce Green, Muskogee, Okl. (Paul E. Harper, Muskogee, Okl., on brief), for appellee.

Before MURRAH, Chief Judge, and SETH and HICKEY, Circuit Judges.

MURRAH, Chief Judge.

Appellant appeals from a conviction and sentence on a five count indictment, each count of which separately charged that the appellant knowingly and wilfully uttered and published a false statement or document with the intent to influence the Federal Housing Administration in violation of 18 U.S.C. § 1010.

Two points are made on appeal: (1) The trial court erred in instructing the jury that evidence of appellant's flight was corroborative of guilt of the offense charged after having admitted such evidence for a more limited purpose; and (2) The court improperly influenced the jury to return a verdict after it had indicated it was unable to do so.

The evidence bearing on the question of flight is vague and sketchy, but as we understand, it is to the effect that after appellant was indicted in September, 1962, he apparently forfeited bail, became a fugitive and was later surrendered by his attorney and bondsman in April, 1963. He apparently thereafter again became a fugitive, a warrant was issued, and he was again apprehended in June, 1964. When the testimony tending to show these facts was objected to on the grounds that it did not "go to the guilt or innocence of the defendant for this particular crime", the court ruled the evidence admissible to "show trend and conduct * * * and not on any basis whatsoever with reference to the guilt or the innocence of the defendant on the charges here before you." Whereupon, defense counsel stated, "I think the Court has answered it. I will withdraw the objection. The Court has cleared it up very fine." In the court's instructions the jury was told that "the evidence of flight is a legitimate ground for the inference of guilt, and if you find from the evidence beyond a reasonable doubt that the defendant did flee, you should consider such evidence along with other evidence in the case in determining the defendant's guilt or innocence." At the conclusion of the court's instructions, defense counsel objected to "the instruction with reference to the evidence of the flight of the defendant."

We are not sure of the meaning of the court's first ruling on the evidence of flight as showing "trend and conduct". Unless the evidence bore some relevancy to guilt or innocence, we fail to discern any relevancy at all. But, the ruling of the court seemed to satisfy counsel, and no point of it is made on appeal. Even so, there was evidence from which the jury could find beyond a reasonable doubt that appellant did forfeit bail and leave the jurisdiction of the court after the charges against him. And, while the "probative value" of evidence of flight has been consistently doubted, i. e. see Wong Sun v. United States, 371 U.S. 471, 483, footnote 10, 83 S.Ct. 407, 9 L.Ed.2d 441; Miller v. United States, 116 U.S.App.D.C. 45, 320 F.2d 767, it has nevertheless been consistently held admissible as a "circumstance proper to be laid before the jury as having a tendency to prove his guilt." Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528, and see Rivers v. United States, 9 Cir., 270 F.2d 435; Thompson v. Harry C. Erb Co., 240 F.2d 452; Rosetti v. United States, 9 Cir., 315 F.2d 86; Wigmore on Evidence, 3rd Ed., § 276, p. 115; and see State v. Neal, 231 La. 1048, 93 So.2d 554, citing Wharton's Criminal Evidence, Vol. 1, p. 414, § 205 (12th Ed. 1955).

Appellant complains of the failure of the court to define flight, i. e. see Wilson v. State, 96 Okl.Cr. 137, 250 F.2d 72, but no definition was requested. Appellant's objection to the instruction did not distinctly state the grounds therefor, hence was insufficient to bring to the court's attention the inconsistency in its ruling. But, in any event, the court had a perfect right to change its mind in the course of the trial, and since the instruction was a correct statement of the law, no error can come of it.

The contention that the jury was coerced to return its verdict is presented on these record facts. After the case was finally submitted to the jury at 5:00 o'clock in the afternoon, but before retiring, the court told them that "we have been here quite a while but I should like for you to organize and see if you can't reach a verdict within an hour. If you can't, and on request of the jurors, we can do something about it, but let's work for about another hour, will you please?" One hour twenty minutes later the jury returned to the court room, apparently on call of the judge. Addressing the foreman, the court stated, "Now the court does not want to know numerically how you stand at all and it would be improper for you to tell me * * * but up to now I take it you have not been able to arrive at a verdict?" The foreman answered "That's right." The court again addressing the foreman stated, "I might ask, in your judgment as foreman of the jury, are you of the opinion that you might if you had a little more time to consider it?" The foreman replied, "Well, for the last three ballots we have...