Dickinson v. United States, 27007 Summary Calendar.

• Decision Date: 23 January 1970
• Docket Number: No. 27007 Summary Calendar.,27007 Summary Calendar.
• Citation: 421 F.2d 630
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Fred D. DICKINSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

421 F.2d 630 (1970)

Fred D. DICKINSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 27007 Summary Calendar.

United States Court of Appeals Fifth Circuit.

January 23, 1970.

S. Thompson Tygart, Jr., Jacksonville, Fla. (Court Appointed), for appellant.

Fred D. Dickinson, pro se.

John L. Briggs, U. S. Atty., Allan P. Clark, Asst. U. S. Atty., for appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

PER CURIAM:

Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 409 F.2d 804, Part I (5th Cir. 1969); and Huth v. Southern Pacific Company, 417 F.2d 526, Part I (5th Cir. 1969).

Because the issues on the merits of this appeal are narrow and simple we choose to pretermit discussion of the complex issue of whether the appeal was timely filed and whether there was excusable neglect for the alleged late filing, and to proceed directly to discussion of the merits.

The District Court instructed the jury as follows:

The defendant is not bound to explain anything and his failure to explain anything connected with the case cannot be considered by you as a circumstance that tends to prove the defendant guilty.

The jury was instructed also that the defendant was presumed innocent and that the government has the burden of proving each element of the charge beyond and to the exclusion of every reasonable doubt.

Failure to instruct on the right of an accused not to testify is not reversible error in the absence of a request. Cohen v. United States, 366 F.2d 363 (9th Cir.), cert. den. 385 U.S. 1035, 87 S.Ct. 771, 17 L.Ed.2d 682 (1967). The trial court may of its own volition charge on failure to testify. Bellard v. United States, 356 F.2d 437 (5th Cir. 1966). That is what the trial judge did in this instance. There was no objection to the charge at trial, and on this appeal we are pointed to no respect in which appellant says the charge was an erroneous statement of the law, only to the claim that it was too cursory, weak and inadequate. Even if this were a valid ground of objection at trial, which we need not decide, it would not be plain error as required by Fed.R.Crim.P. 52.

Appellant made a motion for new trial on grounds not here pertinent. When the motion was heard trial counsel for appellant reported to the District Judge that he had written a letter to a member of the jury, "asking him what the jury had relied on," and the juryman had replied with a letter setting out six factors, one of which was that the defendant had not taken the stand. The body of the juryman's letter is as follows:

Your inquiry concerning the jury findings in the Dickinson case in Federal Court October 20 is appreciated.

You presented a good case and should have no feelings of regret concerning the guilty verdict.

FIRST: Mr. Dickinson was traveling under two names.

SECOND: Mr. Dickinson was positively identified as the person breaking into a parked automobile.

THIRD: Mr. Dickinson (according to testimony) swerved his car toward a Federal officer who was holding his hand up to STOP the car rushing toward him.

FOURTH: According to testimony, Mr. Dickinson cut his car sharpley sic from the roadbed

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