Butler v. United States, 16899.
| Decision Date | 22 May 1958 |
| Docket Number | No. 16899.,16899. |
| Citation | 254 F.2d 875 |
| Parties | Clayton BUTLER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Julian Hartridge, Savannah, Ga., for appellant.
Joseph B. Bergen, Asst. U. S. Atty. Savannah, Ga., William C. Calhoun, U. S. Atty., Augusta, Ga., for appellee.
Before RIVES, BROWN and WISDOM, Circuit Judges.
This case, as does Cook v. United States, 5 Cir., 254 F.2d 871, concerns the effect of a district judge inquiring of the jury as to its numerical standing. After having been out for about fortyfive minutes, the jury was recalled to the courtroom for the purpose of making arrangements for lunch, and the court inquired of the jury: "Let me ask you all something; have you about reached an agreement or not? The foreman replied: "We are about as far apart as we were when we started." The court then stated: To which the foreman replied:
That such an inquiry constitutes error is well established.1 Even though the question was first raised on appeal during oral argument before this court, it is such plain error as must be considered by this court.
We must, however, further consider whether the error should be disregarded because, under the circumstances of the particular case, it "does not affect substantial rights." Rule 52(a) Federal Rules of Criminal Procedure, 18 U.S. C.A.
In Brasfield v. United States, supra, the error was such as "affects the proper relations of the court to the jury, and cannot be effectively remedied by modification of the judge's charge after the harm has been done." 272 U.S. at page 450, 47 S.Ct. at page 136. Here the colloquy, which has been quoted, occurred about 1:00 P.M., just as the jurors, with the consent of the defendants,2 were allowed to separate for lunch. Upon their return at 2:30 P.M. they requested and were given additional instructions on the conspiracy count. One of the jurors wanted to know "if these men, either one or both of these defendants, knew what was a conspiracy," to which the court responded, with prompt reply from the jury, as follows:
Thereafter, the jury returned its verdict finding both defendants "Guilty of Conspirity (sic) Count 1 only Not guilty on all other Counts." Under all of the...
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