Dewitt v. United States

• Decision Date: 12 October 1967
• Docket Number: No. 23505.,23505.
• Parties: Samuel Edward DEWITT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

383 F.2d 542 (1967)

Samuel Edward DEWITT, Appellant, v. UNITED STATES of America, Appellee.

No. 23505.

United States Court of Appeals Fifth Circuit.

October 12, 1967.

John L. Wheeler, Chattanooga, Tenn., for appellant.

F. D. Hand, Jr., Asst. U. S. Atty., Atlanta, Ga., Charles L. Goodson, U. S. Atty., for appellee.

Before TUTTLE, BELL and SIMPSON, Circuit Judges.

PER CURIAM:

The conviction below was by jury verdict under a count charging violation of Title 18, U.S.C. Section 2313, receiving and concealing a stolen motor vehicle moving as, constituting, and a part of interstate commerce from Chattanooga, Tennessee, to Walker County, Georgia. The appellant was acquitted under a companion count charging interstate transportation on the same date, February 9, 1965, of the same motor vehicle, knowing it to have been stolen, under Title 18, U.S.C. Sec. 2312.

Two errors are urged on appeal: (1) the denial by the trial court of a motion to suppress evidence (Rule 41(e), F.R.Crim.P.) seized under a Georgia search warrant executed by Georgia officers, and introduced in evidence at trial; and (2) the failure of the trial court to give a cautionary charge as to the weight to be given accomplice testimony. We affirm.

As to the first question, we hold that the search, and the warrant on which it was based met United States constitutional standards as laid down in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. In addition to the matters set forth in the search warrant and the supporting affidavit, the issuing magistrate heard sworn testimony clearly establishing probable cause. See Marshall v. State, 113 Ga. App. 143, 144, 147 S.E.2d 666; Veasey v. State, 113 Ga.App. 187, 147 S.E.2d 515.

The testimony of an accomplice was admitted and considered by the jury. No request for a special charge on the weight to be accorded accomplice testimony was made to the District Judge. No such charge was given. No objection was made to the court's charge after it was delivered, although an opportunity to object was afforded counsel by the court in the absence of the jury. (See Rule 30, F.R.Crim.P.). Under these circumstances we would have to conclude that the omission was "plain error" (Rule 52(a), F.R.Crim.P.) in order to reverse the trial court on this ground. Such a conclusion is in our judgment not justified on the record here, in view of the extensive corroboration of the accomplice's testimony and the strong and convincing nature of the proof of guilt by other witnesses. See our cases of Dunn v. United States, 5 Cir. 1963, 318 F.2d 89, 93; Phelps v. U. S., 5 Cir. 1958, 252 F.2d 49, 53; and Joseph v. United States, 5 Cir. 1960, 286 F.2d 468, 469.

One additional matter requires our notice, although not raised on appeal. The appellant, 22 years of age plus a few months at the time of trial and sentence, was sentenced as a "Youth Offender" defined, Title 18, U.S.C. Sec. 5006(e) as a person under the age of twenty-two years at the time of conviction under the provisions of Title 18, U.S.C. Sec. 5010(b), as shown by both the formal commitment and the oral pronouncement of sentence by the trial judge following appellant's allocution. A defendant so sentenced, is by the terms of Sec. 5010(b) released under the provisions of Title 18, U.S.C. Sec. 5017(c), which requires mandatory conditional release under supervision within four years and mandatory unconditional release within six years from date of conviction. In orally delivering sentence the trial judge mistakenly informed the appellant that under the Federal Youth Corrections Act (F.Y.C.A.) (Chapter 402, Title 18 U.S.C. Secs. 5005-5026) his release would be mandatory at age twenty-five, which age the appellant...