Dauer v. United States, No. 4228.
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | BRATTON, HUXMAN and PICKETT, Circuit |
| Citation | 189 F.2d 343 |
| Parties | DAUER v. UNITED STATES. |
| Docket Number | No. 4228. |
| Decision Date | 29 May 1951 |
189 F.2d 343 (1951)
DAUER
v.
UNITED STATES.
No. 4228.
United States Court of Appeals Tenth Circuit.
May 12, 1951.
Rehearing Denied May 29, 1951.
Homer Davis, Leavenworth, Kan., for appellant.
V. J. Bowersock, Asst. U. S. Atty., Topeka, Kan. (Lester Luther, U. S. Atty., Topeka, Kan., and Nicholas F. Lopes, Asst. U. S. Atty., on the brief), for appellee.
Before BRATTON, HUXMAN and PICKETT, Circuit Judges.
HUXMAN, Circuit Judge.
Appellant John Henry Dauer and Avington Rayborn Hutchins were jointly indicted in an indictment containing two counts. Count 1 charged them with the violation of the Federal Kidnapping Statute, 18 U. S.C. § 1201 (a) and count 2 charged them with the violation of the Dyer Act, 18 U.S.C. § 2312. Each defendant was represented by separate counsel appointed by the court. The jury found them guilty on both counts. Appellant was sentenced to twenty-five years on count 1 and 5 years on count 2, the sentences to run consecutively. Hutchins has not appealed.
Appellant's contention is that the court erred in denying his motion for a separate trial. His motion for severance was based on the ground that his co-defendant Hutchins had made a written confession, in which he had tried to vindicate himself at the expense of the appellant, by claiming that appellant forced him at the point of a gun to participate in the offense, and that this created such an antagonism between the two defendants that it was impossible for appellant to have a fair trial, when tried jointly with Hutchins.
Prior to the motion for severance, the Government announced that it did not intend to use Hutchins as a witness, neither did it intend to use his confession. The record shows that the Government did not use Hutchins as a witness, nor did it use his confession. Under Rule 14 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.,1 the granting of a severance rests within the sound discretion of the trial court and its judgment thereon will not be reversed, except for clear abuse of discretion.2 The mere fact that there is hostility between defendants or that one may try to save himself at the expense of another is in itself alone not sufficient grounds to require separate trials.3 It is only when the situation is such that the exercise of common sense and sound judicial judgment should lead one to conclude that one defendant cannot have a fair trial, as that term is understood in law, that a severance should be granted. We find no such...
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