Butler v. United States, 10582.
Decision Date | 18 January 1951 |
Docket Number | No. 10582.,10582. |
Citation | 88 US App. DC 140,188 F.2d 24 |
Parties | BUTLER v. UNITED STATES. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Richard M. Roberts, Asst. U. S. Atty., Washington, D. C., with whom Messrs. George Morris Fay, U. S. Atty., and Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.
Before PROCTOR, BAZELON and WASHINGTON, Circuit Judges.
Appellant was convicted of the crime of unlawful possession of marihuana and of certain narcotics.1 Among the grounds relied upon for reversal is the trial court's refusal to allow appellant's counsel, at the conclusion of the charge and before the jury left the room, to describe with particularity his objections to the manner in which the charge was delivered. This incident is reported in the transcript of the proceedings below for February 15, 1950.2 The following colloquy took place at the bench, not in the hearing of the jury:
We think the court erred in its view that appellant could not "take any exception to gesticulation and facial expression" or "call one instance" to the court's attention. In Billeci v. United States, D.C.Cir., 1950, 184 F.2d 394, 402, which had not yet been decided at the time of the trial below, we laid down the rule to be followed by court and counsel when such objections are made: The wisdom of that rule lies not only in the protection that it affords to both the court and the accused, but in the basis it provides for appellate review.
On September 5, 1950, more than six months after the trial and shortly after our decision in the Billeci case, counsel for both parties were requested to appear before the court below. From the transcript of that supplemental proceeding, it appears that an attempt was made to correct whatever possible error there may have been in the court's treatment of appellant's exception to the charge. At the outset, the trial judge stated that while he had been advised by the Government that "the transcribed record * * * is susceptible to the interpretation that defense counsel was not given an opportunity to note his exceptions to the Court's charge in full," he did not agree that that was the case.3 Nevertheless, he offered "to give counsel a fuller opportunity to make any additions to any exceptions that he wished to note or now wishes to note, and this can be sent up as a supplemental record * * *."4 This opportunity was refused by appellant's counsel, who took the position that since an appeal had been filed in this court, the trial court was without jurisdiction and the supplemental proceeding designed to "correct the record" was a nullity.
We do not dispute the Government's contention that a supplemental proceeding in the District Court, either before or after an appeal has been noted, is authorized by the Federal Rules where the transcript of record contains "misstatements" or omissions "by error or accident".5 Such a proceeding would obviously be proper if, for example, the court stenographer had recorded some part of the proceeding below incorrectly or had accidentally omitted something. But it is necessary to keep in mind that correction of the record may be made only with regard to "`what occurred in the district court'".6 Nothing in the rules authorizes the trial court to use a supplemental proceeding under Rule 75(h), Fed.Rules Civ.Proc. 28 U.S.C.A.,7 as a means of supplying a record which was never made. There was no omission in the transcript here of anything which actually transpired below; instead, there was a denial of the opportunity to make a record on the point in issue. At no...
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U.S. v. McCord
...of guilt. For that we must rely on defense counsel to build a record or at least make some effort to do so. See Butler v. United States, 88 U.S.App.D.C. 140, 188 F.2d 24 (1951); Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394 (1950). McCord has built no such record in this case.......
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...sustained a prosecution objection to a line of questioning by Lee's counsel.15 See Trial Tr. at 554, 557; Butler v. United States, 88 U.S.App.D.C. 140, 188 F.2d 24 (1951). The Court's suggestion that this abrupt denial could not have deterred efforts by defense counsel to further develop in......
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...on this type of alleged prejudicial conduct by the Court should be taken by counsel out of the hearing of the jury. Butler v. United States, 88 U.S.App.D.C. 140, 188 F.2d 24. However, in the pending case counsel had already made a similar protest to the Court in chambers, apparently without......
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...the rule of Billeci v. United States, 87 U.S.App.D.C. 274, 281-82, 184 F.2d 394, 401-402, 24 A.L.R.2d 881, and Butler v. United States, 88 U.S.App.D.C. 140, 188 F.2d 24. The contention is amplified by the argument that at a bench conference after charging the jury the court would not permit......